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Wednesday, February 24, 2016
Whether you support wheelie bins or not, is not the point of this article. The question is whether or not Ealings’ Labour run Council acted lawfully in deciding to impose them?
On 16th June last year Cllr. Bassam Mahfouz, Cabinet Member and spokesman for Environment, Transport and Leisure, fudged his way through an ambiguous Cabinet Report announcing proposals for a new system of refuse collection.
On the face of it, the report looks as though the Labour run administration had covered every angle. The reason given for the change was justified on the basis that no previous policy commitment had been made to continue with the current system and without the change, the Councils legal obligation to comply with a target 50% recycling rate by 2020 was unachievable. Financial advantages are mentioned also but are presented as a benefit of the change rather than an aim.
Other sections of the report are far less clear and easily perceived as misleading. In acknowledging where the Council does not have a duty to consult, the Council took a rather bizarre approach and cites The Environmental Protection Act 1990. This is irrelevant in respect of their duty to consult residents on a service change. The Councils true obligations, are presented (with some artful wording), in such a convoluted way, that one can understand now how easy it was for the Labour run administration, to pull the wool over everyones’ eyes. Most importantly, the legal section, where you would usually expect the Councils obligations to be noted, (namely, to have regard for its duty under statutory and common law, to act fairly and to have regard for legitimate expectation), is completely absent of these requirements.
On closer inspection the report exposes a strategy of deceit and obfuscation. It is conspicuously unfair and devoid of the requisite direction and steps the decision-maker is required to take in order for the decision to be lawful. Was this an act of wilful contempt or a failure to understand correctly the law that regulates its decision- making process? In a classic summing up of the grounds for Judicial Review, Lord Diplock described illegality as a ‘failure by a public body to understand correctly the law that regulates its decision- making power’.
The facts in this case were of overriding material importance, it is incomprehensible that the Council did not acknowledge the relevance of the previous consultation (on the same service) and the legitimate expectation arising from it. Nor did the report contain any evidence that the Council paid regard to them before the decision was taken. The Council simply averred that past practice, policy or promise had not occurred and that legitimate expectation was only relevant, in exceptional circumstances.
This of course is not true as Jonathan Auburn explains in Judicial Review; Principles and Procedure 2013.
- Common law duty to consult — ‘Where a duty to consult arises out of a legitimate expectation, the individuals who hold the relevant expectation will have to be consulted’.
- ‘A decision that is taken pursuant to a procedure which does not comply with the requirements of fairness will be unlawful. The common law duty to act fairly, and the common law requirements of fairness, are fundamental aspects of the judicial control of public bodies’.
- ‘Where a public body has previously taken a decision in a materially similar case, that previous decision is likely to be a relevant consideration when the public body comes to consider a subsequent case’.
For a similar view, see: M Supperstone. J Goudie. and P Walker. Judicial Review. 4th edition (London: LexisNexis Butterworths. 2010).
In 2006/7 the Conservative run Council launched the largest (to date) and most comprehensive two stage public consultation on their refuse collection service. During stage 1, Option C, two wheelie bins and Option D, fortnightly collections were so unpopular that they were dropped entirely as a future solution and were not included in the second stage of the consultation.
Results of Stage 1, the whole of Ealing (W5 and W13), half of Hanwell W7, Elthorne ward (south of the railway tracks) and Southfield (boarding Chiswick) in Acton. Made a clear decision to retain black sacks. As a result, the above resident’s were not required to participate in Stage 2 of the consultation. Outcome of Stage 2, Only three of the remaining wards favoured bins whilst the others were undecided.
It is widely accepted as in this case, that the Council is not required to consider the results of a the above consultation, only the fact that it occured. However, the court has a different way of approaching things and will certainly take the results of a former consultation into account as explained in Judicial Review; Principles and Procedure 2013;
- ‘When considering what is required in a particular case, the courts are likely to have regard to a number of factors, including the legislative and administrative context; the degree of urgency required by the nature of the decision-making; and whether views have already been expressed by consultees in earlier discussions or consultation processes’.
As previously mentioned, a legitimate expectation can arise out of past practice, policy or a promise. We have established unequivocally that past practice to consult on this service created a precedence. Did anything else contribute to the expectation residents had, such as a promise and if so should these have been considered and how binding would the promise be on the Council?
A promise is defined as any of the following; an express assurance on which expectation is based; something that has the effect of an express assurance, an indication of what may be expected; an indication of future excellence or achievement or a declaration that something will or will not be done.
The answer is yes. Promises were made by Cllr. Mahfouz, the portfolio holder, the decision-maker and the very person with ostensible authority to bind the Council. The promises reassured residents of what they had as a service and what they could expect in the future. Further, he said that his administration understood what residents of Ealing wanted and he affirmed that the introduction of wheelie bins and fortnightly collections would be unacceptable to both his administration and Ealing residents. Under the circumstances, it was perfectly reasonable for residents to believe from the above, that they could trust what he said and that any change was far from likely to include what is currently proposed.
Cllr. Mahfouz, portfolio holder for Environment, Transport and Leisure and thus the decision-maker in this case, made various promises to residents, this list is not exhaustive:
- The alternative to a return to a subscription based garden waste collection service would have been to introduce two forced wheelie bins to every household in this borough and fortnightly collection of rubbish and recycling. Such a decision would have brought about similar savings but clearly this is unacceptable to us as a council and you as members of the public who we serve.
- However, it is widely recognised that kerb-side sorting is the best method of recycling. We, and I believe the majority of residents, want to stick with this method of recycling and I am grateful to every individual and family who take the effort to recycle, it is a vitally important thing to do not simply for the council and for fellow residents but environmentally too.
- Cllr Bassam Mahfouz speaks to Paul Ross on BBC London 94.9 Breakfast show about how we are guaranteeing the weekly collection of mainstream household rubbish and recycling, whilst having to make the tough decision to return to charging for doorstep garden waste collection.
The implementation of s.138 of the Local Government and Public Involvement in Health Act in April 2009, placed a new general duty on local authorities in England, to take particular steps, before starting the decision-making process. These steps were introduced to fortify current legislation and focus on the manner of decision-making and the process of fairness and reasoning leading up to a decision. The purpose of which is to prevent unlawful decision-making and abuses of power. Clearly these steps were not taken.
In conclusion, Cllr. Mahfouz purposely frustrated the legitimate expectation of thousands of Ealing residents with some expertise, he fettered his discretion by predetermining the decision, dodged his duty to act fairly and denied people of their rights. The answer as to whether or not this is a case for judicial review, in my opinion, tilts heavily in one direction.
QC Beverly Lang (The Duty to Act Fairly); ‘Where important rights are at stake such as rights protected by the Common Law, the courts will be particularly concerned to ensure that there is no procedural unfairness. The duty to act fairly has been extended over the years to include significant further rights, such as, Legitimate Expectation’.