A local council’s standing order restricting voting on a deferred planning application to committee members who attended the earlier meeting was challenged as unlawful. The Supreme Court held the standing order was within the council’s power to regulate its proceedings under the Local Government Act 1972.
Background
The case concerned a planning application by Old Truman Brewery Ltd to develop a disused brewery property in Spitalfields, within the London Borough of Tower Hamlets. The Spitalfields Historic Building Trust opposed the development. The Council’s Development Committee first considered the application on 27 April 2021, with five members present who heard officer presentations and public representations. The Committee deferred the decision to allow negotiation of extended section 106 agreement terms.
When the application returned to the Committee on 14 September 2021, only three members who had attended the earlier meeting were present. The Council’s Constitution contained standing orders (paragraph 5.4 and paragraph 11.4 of the Procedure Rules) which restricted voting on deferred applications to members who had been present throughout the Committee’s earlier consideration of the matter. By a vote of two to one, the Committee resolved to grant planning permission. It was agreed between the parties that had the restrictive voting rule not applied, other Committee members might have attended and the outcome might have been different.
The Issue
The sole issue before the Supreme Court was whether the restrictive voting rule in the Council’s standing orders was lawful — specifically, whether the power in paragraph 42 of Schedule 12 to the Local Government Act 1972 (and section 106 of the same Act), which empowers a local authority to make standing orders ‘for the regulation of their proceedings and business’, extended to making a standing order restricting which committee members could vote on a deferred planning application.
The appellant accepted that if the power existed, its exercise was rational and for a proper purpose. The case therefore turned on a narrow point of statutory interpretation.
The Appellant’s Arguments
Mr Richard Harwood KC, for the appellant, contended that councillors who are committee members have an entitlement to vote on matters before the committee unless prohibited by statute. He argued that the right to vote was fundamental to the scheme of the LGA 1972 and was implicit in paragraph 39 of Schedule 12, which provides that questions shall be decided by a majority of members present and voting. He submitted that the general language of paragraph 42 of Schedule 12 and section 106 could not authorise standing orders which abrogate this fundamental right, invoking the principle of legality. He relied upon the pattern of express statutory provisions which remove councillors’ voting rights as evidence that Parliament recognised only primary legislation could restrict this right. He also relied on the 1989 Act’s proportionality requirements and the definition of ‘seat’ therein, and on the Northern Irish decision in In re Hartlands (NI) Ltd [2021] NIQB 94.
The Court’s Reasoning
The Ordinary Meaning of the Statutory Language
Lord Sales, delivering the unanimous judgment, held that the provisions in paragraphs 39 and 42 of Schedule 12 and section 106 of the LGA 1972 should be read according to the natural and ordinary meaning of their language. The power to make standing orders ‘for the regulation of their proceedings and business’ was entirely general, and regulation of the circumstances in which a member is entitled to vote plainly falls within that language.
“The language – ‘may make standing orders for the regulation of their proceedings and business’ – is entirely general. The business of a local authority includes making decisions on planning applications. The proceeding by which a local authority takes such decisions is by a vote of councillors in a meeting … In my view, it is clear that the relevant standing orders have been made for the regulation both of the Council’s ‘proceedings’ and of its ‘business’.”
The Entitlement to Vote is Not Absolute
Lord Sales emphasised that the entitlement to vote is implicit in, but not created or conferred by, paragraph 39 of Schedule 12. It derives from the common law of corporations predating the Municipal Corporations Act 1835 and is assumed by the legislation. Crucially, this entitlement has always been subject to qualification by rules designed to support effective decision-making, including disqualification for bias, predetermination, and pecuniary interest.
“The existence of these rules shows that the right of a councillor to vote cannot be regarded as absolute or fundamental in the sense proposed by Mr Harwood: it is always possible that, by reason of specific circumstances affecting a particular councillor, they may be disabled from voting on a matter.”
The Principle of Legality Does Not Apply
Lord Sales rejected the application of the principle of legality. Citing Moohan v Lord Advocate [2014] UKSC 67, he held that the right to vote was derived from statute and was not an established common law right existing independently of the statutory regime. He stated that the principle of legality has a narrow application and is not engaged where there is no relevant established fundamental right or legal principle.
“The right of councillors to vote on business of the local authority is not an established right recognised by the common law outside the statutory regime of which it forms part. On the contrary, the general entitlement to vote is assumed by the legislation and is implicit in it.”
Public Law Constraints Provide Adequate Safeguards
Lord Sales identified that the exercise of standing order powers is subject to ordinary public law constraints — rationality and proper purpose — and that the importance of the democratic principle means a form of heightened scrutiny applies when reviewing standing orders that limit voting. This analysis was consistent with the Court of Appeal’s approach in R v Flintshire County Council, ex p Armstrong-Braun [2001] LGR 344, where a standing order limiting the ability to place motions on an agenda was held to fall within paragraph 42 but was quashed for inadequate consideration of the democratic implications.
“The importance of the democratic principle that a councillor should be able to represent their constituents and the public in the local authority’s area by voting on matters affecting them means that the ambit of a local authority’s discretion, in terms of what may count as rational or as a proper purpose in this context, is limited to a significant degree so that a form of heightened scrutiny would be appropriate in relation to judicial review of a standing order which limited a councillor’s ability to vote.”
Legitimacy of the Restrictive Voting Rule
Lord Sales found the standing orders served the legitimate purposes of protecting the integrity of the decision-making process, upholding the importance of listening to representations, and promoting public confidence in the planning process. He agreed with Sir Keith Lindblom in the Court of Appeal that the rule was ‘perfectly logical and sensible’.
“The possibility that a decision could be taken by Committee members who did not attend the earlier meeting to hear the explanation by Council officers and the representations by members of the public might lead people to think that the hearing of such an explanation and such representations was something of a hollow charade, rather than an important and significant part of the decision-making process.”
The 1989 Act and Hartlands
Lord Sales held that the 1989 Act did not alter the interpretation of the LGA 1972 provisions. The definition of ‘seat’ in Schedule 1 to the 1989 Act was a definitional provision, not one conferring absolute voting rights. The Northern Irish decision in Hartlands was distinguished on the basis that it concerned a materially different statutory provision (section 30(2) of the 2011 Northern Ireland Act, referring to ‘procedures’ for pre-determination hearings) rather than the power to regulate ‘proceedings’.
The Alternative Arguments
The second respondent’s Committee reconstitution argument and sub-delegation argument were dismissed as ‘completely divorced from reality’. The standing orders did not reconstitute the Committee or create a sub-committee; they simply set rules about entitlement to vote.
Practical Significance
This decision confirms that local authorities possess broad power under paragraph 42 of Schedule 12 and section 106 of the LGA 1972 to make standing orders regulating when committee members may vote, including rules restricting voting on deferred planning applications to members who were present at earlier meetings. However, this power is subject to heightened public law scrutiny given the importance of the democratic principle. The decision provides important clarity on the relationship between the general entitlement of elected members to vote, the statutory powers to make standing orders, and the principle of legality. It affirms that the principle of legality does not apply to read down clear statutory language conferring rule-making powers simply because voting entitlements are engaged, since those entitlements are creatures of statute rather than independent fundamental common law rights. The judgment also clarifies that a chair of a meeting may exclude the vote of a disentitled member, and that the court may grant prohibitory relief to enforce proper decision-making procedures.
Verdict: The appeal was dismissed. The Supreme Court unanimously held that the restrictive voting rule in the Council’s standing orders was lawfully made within the power conferred by paragraph 42 of Schedule 12 to the Local Government Act 1972 and section 106 of the same Act. The grant of planning permission for the Old Truman Brewery development was upheld.
