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3 Making decisions on quasi-judicial and regulatory matters
3 Making decisions on quasi-judicial and regulatory matters
Quasi‑judicial matters are ones where councillors are required to apply pre-determined rules and policies in order to make decisions. Key characteristics are that:
- decisions are based on law, policy and evidence
- decision-makers must be impartial and unbiased
- parties affected may have a right to be heard
- decisions can often be appealed or legally challenged.
Regulatory matters involve the Council regulating, approving, restricting or enforcing rules that affect individuals or organisations. Key characteristics are that:
- decisions affect rights, permissions or obligations
- councillors act as a decision‑maker or regulator
- decisions must be lawful, proportionate and fair.
Click though the images below showing examples of what quasi-judicial or regulatory decisions may involve:
Quasi-judicial or regulatory decisions typically involve:
Planning applications – This includes all applications made under planning legislation. They can include ones made by individuals, companies, organisations and even the Council itself.
Applications for alcohol licensing – This includes all applications relating to alcohol licensing, including personal licence applications, premises licence applications and occasional licence applications.
Applications for betting and gaming premises – This can include premises applications for bingo halls, casinos, betting premises, adult gaming centres, family entertainment centres and permits for unlicensed family entertainment centres, gaming machines and prize gaming.
Applications for taxi licences – This can include both driving and vehicles licences for taxis and private hire vehicles.
All other forms of civic licensing – This can include licences for various matters such as short-term letting, houses in multiple occupation, street trading, market and cinema operating, public processions, skin piercing and tattooing, and certain public entertainment matters.
Actions where the council is involved in any form of statutory enforcement procedure – This can include where the council is ensuring compliance with any planning controls or conditions attached to a registration or licence it has granted.
Employment actions – This only applies in respect of actions where the Council, as an employer, is involved in any disciplinary issues that you, as a councillor, may have a remit to deal with.
Procedures for statutory approval or consent involving the council – This only applies in respect of actions where the council is involved and that you, as a councillor, may have a remit to deal with.
Appeal procedures where the council has a role and where you are expected to adjudicate on applications – This can include licence appeals, school placement appeals and rates appeals.
This list is not exhaustive. You should seek advice if you have any doubt as to whether a matter is quasi-judicial or regulatory in nature.
Next, move onto 3.1 Quasi-judicial and regulatory decisions.
3.1 Quasi-judicial and regulatory decisions
Section 7 of the Code governs quasi‑judicial and regulatory decision-making. These decisions often have a significant impact on the applicant and others. The Code notes that there may be formal legal routes beyond the Council to challenge a decision made on a quasi‑judicial or regulatory matter, such as a court appeal.
Many of the decisions will be controversial so they may be subject to intense scrutiny. Failing to observe the terms of the Code, or to avoid the reasonable perception that you have done so, could result in a challenge against the Council’s decision with associated cost implications. A successful challenge can harm the Council’s reputation as well as your own. Even if any such challenge is ultimately unsuccessful, it is likely that the Council will still incur costs.
The Code requires you to make quasi‑judicial or regulatory decisions objectively and with an open mind. It lists what you should and should not do when considering and making such decisions. When making any decision, you should consider the individual merits of the case and take into account only relevant and material considerations. You should discount any irrelevant or immaterial considerations, which would include any views or policies that your political party might have.
The Code states that you will:
- Act fairly and be seen to be acting fairly.
- Take into account professional advice given to you by council officers.
- Tell those who may be seeking to influence you outside the proper decision‑making process that you will not form an opinion on an application until all information is available to all decision-makers.
The Code notes that you will not:
- Pre‑judge or demonstrate bias or express any view on an application before the appropriate meeting.
- Attempt to influence officers to adopt a particular position or lobby other councillors.
- Make any decision until all available information is to hand and has been duly considered at the meeting.
Site visits
Site visits can form part of the committee process, so a degree of formality should apply and you should behave accordingly. The Code notes that you must follow your Council’s procedures when undertaking site visits and must not give any impression during a visit that you have made up your mind before any decision‑making meeting.
