In Broadview Energy Developments Limited v Secretary of State for Communities and Local Government  EWHC 1743, the Court has clarified the relationship between Parliamentary lobbying and ministerial decision-making. Lobbying in its formal and informal guises is part of the UK's Parliamentary democracy and it is not for the Court to rule it unlawful. If a government representative takes proper account of the relevant rules and propriety guidelines when making a decision, including any rules specific to the subject matter concerned, then the existence of lobbying will not render that decision unlawful, particularly where it is not a key factor in the decision.
1. Key points
- Lobbying by MPs, including informal lobbying in person at Westminster, is part of Parliamentary democracy and does not of itself render a ministerial decision unlawful.
- A decision about which an MP has been lobbied will therefore still be lawful provided that other relevant guidelines as to propriety and general standards of fairness are complied with, including any which relate specifically to the subject matter in question. In order to prove that a lobbied decision was unlawful, a claimant is required to prove unfairness, bias or a material breach of relevant propriety standards. There can be no such bias or unfairness if the Minister does not place weight on the lobbying in making his decision and complies with propriety standards.
This case related to the refusal of planning permission for a wind farm. The local authority had initially refused planning permission in 2011, but this was overturned on appeal after a public inquiry. The appeal decision was then successfully judicially reviewed by the local authority and a further public inquiry was held. In April 2014 the Planning Inspector recommended that permission be granted. His view was that the benefits of the renewable energy that the proposed wind farm would generate would not be significantly and demonstrably outweighed by the adverse impacts on the local landscape and heritage assets, though the matter was finely balanced.
However, the decision was called in by the Secretary of State for his determination, and although he agreed that the matter was finely balanced due to conflicts between national and local planning policy and development plans, he considered that the benefits of the proposed wind farm were outweighed by the likely adverse impacts, in particular to heritage assets and the character of the local area. He therefore refused planning permission.
The local MP had campaigned against onshore wind farms generally and this proposed development in particular, writing letters to the Secretary of State and the Chief Executive of the Planning Inspectorate and discussing the matter in person in Westminster with the Housing Minister, who took the decision on behalf of the Secretary of State. The claimant developer argued that this lobbying meant the decision had been taken in breach of natural justice and was tainted by actual or apparent bias as the MP had been allowed to make her constituents' case in person without the claimant being afforded the same opportunity. The claimant argued that the decision was therefore unlawful, and that in addition the Secretary of State had breached his own guidance by failing to disclose the relevant correspondence to all interested parties.
The claimant's application for judicial review was refused. Mr Justice Cranston noted that lobbying Ministers about constituency issues is part and parcel of an MP's job as a representative of their constituents. As both MPs and Ministers are Parliamentarians, it is part of the UK's Parliamentary democracy that such lobbying would occur through informal meetings in the Palace of Westminster as well as through correspondence, and there could be no objection to such lobbying.
There could also be no objection to the Secretary of State taking the decision, as the House of Lords has made clear that there is "nothing unusual or sinister" in politicians taking planning decisions (R (Alconbury) v Secretary of State for the Environment, Transport and the Regions  UKHL 23;  2 AC 295).
Provided that the Minister made their decision fairly and consistent with the propriety standards set out in the Planning Inquiries Rules, the Ministerial Code and other planning propriety guidance, the fact that the Minister has been lobbied by an MP in respect of that decision does not make it unlawful. To prove unlawfulness, a claimant would have to provide evidence of unfairness, bias or a material breach of planning propriety standards, none of which the claimant had provided in this case.
There are relevant statutory rules which give the Secretary of State discretion in taking into account new evidence in matters where he intends to go against the Planning Inspector's recommendation. If he chooses to take additional representations into account, he is required to inform interested parties of his decision to disagree with the Planning Inspector and allow them to comment on the additional evidence. In this instance, the MP's letters did not raise any new matters and the Secretary of State did not place weight on the representations. His conclusion differed from the Planning Inspector primarily due to placing greater weight on the impact the proposed development would have on heritage assets, not because of the lobbying. The Secretary of State was therefore not obliged to disclose the correspondence or invite representations from the claimant, and as a result had not acted unlawfully or unfairly.
From the position of an "informed observer," i.e. looking at all the circumstances of the decision, there could be no suggestion of apparent bias as such an informed observer would know that an MP would take every opportunity to lobby on behalf of her constituents; that it was unlikely that there would be anything new to say on the subject after two public inquiries; and that the Minister was bound by the Ministerial Code and other propriety guidance. It was clear such propriety guidance had been complied with. Therefore the decision was not unlawful.
This case clarifies the extent to which the age-old tradition of Parliamentary lobbying affects the legitimacy of Ministerial decision-making. MPs will continue to be able to represent the interests of their constituents, but their influence is not unfettered as Ministers must take decisions within the bounds of common law fairness, free from bias and compliant with the Ministerial Code and any other relevant rules of propriety.
In addition, disclosure requirements that take effect if the Minister bases their decision on any written or oral lobbying ensure that interested parties should still have the opportunity to comment on the evidence relied on by a Minister in much the same way as they would if the decision was taken following a public inquiry. Provided all parties are given a reasonable opportunity to adduce evidence and make submissions, the requirements of procedural fairness will be fulfilled.