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LAW REPORT Party whip is lawful

Regina v Waltham Forest London Borough Council. Ex parte Baxter and others.

Before the Master of the Rolls (Sir John Donaldson), Lord Justice Stocker, and Lord Justice Russell.

September 24,1987

The Court is not entitled to quash a local authority's resolution merely because councillors who have previously indicated their opposition to the resolution have subsequently changed their minds and voted with their political party. A councillor's vote becomes unlawful only if he allows party loyalty, party unanimity, party policy, or other outside influences so to dominate as to exclude other considerations which were required for a balanced judgment.

His vote can be impugned only if, by blindly toeing the party line, the councillor deprives himself of any real choice or the exercise of any real discretion. The distinction between giving great weight to the views of colleagues and to party policy on the one hand, and voting blindly in support of party policy might be a fine one. But it is a very real one and it has to be decided on the evidence upon which side of the line a particular councillor's conduct falls.

The facts

On March 10, 1987, Waltham Forest Borough Council, acting in its capacity as rating authority, resolved to levy a rate of 302.5 pence in the pound for domestic hereditaments and 321 pence for non-domestic. That represented increases of 62 per cent and 56.6 per cent respectively.

The applicants were members of the Waltham Forest Ratepayers' Action Group applying for judicial review of the resolution. The appeal was based on the ground that six or seven councillors had voted for the resolution even though in their view the proposed rates were unreasonably high.

The voting was 31 for and 26 against the resolution so that if they had abstained or voted against the resolution, it would not have been passed.

As was common practice, the Labour Party members of the council (who formed the majority group) held regular private meetings at which they discussed forthcoming council business and determined the policies of the group, A meeting was held before the rate making council meeting, and the rate increase was the subject of considerable discussion at which differing views were expressed.

In the end the majority group resolved to support the council's resolution, but that decision was not unanimous. Councillors Slack, Mrs Smith, Miles, and Brind, and two or three others voted against it, yet all voted for the resolution in council.

It was argued that the reason why the councillors voted for the resolution was that they were subject to party discipline and to the political whip system, that in the light of the majority group's private vote their discretion had been fettered and they had no option but to vote as they did.

The decision The Court of Appeal did not consider that argument to be made out on the facts.

The Master of the Rolls said that it must always be open to a councillor to change his mind at any time before the actual vote in council. Bearing that in mind, the fact that he expressed a different view at an earlier time did not, of itself, give rise to any inference that his discretion was fettered or that he had voted contrary to his genuinely held belief.

The majority group had adopted the nationally approved Standing Orders For Labour Groups In Local Authorities which required members to refrain from seeking or voting in opposition to the decisions of the group unless it had been decided to leave the matter to a free vote.

In practice many committee and some council decisions were left to a free vote, but it was not to be expected that a matter as important as the rate resolution would be treated in I that way. Order 7(c) provided for members to abstain from voting in accordance with group policy where matters of conscience arose, but that was directed primarily at issues involving religion or temperance.

The Master of the Rolls did not find those rules in any way objectionable. What would be objectionable would be a provision that a member had to resign his membership of the council if, in the absence of a conscience situation, he intended to vote contrary to group policy. That would fetter his discretion and make him a mere delegate of the majority -s group.

That was not the position. Standing orders made provision for the withdrawal of the policy whip if a member acted in breach of the orders, but there was nothing to prevent his continuing as an independent council member and to vote as he saw fit. In practice, failure to "toe the party line" led in the first instance only to a reprimand, next to removal from chairmanships, and only as a last resort to withdrawal of the whip.

If the court were to quash the council's decision on the grounds that the majority group operated a whipping system based upon the standing orders and the existence of private policy making meetings, it would be casting doubt upon the legality of procedures adopted by political groups of local councillors throughout the country. It would also, by implication, be criticising the system operated in Parliament itself.

It was argued that in the light of the requirement for the rates to be fixed by the council the private determination of a group policy undermined statutory safeguards. His Lordship disagreed. There was no undermining of statutory safeguards so long as councillors were free to remain members despite the withdrawal of the whip, and so long as they remembered that whatever degree of importance they might attach to group unity and conformity with group policy, the ultimate decision was for them and them alone as individuals. There was no evidence to show that the councillors had not exercised free personal choices honestly arrived at.

Lord Justice Stocker and Lord Justice Russell delivered concurring judgments.

Accordingly the court dismissed the ratepayers' appeal from the refusal by the Divisional Court (Lord Justice Glidewell and Mr Justice Schiemann) to quash the resolution.

APPEARANCES: Mr James Wadsworth QC and Mr Anthony de Freitas instructed by Richards Butler for the ratepayers: Mr Eldred Tabachnik QC and Mr Patrick Elias instructed by the Borough Solicitor, Waltham Forest Borough Council, for the local authority.

Report by Shiranika Herbert

Guardian October 5, 1987.
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