Policy and strategic issues
The Code highlights decisions on policy and strategic issues under which individual applications may subsequently be decided, and outlines what you can and cannot do in respect of these. For example, it notes that you can support proposals you consider to be of benefit to the council area; however, you must not express any view that suggests you have a closed mind on the policy or strategic issue, regardless of any material considerations.
Making representations
The Code outlines how you can make representations on a specific regulatory or quasi-judicial matter, depending on whether you are a member of the decision-making committee:
If you are a committee member, you must declare an interest and may remain in the meeting while the matter is being discussed, but only for the purpose of making representations.
If you are not a committee member, you may make representations on specific regulatory or quasi-judicial matters only in accordance with your council's procedures for members of the public or other parties wishing to make representations.
The Standards Commission has produced an Advice Note for Councillors on Quasi-Judicial and Regulatory Decision-Making.
3.2 Managing expectations in respect of quasi-judicial and regulatory matters
You may find it useful to manage the expectations of members of the public who approach you for assistance. While you are there to represent them, you also have a duty to act in the interests of the Council as a whole and in accordance with the Code.
Managing the public’s expectations
To help you manage expectations, click on the flip cards below to see what you can and cannot do when you are approached by constituents for help.
Managing expectations of community councils
You may attend community council meetings in your capacity as ward councillor. It may be helpful for you to manage the expectations of community councillors, particularly in respect of what you can and cannot do when making quasi-judicial and regulatory decisions. You should remind them that while you attend community council meetings in order to listen to community councillors’ views and assist them, you also have a duty to act in the interests of the Council as a whole and in accordance with the Code.
To help you manage a community council’s expectations, click on the flip cards below to see what you can and cannot do.
3.3 Scenarios on quasi-judicial and regulatory matters
This section takes you through a set of practical decision-making activities that build on what you have learned in Section 3. These scenarios will help you apply the Code’s provisions on quasi‑judicial and regulatory matters and check your understanding of how to make fair, objective and informed decisions.
Activity 2.1 Quasi-judicial and regulatory matters – Part 1
a.
The councillor voted against the application so there was no personal benefit to him or his friend.
b.
Whether there is a relationship as alleged and the extent of this.
c.
Whether the decision to grant the licence would be popular with your constituents.
The correct answer is b.
Discussion
Whether the councillor should have taken part depends on the specific facts and circumstances of the case. It may be that what you have heard is not true and is simply an unfounded rumour. The councillor would only need to declare an interest and refrain from taking part in the consideration of the application if the objective test was met.
The objective test is whether a member of the public, with knowledge of the relevant facts, would reasonably regard the councillor’s connection to the licensing matter as being so significant that it would be likely to influence his discussion or decision-making.
When making quasi‑judicial and regulatory decisions, you must not take account of irrelevant or inappropriate matters, such as what may be reported in the press or what might be popular at the ballot box. The same applies to applying the objective test. If the test is met, the councillor should declare an interest. How he might vote or whether his view is popular is irrelevant.
a.
Whether the councillor’s friend was closely related (for example, a sibling) to the applicant.
b.
Whether the councillor is confident their friendship would not affect their decision-making.
c.
Whether the councillor voted the same way as other members of the Licensing Board.
The correct answer is a.
Discussion
Relevant facts include how close any relationship was (for example, whether the family member was a longstanding friend or just an acquaintance), and how close the family member’s relationship with the applicant was (for example, whether they were cousins who had not been in contact for years, or whether they were siblings).
Even if there was no potential for personal gain, or if the councillor voted the same way as other members of the committee, a failure to declare an interest could still amount to a breach of the Code if the objective test was met. The question is whether a member of the public, knowing the nature and extent of the relationship between the councillor and the family member (if any) and between that family member and the applicant, would reasonably regard the interest as sufficiently significant to be likely to prejudice his decision-making.
If you think the councillor has a declarable interest, you should raise the matter with them and/or with the Committee Chair. While it is a councillor’s personal responsibility to identify and declare interests as required by the Code, a failure to do so could lead to the decision being successfully challenged and could adversely affect the Council’s reputation.
a.
Yes – it is important to take this into account.
b.
No – this information should be disregarded.
The correct answer is b.
Discussion
No, you cannot take the information into account. Your decision must be made in accordance with the law and your Council’s policies, and must be based solely on the merits of the case and the evidence presented at the meeting.
