Blog: Quasi-Judicial and Regulatory Decision-Making

13th January 2023

Why the Councillors’ Code has a Separate Section on Quasi-Judicial and Regulatory Decision-Making

Section 7 of the Councillors’ Code of Conduct outlines what councillors should do when making decisions on quasi-judicial or regulatory matters. These types of decisions typically involve planning or licensing applications, such as ones concerning planning, alcohol licensing, applications for betting and gaming premises, and taxi licences.

Why is there a whole section in the Code on this subject?

Decisions on quasi-judicial or regulatory matters, such as the types outlined above, can often have a significant impact on the applicant and other members of the public and can often be controversial. There are formal legal routes beyond the Council’s own appeal process to challenge a decision made on a quasi-judicial or regulatory matter. This means that the decisions, and the conduct of those who make them, may be subject to intense scrutiny by the Court, applicants, objectors and the press.

A failure to observe the terms of the Code, or any perception that decisions have not been made fairly and on the application’s own individual merits, could result in a challenge against the Council’s decision. Such a challenge could have significant cost implications, as well as having an adverse effect on public confidence in the Council and on the reputations of the individual councillors involved in the decision-making. It should be noted that even if any such a challenge is ultimately unsuccessful, it is likely that the Council will still incur costs.

What does the Code require?

In order to reduce the risk of the decision being challenged, councillors are obliged to make quasi-judicial or regulatory decisions objectively and with an open mind. Decisions must be based solely on the merits of the individual case and in accordance with the law and the Council’s policies and procedures. Importantly, councillors must not make decisions based on their own private interests or the interests of any friends, family or associates.

The Code lists what councillors must and must not do when making quasi-judicial and regulatory decisions. Councillors should always bear in mind, and adhere to, the Key Principles set out at Section 2 of the Code and, in particular the principles of Integrity, Objectivity, and Openness, when taking decisions on quasi-judicial or regulatory matters.

Councillors must:

• Act fairly and be seen to act fairly throughout the entire application process. This includes when interacting with any parties involved.
• Declare any financial or non-financial interest (including the interests of any friends, family and close associates). If a councillor has declared an interest, they are not allowed to take part in the discussion or decision-making and must leave the meeting until the matter has been determined.
• Take account of all the material and relevant facts, evidence, opinions and policies and any professional advice given by council employees, before making a decision on the merits of the application at the meeting where it is to be determined.
• Be able to give clear and adequate reasons for their decisions.

Councillors must not:

• Pre-judge or demonstrate bias or be seen to pre-judge or demonstrate bias. They should not reach a conclusion on an application until all available information is to hand and has been considered properly by them at the meeting where the application is to be considered.
• Indicate or imply support for, or opposition to an application, or indicate their voting intention before the meeting at which the application is to be considered. This includes not attempting to influence council employees to make a particular recommendation, or trying to persuade other councillors to take a certain decision.
• Consider irrelevant and inappropriate matters, such as what may be reported by the press, or what might be popular with voters.

It is perfectly legitimate for councillors to engage with applicants, objectors and other interested parties before making decisions. They must, however, make it clear to those who may be seeking to influence them that they will not make any decision on any particular application until all information is available and has been duly considered at the relevant meeting.

While councillors are entitled to hold a preliminary view on a matter in advance of the meeting at which the decision will be taken, they must keep an open mind. They must be prepared to consider, at the meeting, the merits of all views and representations made about the application to be considered before making their decision.  

There may be times where a councillor either has been involved in organising support for or opposition to an application, or wishes to do so. In those circumstances the councillor must declare an interest  and they cannot take part in the decision-making. Section 7 of the Code also outlines what councillors should and should not do when they are representing individuals or groups who are parties to, or oppose, an application.