John Martin considers a case where lobbying by an MP was alleged to have rendered the rejection of a wind farm unfair
Key points
- Lobbying by an MP is part of the representative role
- A fair-minded and informed observer would be aware of this
“What are the boundaries to ministers being lobbied by an MP about a matter affecting her constituency, if their subsequent decision is not to be tainted by unlawfulness?”
That was the question posed by Cranston J at the start of his judgment in Broadview Energy Ltd v Secretary of State for Communities and Local Government and others [2015] EWHC 1743 (Admin); [2015] PLSCS 189, a case where an MP was involved in a successful campaign against a proposed wind farm in her constituency.
There the claimant applied to quash the decision of the secretary of state, on a planning appeal recovered by him, to refuse planning permission – contrary to the recommendations of his inspector – for a five-turbine wind farm. (As he was entitled to, the minister for housing had made the decision on behalf of the secretary of state.) In one of its grounds, the claimant contended that the decision was taken in breach of natural justice, in circumstances that gave rise to actual or apparent bias.
Bias through badgering?
The constituency MP had a record of campaigning against onshore wind farms, and the claimant’s proposed development became a matter of particular concern to her. She had corresponded from an early stage with both the secretary of state and PINS, and had urged the former to recover the planning appeal for his own determination. She continued to do so after the public inquiry, on some occasions attaching comments from her constituents, and writing at the same time to the minister for housing. Evidence was also given to the effect that she had “badgered” the minister in a House of Commons lobby, and had also discussed the matter with him in the House of Commons tea room. These were the principal circumstances on which the claimant relied.
As is well known, the test where apparent bias is alleged involves asking the question: “Would the fair-minded and informed observer, having considered the facts, conclude that there was a real possibility that the tribunal was biased?” (The facts are those apparent to the court on subsequent review, not merely those of which the hypothetical observer would have been aware at the original time.)
The court first dismissed the argument that there had been actual bias, pointing out that it is rare and difficult to prove and stating that there was simply no evidence to support the contention in this case. It then held that a fair-minded and informed observer would not conclude that there was a real possibility of ministerial bias. Such an observer would be aware that lobbying of ministers by a constituency MP is part and parcel of his or her representative role. Equally, it would be wrong for a court to conclude that there was anything improper with it, as a matter of law.
Furthermore, the House of Lords had recognised judicially that, while ministers must act fairly, their decisions are not to be seen as judicial decisions and their role is not a judicial one.
Natural justice and fairness
By way of a further ground, the claimant separately contended that the secretary of state’s decision was also unlawful because – before taking it – he failed to inform the claimant of the correspondence passing between the constituency MP, on the one hand, and himself and the minister of housing on the other. The claimant had no opportunity to comment on it.
Similarly, the claimant had not been notified of the meetings between the constituency MP and the minister, nor given an equal opportunity to put its case to the latter in person. This was in breach of natural justice and common law fairness.
The court cited the decision of the Court of Appeal in Hopkins Developments Ltd v Secretary of State for Communities and Local Government [2014] EWCA Civ 470; [2014] 2 EGLR 91, in which Jackson LJ stated that the following principles of natural justice apply in planning appeal inquiries: (1) any party to a planning inquiry is entitled to (a) know the case which he has to meet and (b) have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case; and (2) if there is a procedural unfairness that materially prejudices a party to a planning inquiry, that may be a good ground for quashing the inspector’s decision.
(In that case, Beatson LJ also added that the “right to be heard” limb of the common law principles gives the individual the opportunity to put its case, and to do that the authorities in the planning context show that what is needed is knowledge of the issues in fact before the decision-maker.)
The court then rejected this ground of challenge also, holding that there was no procedural unfairness. The claimant knew the case being advanced by the objectors and the constituency MP, and the issues on which they relied. None of the matters raised in the constituency MP’s correspondence were new; all had been made in material before the planning inquiry. The lobby and tea room meetings were of no consequence. The claimant had had a reasonable opportunity to adduce evidence and make submissions in relation to the opposing case. They were matters that it dealt with in its evidence and submissions to the planning inquiry.
John Martin is a planning law consultant
