Some time ago, Paul McCartney sang about a long and winding road that led to his loved-one’s door. Many years later (in a slightly less romantic context) the Localism Bill is also ­travelling a very long and winding road that will no doubt lead to royal assent, probably in late autumn this year.

During August, in formal terms at least, the bill took a breather (along with parliament, which is in recess) until the journey resumes in the House of Lords, with the report stage expected on 5 September.

Not that all activity has ceased while the bill reclines on its sun-lounger. There has been no shortage of amendments to be moved at the report stage. Among these (moved by lords McKenzie and Beecham under the heading Devolution to Core Cities) is a proposed power to transfer functions to permitted authorities.

This is presumably designed to facilitate community budgeting (formerly known as Total Place). Public sector funding streams for an area are rationalised and pooled into a single pot to be applied as the local area determines (assuming governance arrangements can be agreed on to achieve this).

A proposed new section 9HA in a new part 1A to the Local Government Act 2000 (in schedule 2 to the Localism Bill) might also be used in this connection. For this (among other things) enables the secretary of state to transfer a local public service function from any person or body to an authority’s elected mayor. And the proposed section 9HB would enable an elected mayor, during their first year of office, to make proposals to the secretary of state regarding how the clause 9HA power should be ­exercised in relation to the local authority in question.

On standards, while Lord Wills (Labour) moved an amendment proposing a mandatory code that deals with financial conflicts of interest, a cross-party group of peers had previously met to address what they considered to be ‘serious deficiencies in the new standards system proposed in the bill’. They are now moving amendments (among other things) to remove the proposed new criminal offence in the bill and to require authorities to have codes of conduct consistent with the standards in public life together with (as at present) standards committees with independent members.

The Association of Council Secretaries and Solicitors (ACSeS) has expressed concern at the lack of cohesion between the proposed duty on authorities to promote and maintain high standards of conduct by local authority members, and the permissive nature of the proposed standards framework. Given the importance of public confidence in local democratic institutions, the ACSeS has expressed support for any initiative likely to achieve sound, effective and consistent ethical and corporate governance.

The proposed competence power for English authorities seems to be sailing forward fairly safely amid widespread approval. There is certainly no shortage of dangerous public law rocks concealed below the waterline awaiting unwary authorities considering decisions (equalities being an obvious example).

However, the proposed new power should at least help with vires challenges, by making very clear to courts on any challenge the will of parliament as to the breadth and reach of the measure. Authorities will, of course, need to act prudently, reasonably, fairly and consistently with any applicable convention rights. But the power should give authorities the confidence to act creatively (in a sensible way) for the good of their areas. It should also facilitate community budgeting. When the competence power comes in, it will be sensible for authorities seeking to use it to make this clear in the ­decision report, so that appropriate decisions are clearly founded on it.

Bill of Rights

The way in which the courts (not least the European Court of Human Rights (ECHR)) interpret the proportionality balance on qualified convention rights stirs continuing controversy. Examples include the ‘votes for prisoners’ case, and instances where attempted deportation of criminal immigrants has failed since their convention rights could have been prejudiced were they returned to their country of origin.

But while the Conservative manifesto had pledged that to ‘protect our freedoms from state encroachment and encourage greater social responsibility, we will replace the Human Rights Act with a UK Bill of Rights’, Liberal Democrat influence in the coalition government adjusted the mix considerably. So, although a Bill of Rights remains under consideration, with a Commission on a Bill of Rights (CBR) looking at the issue, the focus is rather different from what the Conservatives first had in mind.

The text of the May 2010 coalition agreement on this issue is substantially replicated in the CBR terms of reference. So, although the commission, in examining the operation and implementation of convention obligations, will ‘consider ways to promote a better understanding of the true scope of these obligations and liberties’, equally the commission is asked to investigate the creation of a UK Bill of Rights that ‘incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extends our liberties’. Two strands at some variance, reflecting differences of political view within the coalition.

The CBR has a distinguished membership including Baroness Kennedy and Lord Lester but also Dr Michael Pinto-Duschinsky, the author of the February 2011 Policy Exchange Paper Bringing Rights Back Home. Dr Pinto-Duschinsky proposes two-year time-limited negotiations with the Council of Europe regarding ECHR reform, failing which the UK should consider withdrawing from its jurisdiction while retaining in UK law the text of the European Convention on Human Rights.

This, he argues, would leave UK judges free to develop a distinctive UK jurisprudence, so that cases can be re-considered in the context of British political culture as well as the provisions of the proposed British Bill of Rights.

While former law lord Lord Hoffmann is supportive, referring to ‘the extraordinary power to micromanage the legal systems of the member states of the Council of Europe’ assumed by the ECHR, there are certainly going to be many vociferous voices in support of the current human rights formulation. These will no doubt include ECHR president Jean-Paul Costa, who told the Guardian in June 2010 that introducing a British Bill of Rights would create a complex situation, creating divergences between ECHR and UK caselaw. The CBR discussion paper can be found on the MoJ website (www.justice.gov.uk). Responses to the consultation should be sent by 11 November to responses@commissiononabillofrights.gsi.gov.uk.

Bias and predetermination

Eric Pickles, secretary of state for communities and local government, and his ministerial colleagues have been much, exercised by what they have considered to be the stranglehold on local democracy of the law of bias and predetermination in public authority decisions. They consequently pledged to legislate on this issue and clause 14 of the Localism Bill (as it was on 20 July 2011) is the present formulation.

Following Porter v Magill, Weeks v Magill [2002] LGR, bias occurs where a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. Unlawful predetermination is where, in the decision-making process, a public authority decision-maker closes their mind to any outcome but the one which they have predetermined. It can be distinguished from lawful predisposition where the decision-maker’s mind, while predisposed to a particular view, remains open to other outcomes at all material times.

Clause 14(2) therefore provides (among other things) that a decision-maker is not to be taken to have had, or appeared to have had, a closed mind when making the decision ‘just because… the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to the matter…’

This in fact replicates the common law position following R (Lewis) v Persimmon Homes Teesside Ltd [2008] EWCA Civ 746, where Lord Justice Pill had said that ‘clear pointers are… required if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision’. And the approach of Lord Justice Pill was followed in a local authority bias case (R (Berky) v Newport City Council and others [2011] EWHC 2100).

There, the issue surrounded councillor Richards, a member of the council’s planning committee, who was subject to allegations of bias and predetermination on the issue in question. However, Judge Cooke QC, the Recorder of Cardiff, found no evidence probative of the allegations.

The councillor was, however, criticised for remarks made at the relevant committee meeting. The councillor had said that he was ‘proud to be associated with ward colleagues, democracy is in action here, thousands have signed the petition’. Also he ‘would remind officers you are here to serve the public’ and ‘…officers may [be] frightened of legal challenge if planning permission is granted’ (emphasis added).

The judge said that the emphasised remark was not only unfair and ungracious, but was capable of creating the impression that the speaker was biased or that he had pre-determined the matter. For why ‘else would he criticise the author of a balanced, careful and comprehensive report in such immoderate terms’?

However, despite this ‘intemperate remark’, which had been ‘ill-considered’ and made in ‘the heat of the moment’, in the light of Persimmon, the judge did not find ‘material here capable of vitiating the decision of the planning committee for bias, apparent bias or predetermination’.

The existence of bias and predetermination is a matter of evidence sufficient to convince a court that it would be unjust for the decision to stand. As indicated, in a local authority ­context, this requires ‘clear pointers’ which were not established in the Newport case.

Dr Nicholas Dobson is a senior consultant with Pannone specialising in local and public law. He is also communications officer for the Association of Council Secretaries and Solicitors