|Regional Conference report||1984|
|My selection speech||July 1985|
|Forest branch minutes||July 8, 1985|
|62% rates increase||1987|
Respondents: N.F. Gerrard 1. + 4 Exhibits
IN THE HIGH COURT OF JUSTICEQUEENS BENCH DIVISIONCROWN OFFICE LIST
IN THE MATTER OF;- An Application by Martin John Baxter and Others on behalf of the Waltham Forest Ratepayers1 Action Group for Judicial Review
AFFIDAVIT OF NEIL FRANCIS GERRARD
I, NEIL FRANCES GERRARD of 2 Campbell Road, London E17 MAKE OATH and say as follows:
1. I have been a Councillor of the London Borough of Waltham Forest since1973. I have been the leader of the Labour Group since May 1983 and leader ofthe Council since May 1986.
2. Save as where is otherwise indicated the facts and matters deposed to In my Affidavit are true to my own knowledge or to the best of my information and belief.
3. I make this Affidavit on my own behalf. A draft of it has been seen by each and every other Councillor who is a member of the Labour Party ("they Majority Group") except for **** I am informed by each of them and verilybelieve that insofar as this Affidavit refers to matters within their ownknowledge, they agree with it.
4. I have read all the Affidavits which have to date been made by the Applicants in the course of these proceedings, and I have read in draft theaffidavit of MALCOLM WILLIAM CLIVE CHAMBERS. I would like to make it clear atthe outset that I do not accept the contentions made by the Applicants. In particular I do not accept that the decision to make the rate rise about whichthey complain was an improper exercise of discretion or in any way legallyunreasonable. Nor do I accept that the Majority Group which made it had fettered their discretion unreasonably in coming to the decision which theydid, or that they took that decision having closed their minds to properconsiderations which they ought to have taken into account. In particular, Ireject the allegation that the Councillors have bound themselves to obey theorders or instructions of any committee or body outside the Council containingmembers of the Labour Party, or indeed any other organisation, with regard tothe matters in this application.
5. I shall consider in turn five allegations which arise from theapplication for judicial review in this case. There are the allegations thatthe Majority Group accepted instructions as to how they should exercise theirvote and accordingly failed to exercise any independent discretion la thismatter; that the rate is unlawful being unreasonably high; that the consultation process was a sham; that the Council acted improperly in failing to set a new substitute rate at its meeting of 9th April 1987 and that It acted unlawfully in authorising officers to enter into the Deferred Purchaseand Parallel Loan scheme ("DPPL").
6. Improper Fettering of Discretion
I would like to deal with this matter by going chronologically throughthe events which led to the decision to increase the rates. There is nowproduced and shown to me marked "NFG1" a bundle of documents containingcertain minutes and other matters (in chronological order) involving theLabour Party in connection with this matter. I have collected together what Ibelieve to be all the relevant documents which are concerned with theinter-relationship between the Majority Group and the Labour Party or itscommittees. (I also understand that the Applicants have been given discoveryof all documents relating to the Council as such and that I therefore do notneed to exhibit these specifically to my Affidavit).
7. In May 1986, the Labour Party were successful in the Borough elections.We had fought the election campaign on an extensive manifesto which pledged,inter alia, to increase services for the Borough. The relevant passage is setout in the section under Political Aims in the "Economy and Employment"section. We recognised that many services are inadequate and theirdevelopment required additional finance. We also recognised that in the shortterm at least, a reasonable level of rate increase might be necessary for themaintenance and expansion of services. I have at all times had regard to theterms of our manifesto in carrying out my duty as a Councillor but I am wellaware of my duty to consider each issue on its merits and not simplyslavishly to implement the manifesto. I verily believe that each of theMajority Councillors is equally aware of his or her duty in this regard. Ibelieve that the Councillors at all times felt that they would want toimplement the policy set out in their manifesto without thereby breaching thelaw in any way.
8. On 4th August 1986 there was a meeting of officers with me and the deputy leader of the Council (Councillor Dennis) to discuss the guidelines for the policy review.
9. On the 2nd September 1986 I sent a letter to the Head of the PolicyAnalysis Unit giving details of the format in which I would require the policyreview reports.
10. On 25th September 1986 I reported on the policy review with the first estimate of rates for 1986/87 to a Labour Group meeting.
