“As democratically elected representatives they are expected to receive and consider representations and lobbying from those interested in the issues they are determining”.
A High Court judge recently considered the right of local councilors to receive correspondence from the public and to consider it when making decisions. Richard Harwood QC analyses the outcome.
Richard Harwood KC is a barrister at 39 Essex Chambers.
The High Court has ruled, for the first time, whether members of the public can write to councillors, and whether councillors can read those letters in advance of taking decisions. The case concerned the practice of the London Borough of Hackney of prohibiting planning committee members from reading correspondence sent to them about forthcoming applications.
Holborn Studios run the largest photographic studio in Europe. Redevelopment is proposed by their landlords, with a scheme which will not accommodate them. In 2017 planning permission was quashed because an unfair failure to reconsult on amendments and a failure to disclose application documents in breach of a legitimate expectation: R (Holborn Studios) v London Borough of Hackney  EWHC 2823 (Admin). A new application was considered by Hackney’s Planning Sub-Committee in January 2019. Shortly before the meeting Holborn Studio’s managing director wrote to the committee members about the officers’ report and received this reply from the chair:
“Planning members are advised to resist being lobbied by either applicant or objectors.”
Holborn Studio’s solicitors, Harrison Grant, then wrote to the planning officers, copying in the committee members, explaining why the officer’s recommendation to refuse the application should be rejected. They also said that Hackney’s approach of not allowing committee members to read representations sent to them was unlawful. A councillor replied that he had been given legal advice that he “should forward any lobbying letters to Governance Services and refrain from reading them”. Consequently, he said, “I have not read your email”. In an addendum report the officers responded to the solicitors’ letter:
“Members are warned about viewing lobbying material as this can be considered to be prejudicial to their consideration of the application.”
This reflected the Council’s leaflet ‘How to have your say at the Planning Sub-Committee’, sent to the public in advance of the meeting “it is advised that you don’t contact any of the councillors before a meeting”.
The particular issue was whether the public could write to councilors about decisions they will be making and whether those councilors could consider those representations. The point was remarkably free of any judicial authority, apart from a passing comment by Dove J in R(Legard) v Royal Borough of Kensington and Chelsea  that “As democratically elected representatives they are expected to receive and consider representations and lobbying from those interested in the issues they are determining”.
Holborn Studios relied on Article 10 of the European Convention on Human Rights and the common law. Article 10 provides “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information … subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society”. In R(Lord Carlisle of Berriew v Secretary of State for the Home Department  Parliamentarians asked for the exclusion of a dissident Iranian politician from the United Kingdom to be lifted to enable her to address meetings in Parliament on issues associated with Iran. Lord Neuberger said at paragraph 91, discussing meetings with MPs and Peers:
“These are hugely important rights. Freedom of speech, and particularly political speech, is the foundation of any democracy. Without it, how can the electorate know whom to elect and how can the parliamentarians know how to make up their minds on the difficult issues they have to confront? How can they decide whether or not to support the Government in the actions it wishes to take?”
Baroness Hale emphasised that whilst the politician could still speak to UK Parliamentarians by video or audio link, or they could see her in Paris, preventing a meeting at Westminster was still an interference with the Parliamentarians’ Article 10 rights.
Holborn Studios also relied on the common law as being in step with Article 10 citing Lord Steyn in R v Secretary of State for the Home Department ex p Simms :
“The starting point is the right of freedom of expression. In a democracy it is the primary right: without it an effective rule of law is not possible. … In Attorney-General v. Guardian Newspapers Ltd. (No. 2)  1 A.C. 109, 283-284, Lord Goff of Chieveley expressed the opinion that in the field of freedom of speech, there was in principle no difference between English law on the subject and article 10 of the Convention. …
“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfillment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market:” Abrams v. United States (1919) 250 U.S. 616, 630, per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country …”
Dove J referred to the Local Government Association’s publication “Probity in Planning” which says “Lobbying is a normal part of the planning process”. It was “indisputably correct” that “that issues in relation to freedom of expression and the application of Article 10 of the ECHR were engaged in the communication between members of a local authority, and in particular members of a planning committee, and members of the public who they represent and, on whose behalf, they were making decisions in the public interest” (para 78). He held (para 78):
“Similarly, bearing in mind the importance of the decisions which the members of the planning committee are making, and the fact that they are acting in the context of a democratically representative role, the need for the communication of views and opinions between councillors and the public whom they represent must be afforded significant weight. In my view, it would be extremely difficult to justify as proportionate the discouragement, prohibition or prevention of communication between public and the councillors representing them which was otherwise in accordance with the law. Here it was no part of the defendant’s case to suggest that the communication which the claimant made in their correspondence in respect of the committee report was anything other than lawful.”
Mr Justice Dove concluded (para 79):
“Receiving communications from objectors to an application for planning permission is an important feature of freedom of expression in connection with democratic decision-making and in undertaking this aspect of local authority business. Whilst it may make perfect sense after the communication has been read for the member to pass it on to officers (so that for instance its existence can be logged in the file relating to the application, and any issues which need to be addressed in advice to members can be taken up in a committee report), the preclusion or prevention of members reading such material could not be justified as proportionate since it would serve no proper purpose in the decision-making process. Any concern that members might receive misleading or illegitimate material will be resolved by the passing of that correspondence to officers so that any such problem of that kind would be rectified. In my view, there is an additional issue of fairness which arises if members of the planning committee are prevented from reading lobbying material from objectors and required to pass that information unread to their officers. The position that would leave members in would be that they would be reliant only on material from the applicant placed on the public record as part of the application or the information and opinions summarised and edited in the committee report. It is an important feature of the opportunity of an objector to a planning application to be able to present that objection and the points they wish to make in the manner which they believe will make them most cogent and persuasive. Of course, it is a matter for the individual councillor in the discharge of his responsibilities to choose what evidence and opinion it is that he or she wishes to study in discharging the responsibility of determining a planning application, but the issue in the present case is having the access to all the material bearing upon the application in order to make that choice. If the choice is curtailed by an instruction not to read any lobbying material from members of the public that has a significant impact on the ability of a member of the public to make a case in relation to a proposed development making the points that they wish to make in the way in which they would wish to make them.
The standard correspondence clearly advised against members of the public writing directly to members of the committee; there was no warrant for that advice or discouragement and it impeded the freedom of expression of a member of the public who was entitled to write to a member of the planning committee setting out in his or her own terms the points they wish to be considered in respect of an application and expect that the member would have the opportunity to read it.”
The permission was not quashed on this ground since whilst committee members had thought they were obliged to disregard a letter from Holborn Studios’ solicitors, their points were made by their QC at the committee meeting.
The judgment establishes, surprisingly for the first time, the right of local councillors to receive correspondence from the public and to consider it when making decisions. Part of that is the right of the public to write. There is also a recognition that members can and will be lobbied, whether in writing, in meetings, at social events or chatting in the street. Provided that is done openly, in particular, that correspondence is copied to officers whether by the writer or the recipient, that is not simply legitimate, but an important part of the democratic process.
The planning permission was quashed because the council failed to make affordable housing viability assessments available to Holborn Studios and the public. These were background papers and given government policy and guidance on transparency, the public interest did not allow these to be exempt information. Dove J found that the viability material which was published to justify a reduced affordable housing contribution was ‘opaque and incoherent’. This aspect of the case is considered in detail here.
Richard Harwood KC is a barrister at 39 Essex Chambers. He appeared for Holborn Studios in both cases, instructed by Susan Ring of Harrison Grant.