You must discount the information provided by the constituent and ensure that your decision is based solely on the application, the Council’s policy and any applicable legislation.
You must not indicate or imply support for, or opposition to, an application before the licensing committee meeting. You must not attempt to influence officers to adopt a particular position before the meeting because this would suggest you are prejudiced in your decision-making.
a.
True
b.
False
The correct answer is a.
a.
True
b.
False
The correct answer is a.
a.
True
b.
False
The correct answer is a.
a.
True (potentially)
b.
False
The correct answer is a.
Discussion
You should declare an interest if the objective test is met. That is whether a member of the public, with knowledge of the relevant facts, would reasonably regard your connection (being your partner’s past work for the group) as so significant that it would be likely to influence your discussion or decision-making.
Relevant facts include the nature of the work your partner undertook and when and for how long they worked for the group. For example, if they worked as a policy consultant for ten years, members of the public might consider it likely that they shared the group’s aims. This would be different if they had only worked as a short‑term contractor to design a website or provide HR services.
Other relevant facts include whether you were involved with the group or supported its aims publicly. Although you are entitled to hold a preliminary view, you must keep an open mind and consider all relevant evidence, policies and material facts before making your decision. You must not do or say anything that suggests you have already made up your mind.
For example, publicly stating that ‘I agree with the anti‑wind farm group that all wind farms are blots on the landscape and I will oppose each and every one that comes before the committee’ indicates you do not have an open mind. By contrast, saying ‘some people find wind farms unattractive or noisy so I will need to be persuaded we should allow more in this area’ indicates you are willing to consider the merits of each application.
If the objective test is met, you must declare an interest and leave the room while the application is considered. A failure to do so could create a perception of unfairness or bias, even if you believe you can act objectively. It could also lead to a challenge against the Council’s decision and could damage the reputation of both you and the Council.
If the objective test is not met but you are concerned that members of the public may be aware of your partner’s past work, you may wish to make a transparency statement explaining why, having applied the objective test, you do not consider the connection amounts to a declarable interest.
Activity 2.2 Quasi-judicial and regulatory matters – Part 2
a.
Yes – the Code prohibits councillors from meeting applicants but not objectors.
b.
Yes – you may meet the constituent providing you do not prejudge the application and you manage their expectations.
c.
No – councillors are never permitted to meet anyone with an interest in a planning application.
The correct answer is b.
b.
You may meet the constituent but you must explain that you are only there to hear their views or explain the process. You cannot indicate support or opposition, or form a view before the committee meeting.
a.
Whether anything you do or say could be perceived as giving the constituent preferential access.
b.
Whether discussing the application could imply you have already formed a view.
c.
Whether the constituent is strongly opposed to the development and therefore entitled to your support.
d.
Whether you can provide factual information about the planning process without making representations.
The correct answers are a, b and d.
a.
You must avoid any behaviour that could suggest improper influence or unequal access.
b.
You must not prejudge, or appear to prejudge, the application. Your role is to consider the proposal objectively at committee.
d.
You may explain the process and signpost officers, provided you remain neutral.
a.
Advising officers of any representations the constituent makes.
b.
Seeking factual updates from officers about the progress of the case.
c.
Indicating your likely voting intention to reassure the constituent.
d.
Helping the constituent understand how to submit their views formally.
e.
Offering to advocate for or against the application if you agree with their concerns.
The correct answers are a, b and d.
a.
You may still take part in the decision if you declare your support openly.
b.
You must declare an interest and leave the room when the application is considered.
c.
You may attend the meeting and vote if you switch off your camera or microphone.
The correct answer is b.
b.
If you have acted as an advocate, paragraphs 7.9 and 7.10 of the Code require you to declare an interest and withdraw completely. This includes leaving the public or media gallery or online meeting entirely.
a.
You may freely attend and speak without following any formal procedures.
b.
You may make representations on behalf of the constituent, but only in line with the Council’s policies and standing orders.
c.
You may remain in the public gallery and gesture or signal to committee members or officers.
The correct answer is b.
b.
If the Council’s rules require the party making representations to leave the room or retire to the public gallery then you must do the same.
Now move onto 4 General conduct.