11. I would like to explain the role of the Labour Group meeting itself andits membership. The Labour Party Councillors follow the model standard rulesof the Labour Party for such group meetings of Councillors and Labour Partymembers. There is now produced and shown to me marked "NFG2" a copy of themodel standard rules of the Labour Party in this respect. The Labour Group consists of 31 Councillors and and also has present at its meetings 10 representatives of the Labour Party. Theseindividual Labour Party members have no voting rights on the Labour Group, nor can they move any motions. They are allowed to speak and thereby contribute to the debate. The meetings of the Group are held to relate to Council meetings, one meeting takes place in the middle of every cycle of council meetings and one at the end of each cycle. The meeting allows a dialogue between the elected Councillors and representatives of the Labour Party to discuss issues facing the Council and allow the Labour Group on the Council to consider any representations made to it by members of the Labour Party before making up its mind about itsattitude in Council meetings. This practice is, to the best of my knowledgeand belief, common throughout the country and has been adopted by parties of different political complexions. On the 25th September 1986 I prepared a documentin which I set out what I perceived to be the key decisions relating to thepolicy review. I made a number of provisional estimates as to the rise whichthe rates might take on a number of different assumptions. A copy of myletter of 2nd September 1986 was attached to that paper. As can be seen from the minutes of the mid-term group meeting held on that day, it was agreed that it would be impossible and not politically desirable to fix a rate target at that stage given that the review was still being undertaken and the uncertain position on Rate Support Grant.
12. On 30th September 1986 I presented a report to the Waltham Forest LocalGovernment Committee on the same subject. This Committee consists ofdelegates from the three constituency Parties in the Borough i.e. Chingford,Walthamstow and Leyton. The Group leader and Group secretary on the Councila,re ex-officio members and individual Councillors can be put on this committeeas delegates by their constituency parties. The great majority of members of this committee are not councillors. As can be seen, I presented a paper which was similar to that already provided to the Group for discussion at that meeting. The minutes of that committee show, yet again, that the meeting discussed the strategy being adopted and expressed the view of the Labour Party in Waltham Forest about how the review should be developed, suggesting also that there should be a special conference in November on the subject. In addition itwas agreed that the LGC should be consulted over the question of priorities.
13, From the 13th October to the 20th November 1986 there was a cycle of council meetings dealing with the policy review.
14. On the 7th October 1986 there was a pre-council meeting of the Labour Group at which I gave a policy review update, as is shown in the minutes.
15. On 14th October 1986 there was an inquorate meeting of the local government committee executive committee which was concerned with organising the conference to be held In November and mentioned above.
16. On 14th November 1986 there was a meeting of the local GovernmentCommittee which dealt with conference arrangements for the 15th November meeting .I have also attached to these documents agenda papers for the LGC/Group conference showing the priorities as determined by Council Committees for 1987/8. The purpose was to discuss changes in priorities from committee to committee. As can be seen from the policy review recommendations from the LCG a number of suggestions were made to move items from one category to another. I should stress that these figures were all figures which were publicly available and that the changes are expressed as recommendations and not instructions from the LGC, as is claimed by the Applicants.
17. On Tuesday, 18th November, 1986 there was a pre-Council group meeting and I have attached the minutes thereto. (I should make it clear that a small number of other amendments not mentioned in the minutes were discussed but were not agreed).
18. On Thursday, 18th December, 1986 there was a mid-term group meeting. Ithad before it a paper from Councillor Dennis which made it clear that hebelieved that there was going to be a fairly substantial rate rise in Apriland asked us to consider arrangements for explaining It. It is clear from hispapers however that no final decision had been made on this question. He said [in terms] that he did not wish to pre-empt the decision as to the rateincrease.
19. On 6th January, 1987 there was a local government committee meeting atwhich I made a group report.
20. On 10th January, 1987 I produced a paper for a joint LGC/Group conference on that day to discuss a rate strategy for 1987/88. This paper for the first time put forward the figures and the various options on the basis of the work which had been done within the Council on the policy review and financial determinants known from the Rate Support Grant announcement. I would particularly like to draw attention to the comment Imade in the final two pages of the text which shows that no final decision hadbeen made, and in which I explored the possibilities of increases in thedomestic rate which could have been as much as 827o. I also draw attention tothe fact that merely to continue the level of services which we inherited whenwe took office would involve a rate increase of some 31% and that implementingcategory A priorities would involve an increase of almost 50%. As can be seenfrom the minutes, the LGC called on the Labour Group to implement thosedevelopments present in categories A, B and Cl, I now draw attention to theform of the minutes which contain no instructions but simply call upon thegroup to take certain action.
21. On 13th January, 1987 the recommendations of the conference wereconsidered by a Pre-Council Group meeting. After discussion a vote was takenand I draw attention to the minutes in which the conclusions are set out. Ishould like to make it clear that there was a vigourous debate on the issues&nd a number of Councillors voted against accepting the recommendations,wanting a lower rate rise than was suggested by the LGC conference. I againstress that only Councillors voted in this debate.
22. On 15th January, 1987 the Resources Committee of the Council met andagreed the budget.
23. On 27th January, 1987 the LGC executive committee met and noted that theGroup had accepted recommendations to implement developments in categories A,B and C1.
