R v Waltham Forest London Borough Council, ex parte Baxter
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STOCKER,LORD JUSTICE RUSSELL |
| Judgment Date | 24 September 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0924-3 |
| Docket Number | 87/0922 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 September 1987 |
[1987] EWCA Civ J0924-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE MACPHERSON
Royal Courts of Justice
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Stocker
Lord Justice Russell
87/0922
MR J.P. WADSWORTH Q.C. and MR A.P.S. De FREITAS, instructed by Messrs Richards Butler, appeared for the Appellants (Applicants).
MR ELDRED TABACHNIK Q.C. and MR PATRICK ELIAS, instructed by P.J. North Esq., appeared for the Respondents (Respondents).
On 10th March 1987 the Waltham Forest Council resolved to levy a rate for the year 1987–8 in the sum of £302.5 pence in the pound for domestic hereditaments and 321 pence for non-domestic. In the case of the domestic rate this represented a 62% increase upon that levy for 1986–7 and a 56.6% increase in the case of the non-domestic rate.
Not unnaturally many ratepayers objected to so steep an increase in their rates and the applicants sought judicial review of the resolution fixing those rates. In its judgment dismissing the application, the Queen's Bench Divisional Court (Glidewell L.J, and Schiemann J.) noted that Mr James Goudie Q.C., then appearing for the Council, did not argue that the application should be dismissed upon the grounds that an alternative remedy was available for the applicants in the shape of an appeal to the Crown Court under section 7 of the General Rate Act 1967 and held that it would not therefore be right to refuse relief upon this ground. No doubt because this was not thought by counsel to be a live issue, they did not refer the court to section 4 of the Local Government Finance Act 1982, which restricts the scope of section 7 to quashing a rate in relation to a particular hereditament and provides that the claim to have the whole rating resolution quashed shall be made by judicial review. No alternative remedy therefore existed.
The applicants were faced with the initial difficulty that, not knowing what had moved the majority of the Council to pass the rate making resolution, they could really only allege that their conduct was " Wednesbury unreasonable". However the Council rightly responded with additional information, as a result of which four principal issues emerged, namely, whether:
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(a) the Councillors fettered their discretion by regarding themselves as bound by the terms of their election manifesto to undertake expenditure which rendered such a rate inevitable.
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(b) six or seven Councillors voted for the resolution, notwithstanding that in their view the proposed rates were unreasonably high. Had they abstained or voted against the resolution, it would not have been passed, since the voting was 31 for the resolution and 26 against.
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(c) the passing of the resolution was "irrational" or " Wednesbury unreasonable".
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(d) there was no genuine or adequate consultation with representatives of commerce and industry.
In a long and careful judgment delivered by Glidewell L.J. all these complaints were examined and rejected. In the context of the allegation that six or seven Councillors voted for the resolution contrary to their personal views, affidavit evidence was filed by four of them, namely Councillors Slack, Mrs Smith, Miles and Brind, and the latter three were cross-examined on their affidavits. In addition, affidavits were filed by Councillor Gerrard, the leader of the majority group, who, I need hardly say, was not one of the Councillors said to have supported the resolution contrary to his personal inclinations. The findings of the Divisional Court are accepted 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 the rating authority which, in the case of boroughs, is the borough council (General Rate Act 1967, section 1). By section 99 and paragraph 39(1) of Schedule 12 of the Local Government Act 1972 "all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting".
Taking these statutory provisions together, Mr James Wadsworth Q.C., appearing for the applicants, submits, rightly, that no-one other than a member of the rating authority can determine whether or not to make a particular rate and that each member present at the meeting which considers the resolution to make a rate has a personal and individual duty to consider the issues involved and to reach his own decision whether to vote for or against the resolution or to abstain.
Before the Divisional Court it was contended that some of the Councillors voted for the resolution on instructions from a body known as the Local Government Group, which is composed of representatives of the Labour Party of the three parliamentary constituencies which make up the London Borough of Waltham Forest. Some of those representatives may, coincidentally, be councillors, but that 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 in breach of their statutory duty and the resolution would have been invalid, since it could not have been said to be the decision of the rating authority.
The allegation maintained in this appeal is a variant of this complaint. As is common practice, the members of the Waltham Forest Council, who were members of the Labour Party and formed the majority group, held private meetings at regular intervals at which they discussed forthcoming council business and determined what the policies of the group should be. Such a meeting took place in advance of the rate making meeting of the Council on 10th March. The extent (if any) to which the new rate should be higher than that which had been levied in respect of the year 1986–7 was the subject of considerable discussion in which differing views were expressed. In the end the group resolved to support the resolution which was put to, and passed by, the Council. This decision by the majority group was not, however, unanimous. Councillors Slack, Mrs Smith, Miles and Brind and two or three other Councillors voted against it, yet all voted for the resolution in Council.
No-one could complain if the Councillors had re-examined the issues and changed their minds between the group meeting and the meeting of the Council. Mr Wadsworth, however, submits that there was no change of mind. The reason why the Councillors voted for the resolution was that they were subject to party discipline and to the political "whip" system. The Councillors voted as they did, not because they considered that the resolution should be passed, but because, 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. For my part I would accept that, if this could be made out on the facts, I should have no hesitation in holding that the Councillors had been in breach of their duty to make up their own minds on the issue of what was an appropriate rate and would have been minded to quash the resolution. However I do not consider that it is made out on the facts.
Bearing in mind that it must always be open to a member of the Council to change his mind at any time before the actual vote in Council, the fact that he expressed a different view at an earlier time does not, of itself, give rise to any inference that his discretion was fettered or that he voted contrary to his genuinely held views. It follows that this allegation cannot be made out other than in relation to the Councillors whom I have named, because it is only in their cases that we have any evidence. However, before turning to that evidence, I should explain the whip system as it was applied by the majority group of the Waltham Forest Council.
This was explained by Councillor Gerrard in his evidence and is not challenged. The majority group had adopted the nationally approved "Standing Orders for Labour Groups on local authorities". Under these standing orders members were required to refrain from speaking or voting in opposition to the decisions of the Labour Group unless it had been decided to leave the matter to a free vote. In practice on this Council many committee decisions and some Council decisions were left to a free vote, but it was not to be expected that so important a matter as the rate resolution would be so treated. Provision was made for members to abstain from voting in accordance with group policy where matters of conscience arose (Standing Order 7(c)), but this conscience clause appears to have been directed primarily at issues involving religion or temperance.
The standing orders also made a distinction between the general run of council business and cases in which the Council or its committees or sub-committees were acting in a "quasi judicial capacity (e.g. licensing of theatres and cinemas etc)" when "each member shall form his or her own judgment according to the evidence". This led Mr Wadsworth to argue that the rules did not permit a member to form...
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