Why a whipped vote on April 30 could leave the Horsham housing plan unsafe and open to challenge

Christian Mitchel.
Christian Mitchel.

The Local Government Association’s new campaign slogan to recruit councillors does, in my view, say it as it should be: “Stand for what you believe in. Be a councillor.”

But what does that mean in a world where some local authorities have become dominated by party politics, private group meetings, single-party cabinets that meet in closed sessions, and whipped votes?

Sir Winston Churchill offered the most reliable metric of loyalty in public life: ‘First - country, second - constituency, third - party.’

Or put in local context: ‘First – district, second – ward, third – party.’

This is the principle behind the national rules of all political parties and the County Times’ Free Speech Charter - but no-one has put it more succinctly than Sir Winston in his six words!

It is also the cornerstone of the Acts of Parliament, which govern local decision-making.

Councils are required by law to prepare local development blueprints and on April 30 we will vote on the new local plan for the Horsham district.

When we do so, we will each be under a personal legal obligation to reach our own conclusions based on facts and evidence - and not abdicate these in favour of voting in accordance with a party line.

Whipping of any kind is not appropriate nor legally safe as the High Court has confirmed.

In 1988 residents judicially reviewed a decision of Waltham Forest Borough Council when councillors voted for an increase in the level of the rates (now council tax).

Sir John Donaldson, Master of the Rolls said significantly that: “the ultimate decision [for councillors] is for them and them alone as individuals”. He explored this further in the context of councillors who are members of a political group and subject of whipping and he made clear that the duty of an individual councillor was to make up his own mind on how to vote by saying: “It is only if he [a councillor] abdicates his personal responsibility that questions can arise as to the validity of his vote. 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 may on occasions be a fine one but it is nevertheless very real.”

Of course the concern with whipping is that it may create the perception of pre-determination, or of councillors voting in accordance with party policy regardless of the merits of matter before them or material considerations to which they are required to take note.

So what is the legal definition of whipping? This was considered in 2011 when Mr Michael de Whalley, who was a member of the ‘King’s Lynn Without Incineration’ group judicially reviewed the decision of Norfolk County Council in the way that it awarded the contract to build an incinerator.

The court heard that a cabinet meeting was preceded by the ruling group’s meeting, at which the party showed its ‘in principle support’ for incineration. Mr de Whalley claimed that this meant the subsequent public meeting was ‘a sham’ and ‘a stage pantomime’, and that the cabinet ignored a poll showing local objections.

The High Court judge Mr Justice Nicol decided that ‘whipping is the imposition or threat of imposing sanctions if the party instructions are not followed.’

The July 2013 vote at Horsham District Council on the strategy was governed by just such sanctions and is, against this legal definition, whipping.

This was reinforced by two e-mails to me. On July 20, leader Ray Dawe wrote: “I also understand from Claire [Vickers] that you have told her that rather than abide by the agreement made at the last group meeting whereby it was specifically agreed that you could speak against the draft strategy and then abstain, you will be voting against it. I hope that this is not correct information. As a long standing Conservative group member you will appreciate that we have group rules for a purpose. If the rules are flouted then an investigation of what disciplinary action should be taken will automatically follow. As I say, I hope that given your considerable council experience and the fact that you are deputy chairman of the council you will not in fact be doing as Claire has reported.”

And two days later at 22:57, his deputy Helena Croft concluded a note stating: “At Group this evening after you left, it was clearly stated in the minutes of the June Group meeting, as you will see attached, along with tonight’s group minutes, that there was a strong majority in favour of the proposed Housing Strategy. The Leader at the meeting in June, made an exception to the Group rules in allowing members to speak against this publicly if they so chose, whilst also making clear that at the vote at Council, in line with Group rules, members would not vote against a Group decision but abstain. This was clearly upheld by the Group this evening, and I trust you will uphold this democratic process on Thursday.”

I was not the only opponent who received communication prior to the July 25 vote.

Another colleague - whom I will not name but who has allowed me to quote from this note received by them - was told by Mr Dawe on July 19: “I am on holiday in France but Claire [Vickers] has been in touch with me! This is a delicate message but one I feel I must put to you in view of her comments to me and [the] letter in the County Times. My understanding both at and following our last group meeting was that as group protocol does not permit a member who disagrees with a group resolution to vote against (only abstain), you would not be coming to the council meeting next week. Claire now tells me that you are intending to come and vote against!”

It is clear that councillors, in law, must have regard to all material considerations in reaching their decision and failure to do so will create a real risk that the decision can be challenged in the High Court. A councillor must not give the impression to a fair-minded and informed observer that they had abandoned their personal obligations in deciding a matter.

This legal test was decided by another High Court judge, Mr Justice Collins in 2006.

Here at HDC we are guided by our own Code of Conduct and we must also ensure that pressure isn’t brought to bear on us to vote in a particular way because then that in itself can be judged as a breach of the Code.

And if that wasn’t enough, blindly voting in line with a party whip and abdicating individual decision making would be a breach of Principle 3 of the General Principles of Public Life which states: “Members should make decisions on merit, including when making appointments, awarding contracts or recommending individuals for rewards or benefits”.

So when councillors vote on the preferred strategy on April 30 they must decide, alone, if the plan is ‘sound’ in planning terms - they cannot vote ‘blindly’ in line with a party line if threatened with any kind of discipline and must at all times have regard to material considerations in respect of the decision that they take.

These guiding principles mean that a councillor doesn’t in fact have a tightrope to walk – so long as they keep their eyes on the material matters and not on those that aren’t.