24. On 24th February, 1987 the Pre-Council Group agreed the rate figures contained in the Resources Committee Report. On the following day the 25thFebruary, 1987 the Resources Committee recommended the rate rises. On the10th March, 1987 the Council met to fix a rate, which it did after a lengthydiscussion
25. I would like to make a number of general observations arising from theabove matters. First, at all times the Waltham Forest majority Councillorsand the Waltham Forest Labour Party acted in accordance with normal politicalparty activity in a Borough. At no stage were instructions given by nonCouncillors or the Labour Party which majority Councillors felt irrevocablybound to accept. As can be seen from the documents and the minutes there wasa process of consultation, discussion and recommendation to the Councillorswho at all times exercised their independent judgement. Second, it is clearfrom the comparison of the Council Documents and the Labour Party Documentswhich I have exhibited hereto that at all times the Council Policy Reviewprovided the framework for discussion. It was the point of departure. It isalso clear from the figures (and accepted by the Respondents) that at the veryleast a 45% rate rise would have been fully justified. This would merely haveenabled the Council to give effect to the Category A services.
26. Finally I would like to put Councillor Slack's memorandum into context.Councillor Slack disagreed with the decision to raise the rates as much asthey were raised but decided to vote with the group. I only wish to point outthat the phrase in his memorandum which talks of instructions from the LGC isinaccurate and I believe that he accepts that this is so. I think this isquite clear from the structure of the documentation which I have produced.
27. The Reasonableness of the Rate Rise
The Majority Group was conscious of the need to strike a balance betweenthe interests 0^1 the ratepayers and those who are in receipt of the Council'sservices. As I have indicated, we had been elected on the basis of amanifesto in which we undertook that we would improve and develop the servicesprovided by the Council. If we had merely carried out the services envisaged
in the budget for 1986/87 we would have had to increase rates by over 30%.Moreover by the time the rate was finally set in March 1987 the Council hadalready entered into certain commitments (the category 'A' commitments) suchas the provision of supply teachers. After taking these matters intoconsideration the increase in rates to match the expenditure would have had tobe about 45%. However, this still left significant areas where the MajorityGroup felt that services were in need of significant improvement, notably inthe areas of Social Services and Housing. Accordingly it was felt thatcertain improvements had to be effected beyond those in category 'A' inrespect of which commitments had already been made. The choice of priorityareas was made after extensive discussion and consultation, as the affidavitof the Director of Finance indicates. Of course, the Majority Grouprecognised that not all the improvements which it sought could be implementedat once. Furthermore it was conscious of the need to bear in mind, interalia, the legitimate concerns of the ratepayers, including the comments madeby the commercial ratepayers during the course of consultations with them, andH the adverse effect which increased expenditure would have on the rate supportgrant. All these matters were taken into account when the rate was fixed.
28. I now turn to consider the effect of the legal advice which was given byLeading Counsel prior to the rate finally being fixed.
29. On. the 12th January 1987 I was informed by the Chief Executive that theofficers were obtaining legal advice. A copy of the letter is now producedand shown to me marked "NFG3". As will be seen from that letter, the ChiefExecutive was particularly concerned about the fact that at this stage theMajority Group was proposing not to increase housing rents. On the 13thJanuary I informed the pre-Council Group meeting that legal advice was beingsought and it was made clear that any final decision on the question of rentswould have to await this advice. On the 14th January I drafted a Motion forthe Resources Committee Meeting that day in which I recommended that legaladvice should be sought. During that afternoon I was informed by the Chief Executive that legal advice had been obtained and I was sent a copy of theadvice
30. Prior to the meeting of the Resources Committee on that day there was ameeting of the Labour members of that Committee. I summarised the legaladvice to the members. Obviously we were anxious to heed the advice. However, I was aware that it was given on the basis of the material contained in the officers report and since then the Group had accepted that there should be a 3% saving in the expenditure budget, and furthermore the provisionallocated for decentralisation had been halved. Moreover, it was clear thatany rent increase would reduce rates accordingly. I felt that we should askfor Counsels advice on the whole package: the original advice had merelyanswered specific questions posed by the officers. (The original instructions are now produced and shown to me marked "NFG4").
31. On the 22nd January I, together with the Deputy Leader, the ChiefExecutive, the Borough Solicitor and the Director of Finance attended a consultation at the Chambers of leading Counsel referred to in paragraph 7(11) of the affidavit of the Director of Finance. At this consultation I explained that it was merely intended to operate a rent freeze pending a full review of rents, our Council advised that since it wasenvisaged that the review would take some eighteen months, this would not bejustified. We also discussed the rate increase. Counsel advised us that he was unaware of any case in which the level of rates had been challenged merely on the ground that they were overall too high; the challenge was normally on the ground that specific items of proposed expenditure were unlawful. My impression on leaving the consultation was that provided the Majority Group properly weighed up all relevant factors and took into account the fiduciary duty owed to ratepayers, a challenge to the level of the rates per se would bevery difficult to sustain. The courts would be reticent to interfere with adecision of Councillors which was reasonably and properly taken. The MajorityGroup did at all times act responsibly: they felt that there was a very strong case indeed for effecting the improvements in the services as reflected in categories A, B and C1. I believe the notes of that conference prepared by the Borough Solicitor and the Director of Finance ("MWCC7") and in more summary form paragraph 44 of the officers report to the Resources Strategy Committee of the 25th February 1987, properly reflect what was said in that consultation.
