Aujla & Ors, R (on the application of) v Slough Borough Council

A local authority has a broad discretion to remove or increase limits on hackney carriage licences under section 37 of the Town Police Clauses Act, as amended. A decision is unlawful for apparent bias only where the relevant circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias. Robust political or personal views do not, without more, establish a closed mind.

An earlier recommendation affected by apparent bias does not necessarily taint a later decision. The later decision remains valid where the decision-maker considers the matter afresh, has substantial additional information, and makes an independent choice. Judicial review may also be refused where the proposed challenge is raised too late, causes prejudice, or would not have affected the outcome.

The claimants were hackney carriage licence holders challenging Slough Borough Council’s resolution to remove the limit on hackney carriage licences. Permission had been granted by Bean J on an allegation that two councillors participated in the Council’s decision of 12 October 2004 despite an alleged conflict of interest.

It was later accepted that those councillors had not participated in the October decision. The claimants sought to amend their claim to allege that the councillors’ participation in an earlier Licensing Committee recommendation on 9 August 2004 tainted the later Council resolution. The amendment was opposed on grounds of delay and prejudice. The central issues were whether the amendment should be permitted, whether the councillors’ earlier participation created apparent bias, and whether any earlier taint carried through to the Council’s later decision.

1. The proposed amendment was refused. The claimants had known the relevant facts since May 2005 but did not notify the defendant until shortly before the hearing. The proposed challenge concerned a decision effectively reached 11 months earlier and would require new evidence. The delay had also allowed a series of administrative decisions to be taken.

2. In any event, the judicial review claim would have failed on the merits. Under section 37 of the Town Police Clauses Act, as amended by section 16 of the Transport Act 1985, the Council had an unfettered discretion to increase the number of licences or remove the limit entirely. The width of that discretion was supported by R v Great Yarmouth Borough Council, ex parte Sawyer [1989] RTR 297 and R v Reading Borough Council, ex parte Johnson [2004] EWHC 765.

3. The applicable apparent-bias test was whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility of bias, following Porter v Magill, Weeks v Magill [2002] 2 AC 357. The evidence did not satisfy that test. Mr Hayat’s experience as a private hire driver 14 years earlier, and Mr Butt’s surrendered licence and brothers’ private hire work in a neighbouring borough, provided no sufficient basis for concluding that either councillor approached the matter with a closed mind. Councillors were entitled to hold robust views.

4. Even assuming that Mr Butt should have withdrawn from the August meeting, the October Council decision was not tainted. The Council had before it competing recommendations, substantial information, and oral and written submissions from the claimants. Applying the approach in R v Secretary of State for the Environment and Another, ex parte Kirkstall Valley Campaign Limited [1996] 3 All ER 304, the later decision was a fresh decision which did not depend upon the earlier recommendation in a sufficiently substantial way.

5. Further, the result would probably have been the same even without Mr Butt’s participation in the August recommendation. It would therefore not have been appropriate to grant judicial review. The claim was dismissed. Costs were awarded to the defendant, with the claimed preparation time reduced from 14 hours to 10 hours.

• High Court (Administrative Court): Permission had been granted by Bean J on the original bias ground. An interim injunction application was refused by Stanley Burnton J. Goldring J refused the proposed amendment and dismissed the judicial review claim.