32. I reported the essence of the advice to the Local Government Committee Executive Committee Meeting on the 27th January 1987. The advice was also, ofcourse, referred to in the officers report which was sent to the members of the Resources Committee for their deliberations at their meeting on the 25th February (Exhibit MJB13).
33. I now refer to paragraph 22 of the Affidavit of John Gordon Hughes swornin these proceedings. He there refers to a meeting of the Annual GeneralMeeting of the Council which took place on 7th May 1987. Mr. Hughes statesthat he attended that meeting as part of a delegation and was present when Iwas asked whether I considered a rate rise of 62% reasonable. Mr. Hughes contends that I replied that in my view a rate rise of 62% was unreasonable.
34. These statements are misleading. There is now produced and shown to memarked "NFG4" a copy of a note taken of the meeting with the Ratepayers Groupon 7th May 1987 and made by the Director of Finance, Mr. Chambers. At the topof page 4 of the said notes are the comments which are the subject of Mr,Hughes's comments to which I have referred above, I confirm that these notesrepresent a correct version of the conversation which took place. Mr. Crownindeed asked me whether 1 considered the increase reasonable and I repliedthat the ratepayers were "getting developments, but not to the value of 62%because of the Government's Grant System", but nearer to 10X. 1 certainlyaccepted that stated as a bald figure, "a percentage of 62X did seemunreasonable, but that if we wanted necessary developments we must increasethe rates". This Statement by me is in line with similar statements I havemade when asked a similar question on various occasions. I have tried to explain that what may at first sight seem an unreasonable figure, simplystated as a percentage increase, is both reasonable and necessary when judgedwithin the light of both Government policy and the needs of the communitywhich the Council is pledged to serve. I have never said, nor do I believe,that the rate rise concerned was unreasonable or in any sense failed to strikea proper balance between the interests of the ratepayers and the recipients ofthe Council's services.
It is alleged that the Council failed properly to consult representativesof commercial and industrial ratepayers as required by Section 13 of the RatesAct 1984. I strongly deny this. I refer to Paragraph 8 of the affidavit ofthe Director of Finance where he sets out in detail the manner in which theCouncil carried out its duty under Section 13. 1 further point out that atthe meeting on the 11th December several Councillors from the Majority Groupattended. At all times we were fully aware of the fact that certainbusiness ratepayers were strongly of the view that significant increases inrates would adversely affect their businesses. Ultimately, however, we had tostrike a fair balance between the interests of the ratepayers and therecipients of the Council's services. That is what we sought to do in fixingthe rate. Inevitably, groups of individuals will take a different view fromthe Council as to where the balance should be struck. But I was aware of, andtook into account, the views expressed through the consultation process when I exercised my role as regards the rate, and I believe that my fellow Councillors in the Majority Group did the same.
36. The Resolution not to call a meeting to make a substitute rate
The decision to fix the rate had been taken after considerablediscussion, extensive consultation and a great deal of work by officers.There was no new factor which had emerged between the 10th March, 1987 whenthe rate was fixed and the 9th April, 1987 when the decision was taken not tocall a special meeting to fix a substitute rate, to justify any reconsideration of the original decision. In any event even by the 9th April steps had been taken to give effect to the decision of the 10th March and it would have been costly and administratively extremely expensive to have altered the decision. I refer to paragraph 10 of the affidavit of theDirector of Finance where some of the difficulties flowing from the fixing ofa new rate are discussed.
37. The Deferred Purchase and Parallel Loan Scheme
The background to the adoption of this scheme is fully set out in theaffidavit of the Director of Finance at Paragraph 9. At the time when theCouncil agreed to adopt the scheme in July 1986, there was great pressure onthe capital programme. In particular, the need for immediate capitalexpenditure in relation to housing was urged. In addition one project, a poolin Leyton (approved by the previous Council) was proving difficult to fund outof normal capital resources without using up almost all of that part of thecapital programme. It seemed sensible to adopt a stance which would, ifnecessary, enable the expenditure to be spread out over a number of yearsthereby releasing capital for urgent immediate needs. The scheme was adoptedalong with the measures designed to improve the position as regards CapitalExpenditure. As the Director of Finance's affidavit makes clear, the Councilwas advised that whilst there were doubts about the legality of the scheme andparticularly the parallel loan aspect of it, on balance it was thought to belawful. It appeared to be a proper scheme for the Council to adopt. In fact,no funds have as yet been drawn down on the deferred purchase facility.
38. Miscellaneous Matters
I would like to make the following comments on the affidavit of MartinJohn Baxter sworn in these proceedings:-
Paragraph 6: I and my colleagues were aware of the petition having beenpresented. It demonstrated feeling about the issue which we were in any eventaware existed, but it did not alter the case for making the proposed rate.
Paragraph 22: It is certainly correct that a rate rise of 40% would have onlyguaranteed the existing services. But I cannot accept that it wasunreasonable to implement a development of services.
Paragraph 26: It is certainly not true that the majority of Councillors had by20th November, 1986 determined to implement the increased expenditure proposals included in categories A, B and at least part of the proposals in categories Cl and C2. That decision did not emerge until January as I have explained.
39. I now refer to the affidavit of John Gordon Hughes
Paragraph 10: I deny the allegation that Councillors regard themselves as bound to expenditure commitments before the meeting resulting from the policy review.
Paragraph 16; I deny that there were any instructions from the LGC and I believe that Councillor Slack has accepted this. I specifically deny that the majority Councillors abandoned the exercise of discretion invested in them by Parliament and were content to accept instructions as delegates of the LGC.
40. I now refer to the affidavit of Bertram Edgar Ross Hamilton
Paragraph 10: Again, for reasons I have already explained the meeting on 11thDecember, 1986 took place at a time when we had not yet determined either the Increased level of the services we were going to provide, or precisely whatthose services should be, and it is certainly not true that we were at thatstage merely awaiting final notification of the level of rate support grantbefore determining the rate level.
41. I now refer to the affidavit of Roger Charles Innes
Paragraph 7: I was not present at this meeting and therefore cannot depose asto what Councillor Jacobs said. But the suggestion that we had ever intended"to go the way of the Labour Party in Liverpool" is simply nonsense. At nostage in the discussions was there any question of the Council adoptingdeficit budgeting. The suggestion is ludicrous.
SWORN by NEIL FRANCES GERRARD )at this day of July, 1987 Before me, A Solicitor
|Judgement in 62 per cent rate rise case|
Const. The Master of the RollsStocker L.J.Russell L.J.|
Regina v. London Borough of Waltham Forest Ex parte Baxter and Others (Waltham Forest Ratepayers Action Group)
SIR JOHN DONALDSON M.R.
On 10th March 1987 the Waltham Forest Councilresolved to levy a rate for the year 1987-8 in the sum of£302.5 pence in the £ for domestic hereditaments and 321pence for non-domestic. In the case of the domestic ratethis represented a 62% increase upon that levy for 1986-7and a 56.6% increase in the case of the non-domestic rate.
Not unnaturally many ratepayers objected to so steepan increase in their rates and the applicants soughtjudicial review of the resolution fixing those rates. Inits judgement dismissing the application, the Queen's BenchDivisional Court (Glidewell L.J. and Schiemann J.) notedthat Mr James Goudie Q.C., then appearing for the Council,did not argue that the application should be dismissedupon the grounds that an alternative remedy was availablefor the applicants in the shape of an appeal to the Crown Court under Section 7 of the General Rate Act, 1967 andheld that it would not therefore be right to refuse reliefupon this ground. No doubt because this was not thoughtby counsel to be a live issue, they did not refer theCourt to Section 4 of the Local Government Finance Act,1982, which restricts the scope of Section 7 to quashing arate in relation to a particular hereditament and providesthat the claim to have the whole rating resolution quashedshall be made by judicial review. No alternative remedytherefore existed.
The applicants were faced with the initialdifficulty that, not knowing what had moved the majorityof the Council to pass the rate making resolution, theycould really only allege that their conduct was"Wednesbury unreasonable". However the Council rightlyresponded with additional information, as a result ofwhich four principal issues emerged, namely whether:-
(a) the Councillors fettered their discretion byregarding themselves as bound by the terms of theirelection manifesto to undertake expenditure whichrendered such a rate inevitable.
(b) six or seven Councillors voted for the resolution,notwithstanding that in their view the proposed rates were unreasonably high. Had they abstained orvoted against the resolution, it would not have beenpassed since the voting was 31 for the resolutionand 26 against*
(c) the passing of the resolution was "irrational^ or"Wednesbury unreasonable".
(d) there was no genuine or adequate consultation withrepresentatives of commerce and industry.
In a long and careful judgement delivered byGlidewell L.J., all these complaints were examined andrejected. In the context of the allegation that 6 or 7Councillors voted for the resolution contrary to theirpersonal views, affidavit evidence was filed by four ofthem, namely Councillors Slack, Mrs Smith, Miles andBrind, and the latter three were cross-examined on theiraffidavits. In addition affidavits were filed byCouncillor Gerrard, the leader of the majority group, who,I need hardly say, was not one of the Councillors said tohave supported the resolution contrary to his personalinclinations. The findings of the Divisional Court areaccepted by the applicants, save in relation to issue (b)above and it is to that issue that I now turn.
The right and duty to make a rate is confined to therating authority which/ in the case of boroughs, is theborough council (General Rating Act, 1967, Section !). BySection 99 and paragraph 31(1) of Schedule 12 of the LocalGovernment Act, 1972, "all questions coming or arisingbefore a local authority shall be decided by a majority ofthe members present and voting".
Taking these statutory provisions together, Mr JamesWadsworth Q.C., appearing for the applicants, submits,rightly, that no-one other than 6 member of the ratingauthority can determine whether or not to make aparticular rate and that each member present at themeeting which considers the resolution to make a rate hasa -personal and individual duty to consider the issuesinvolved and to reach his own decision whether to vote foror against the resolution or to abstain*
Before the Divisional Court it was contended thatsome of the Councillors voted for the resolution oninstructions from a body known as the Local GovernmentGroup, which is composed of representatives of the LabourParty of the three parliamentary constituencies which makeup the London Borough of Waltham Forest. Some of thoserepresentatives may, coincidentally, be councillors, butthat is irrelevant for present purposes. Had this allegation been made good, and it is not now maintained,the Councillors concerned would quite plainly have been inbreach of their statutory duty and the resolution wouldhave been invalid, since it could not have been said to bethe decision of the rating authority.
The allegation maintained in this appeal is avariant of this complaint. As is common practice, themembers of the Waltham Forest Council who were members ofthe Labour Party and formed the majority group heldprivate meetings at regular intervals at which theydiscussed forthcoming council business and determined whatthe policies of the group should be* Such a meeting tookplace in advance of the rate making meeting of the Councilon 10th March. The extent (if any) to which the new rateshould be higher than that which had been levied inrespect of the year 1986-7 was the subject of considerablediscussion in which differing views were expressed* Inthe end the group resolved to support the resolution whichwas put to and passed by the Council. This decision bythe majority group was not, however, unanimous.Councillors Slack, Mrs Smith, Miles and Brind and two orthree other Councillors voted against it, yet all votedfor the resolution in Council.
No-one could complain if the Councillors had re-examined the issues and changed their minds between thegroup meeting and the meeting of the Council. MrWadsworth, however, submits that there was no change ofmind. The reason why the Councillors voted for theresolution was that they were subject to party disciplineand to the political "whip" system. The Councillors votedas they did, not because they considered that theresolution should be passed, but because, in the light ofthe majority group's private vote, their discretion hadbeen fettered and they had no option but to vote as theydid.
Bearing in mind that it must always be open to amember of the Council to change his mind at any timebefore the actual vote in Council, the fact that heexpressed a different view at an earlier time does not, ofitself, give rise to any inference that his discretion wasfettered or that he voted contrary to his genuinely heldviews. It follows that this allegation cannot be made out other than in relation to the Councillors whom I havenamed, because it is only in their cases that we have anyevidence. However, before turning to that evidence, Ishould explain the whip system as it was applied by themajority group of the Waltham Forest Council.
This was explained by Councillor Gerrard in hisevidence and is not challenged. The majority group hadadopted the nationally approved "Standing Orders forLabour Groups on local authorities". Under these standingorders members were required to refrain from speaking orvoting in opposition to the decisions of the Labour Groupunless it had been decided to leave the matter to a freevote* In practice on this Council many committeedecisions and some Council decisions were left to a freevote, but it was not to be expected that so important amatter as the rate resolution would be so treated.Provision was made for members to abstain from voting inaccordance with group policy where matters of consciencearose (Standing Order 7(c)), but this conscience clauseappears 'to have been directed primarily at issuesinvolving religion or temperance.
The standing orders also made a distinction betweenthe general run of council business and cases in which theCouncil or its committees or sub-committees were acting ina "quasi judicial capacity (e.g. licensing of theatres andcinemas etc)" when "each member shall form his or her ownjudgement according to the evidence". This led MrWadsworth to argue that the rules did not permit a memberto form his or her own judgement in relation to othermatters, even one of such fundamental importance as therate resolution. I do not so read the rules* It is wellsettled that councillors can have general policies inrelation to any matter, including the licensing oftheatres and cinemas, and the distinction which is I thinkbeing made is between a situation in which the Council hasto determine a factual matrix to which a policy may wellbe applied from one in which no determination ofparticular facts is necessary. It is not possible to havea policy as to the existence of facts and they have to bedetermined by each member on the evidence.
I do not find these rules in any way objectionable.
As Glidewell L.J, pointed out, if we were to quashthe Council's decision upon the grounds that the majoritygroup operated a whipping system based upon these standingorders and the existence of private policy makingmeetings, we should be casting doubt upon the legality ofthe procedures adopted by political groups of localcouncillors throughout the country. We should also, byimplication, be criticising the system operating inParliament itself. In an appropriate case I should haveno hesitation in doing so, but not only do I see nopossible reason for adopting such a course, but myconclusion is reinforced by additional evidence which weadmitted during the hearing of the appeal and whichincluded part of the Widdicombe Report on localgovernment. That report considered this system andconcluded that it was not a matter for concern, providedthat the formulation of decisions in party groups outsidethe formal local government system was not allowed toundermine the statutory safeguards (paragraph 6.62).
Mr Wadsworth submitted that in the light of therequirement for rates to be fixed by the Council, theprivate determination of a group policy in this contextdid undermine statutory safeguards. I do not agree. Solong as councillors are free to remain members despite thewithdrawal of the whip and so long as they remember thatwhatever degree of importance they may attach to groupunity and conformity with group policy, the ultimatedecision is for them and them alone as individuals, Icannot see that there is any undermining of statutorysafeguards.
So how stands the evidence in relation to theindividual Councillors?
In the group meeting he was the principal opponentof the policy eventually adopted by the majority group andcampaigned forcefully for his point of view. In hisaffidavit, upon which he was not cross-examined, he said:-
"Despite my opposition to the extent of therate increase, I felt that I ought not tocarry my disagreement with the group decisioninto the Council Chamber and that I shouldvote for the rate increase proposed. This Idid. I felt that I ought to defer to thewishes of the majority and support the rise.If I had decided to vote against the group policy in Council, I would personally havefelt obliged to resign from the Labour Groupand thereby deprive myself of the opportunityto continue to try and influence mycolleagues.
I would like to stress that my opposition tothe rate increase was not based on any beliefthat the rate proposed was unlawful. If thathad been the case, I would not have voted forit in any circumstances".
Subsequently he decided that he had made a mistake. Hethen resigned from the majority group and voted for aresolution calling for a reconsideration of the rate.
There are no grounds from impugning CouncillorSlack's vote or his conduct. It was a wholly tenable viewthat he would serve the citizens of Waltham Forest betterby voting in accordance with the wishes of the majority ofthe Labour Group and continuing to oppose their policy onexpenditure from within. The decision was clearly adifficult one from his point of view, as is shown by hissubsequent conduct, but it was his personal decisionhonestly arrived at.
Councillor Mrs Smith.
She had been a member of the Labour Party for 52years and set great store by party unity. Whilst in thisinstance she disagreed with the policy as determined bythe group, she took the view that she should accept that policy, it having been determined by democratic decision.However nothing in her evidence suggests that she did notconsider herself free to vote against the resolution. Itwas simply the case that in her view it would have beenwrong to do so in this instance and, it may be, in anysituation which she could foresee* Given that aconsideration of her colleagues9 views was without doubt alegitimate factor in reaching her decision, the onlycomplaint is the very great weight which she gave to thoseviews . This was a matter for her and cannot be used as abasis for impugning her vote,
His attitude was substantially the same as that ofCouncillor Mrs Smith. He thought' that he would be wrongto join the Labour Group, knowing of its standing orders,and then simply ignore them and vote against party policy.His view, right or wrong, was that if he or his opponentswere to act otherwise, it would detract from effective andstrong local government and that a chaotic situation wouldresult. This may not be a universally held view, but itis certainly tenable. What matters is that he exercised afree choice whether to support party policy or to vote ashe would have voted if there had been no such policy.
Councillor Brind.This is the one Councillor whose attitude gave mesome anxiety. In his affidavit he said:-"I did not want to carry my disagreement withthe group decision into the Council Chamber.I was not deterred from voting as I believedright by ,the whip system. Of course I wasaware of the existence of the whip, but whatled me to vote as I did was my view that theright course was to support the proposal whichI knew commended itself to the majority of mycolleagues in the Labour Group".Thus far no problem. However in cross-examination hesaid:"One either votes with the majority or oneresigns from the Council" and "I regard myvote as being committed to the Labour Group solong as I wish to remain a Councillor".These latter answers might suggest that Councillor Brindregarded himself as a mere voting delegate of the majoritygroup as a whole and, if that were the case, he would befoiling in his duty and his vote might well have beenimpugned . Whether that would have led the Court to quashthe resolution or whether, in the exercise of itsdiscretion, and bearing in mind that his vote was notdecisive, we would have refused to do so, I need not stopto inquire because his evidence has to be looked at as a whole and, so looked at, I do not think that this was hisattitude.
What Councillor Brind was saying that he was a newmember who ought therefore to have particular regard tothe views of other more experienced members of the group,that party unity was of great importance in the run up toa general election, that in general his party's policieswere very much in the public interest, even if in thisparticular respect he thought they were mistaken and that,in all the circumstances, whilst recognising that he had achoice, he thought that he ought to support theresolution. Had he exercised that choice differently, hewould have felt obliged in honour to resign from theCouncil, since he would not have been acting as those whoelected him must have expected him to act.
Again, whilst views may differ on whether hisdecision was the right one, it was his decision and no-oneelse's and I can see no basis upon which his vote can beimpugned.
My view, based upon the affidavits and thetranscript of the oral evidence, coincides with that ofthe Divisional Court. However, if I had inclined to a different view, I should have hesitated long before doingso. I say this because there is no difference of viewbetween the Divisional Court and this Court on what is theduty of an individual councillor.
I would dismiss the appeal.
Court of Appeal
The Master of the Rolls
Lord Justice Stocker
Lord Justice Russell
Regina v London Borough of Waltham Forest Ex parte Baxter and Others(Waltham Forest Ratepayers Action Group.)
LORD JUSTICE STOCKER; I agree.
The ground of appeal argued before this court is that raised by issue
Without further refinement or modification such aformulation of a Councillor's duty in discharge of thefiduciary relationship between himself and the ratepayers ofthe Borough is in my view expressed in terms so wide as toprevent the modern system of local government from being carried out at all. It places too simplistic aninterpretation upon the words "in accordance with their ownviews"- If it is, in truth, the duty of every Councillor tovote only in accordance with his own intellectual appraisal ofand upon a given issue, then party organisation can have nopart to play in local government. Some might think such asituation to conform more closely to democratic principlesthan the existing party system, but it would no doubt createmany practical difficulties in the organisation of localgovernment. Moreover, this formulation of a Councillor's
duty, on an issue where fiduciary duty to the ratepayersarises, would render a resolution invalid if supported by aCouncillor who has subordinated his own view to those of the
majority of his fellow Councillors in the Council Chamber, inorder to achieve unanimity.
I agree, and the contrary has not been argued on behalfof the the respondents, that it would be a breach of aCouncillor's fiduciary duty to the ratepayers, and accordinglyrender a resolution liable to be quashed by the court, were heto fetter his own discretion as to how to cast his vote by anypre-determined acceptance, to the exclusion of all otherconsiderations, of a decision made by a political party, orcaucus of that party as, for example, to vote against his ownassessment of the merits solely because such a vote wasrequired in order to conform with views expressed in a partymanifesto issued prior to his election as a Councillor (seeBromley London Borough Council y Greater London Council[ 1983] , 1 AC*, 768 ), or if he regarded himself as mandated bythe fact of his election to vote in 'accordance with a pre"determined political policy or as a mere delegate for thoseelectors by whose votes he was elected. Such situations didnot arise in the case of any of the Councillors whose viewsand conduct were cited to the court from their affidavits orcross examination, as my Lord has, in his analysis of theirevidence, pointed out.
arguments providing he considers all the available options andconsiders that the maintenance of such unanimity is of greatervalue to the ratepayers than insistence upon his own view*This is not invalidated by the fact that certain sanctions,which could be imposed upon a failure to accept the partywhip, might follow as a consequence, I therefore agree withthe decision of the Divisional Court on this aspect of the
matters considered by it and with the judgement and reasoningof my Lord. I agree that the evidence of these Councillorswho opposed the resolution at the party caucus meeting but,
nevertheless, voted in its favour in the council chamber,supports the conclusion that they had not, in any way,fettered their freedom to vote as they saw fit. I agree withthe analysis and conclusions of my Lord in each of the individual cases considered by him,
I agree that this Appeal should be dismissed for thereasons given by my Lord, the Master of the Rolls.
Const: The Master of the Rolls|
Regina v London Borough of Waltham Forest Ex parte Baxter and Others (Waltham Forest Ratepayers Action Group)
In my judgement the result of this appeal depends entirely uponthe assessment of the evidence of the four Councillors, namely,Mrs. Smith, Mr. Slack, Mr. Miles, and Mr. Brind, whose testimonywas before the Divisional Court either on affidavit,or bothon affidavit and from the witness box.
Mr. Wadsworth did not seek to argue that a Councillor was notat liberty to vote although his or her vote did not accord withhis or her purely personal inclinations. Party loyalty, partyunanimity, party policy, were all relevant considerations forthe individual Councillor. The vote becomes unlawful only whenthe Councillor allows these considerations or any other outsideinfluences so to dominate as to exclude other considerationswhich are required for a balanced judgement. If, by blindlytoeing the Party line, the Councillor deprives himself of anyreal choice or the exercise of any real discretion,then his votecan be impugned and any resolution supported by his votepotentially flawed.
For the reasons given by My Lord the Master of the Rolls in his judgement which I have had the benefit of reading in draft, I can see nothing in the evidence of the Councillors when properly analysed to suggest that any deprived himself or herself of a proper discretion or that the discretion was exercised in a way which would justify any consequential interference by the Court with the rate-making process that took place on 10th March 1987 I too would dismiss this appeal.