Public Law for Everyone

The Supreme Court’s judgment in R (The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets [2025] UKSC 11 traverses some important ground concerning the principle of legality and heightened-scrutiny rationality review — and serves as a reminder that a good deal of work remains to be done if doctrine and principle are to sit in appropriate relationship in this area of administrative law.

A few weeks ago, I wrote about Chamberlain J’s judgment in KP v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370, welcoming the subtle and structured approach it adopted to rationality, or Wednesbury, review. The Supreme Court’s recent judgment in R (The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets [2025] UKSC 11 forms an interesting counterpart to KP. While the two cases certainly do not tread identical ground, Spitalfields in some respects demonstrates a more limited willingness to engage with relevant matters in a nuanced way. In particular, it suggests that the Supreme Court’s thinking about the relationship between heightened-scrutiny rationality review and the principle of legality remains inchoate, and that its conception of the latter principle itself perpetuates a commitment to binary distinctions that has for too long inhibited the development of the law in this area.

Background

The case concerned a planning application that was originally considered by a five-member meeting of the Development Committee of the defendant council. At that meeting, the Committee unanimously agreed to defer consideration of the application. When the application was considered at a subsequent meeting, the composition of the Committee had changed such that only three of the original members were present. The council’s standing orders precluded members who were not present at earlier relevant meetings from voting so only the three original members of the Committee voted; they did so by a majority of two to one in favour of the application. The appellant, which objected to the planning application, argued that if all, rather than just the original, members of the Committee had been allowed to vote, the outcome might have been different, and that the standing order preventing new members from voting was unlawful.

Central to the case were three statutory provisions concerning local authorities’ decision-making procedures and their capacity, via standing orders, to regulate those procedures:

• Section 106 of the Local Government Act 1972 (‘LGA’) permits standing orders concerning ‘quorum, proceedings and place of meeting’ to be ‘as respects any committee of a local authority by that authority’.
• Schedule 12, para 42 of the same Act goes on to say that: ‘Subject to the provisions of this Act, a local authority may make standing orders for the regulation of their proceedings and business and may vary or revoke any such orders.’
• Para 39 of the same schedule stipulates as the default rule that ‘all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting thereon at a meeting of the authority’, with the chair having a ‘second or casting vote’ in the event of a tie.

Against that background, the appellant contended that (as Lord Sales, giving the only judgment, put it): ‘The general language used in para 42 of Schedule 12 and section 106 of the LGA 1972 to confer power on a local authority to make standing orders cannot be taken to include the power to achieve such a result. Clearer and more specific language would be required to give a local authority a power to make a standing order which had that effect.’ Lord Sales rejected that argument.

Heightened-scrutiny rationality review

Underpinning Lord Sales’s analysis in this case was a set of connected points concerning voting by councillors. This was characterised as an entitlement as distinct from a right, relying on the judgment of Sedley LJ in R v Flintshire County Council, ex parte Armstrong-Braun [2001] LGR 344, in which he observed that the notion of ‘councillors’ rights’ was inapposite given that if any rights are involved, ‘they are those of the people of the [local authority area]’. As to the source of councillors’ entitlement to vote, Lord Sales noted that no such entitlement is stated by the LGA or any of its predecessors; rather, the entitlement was recognised at common law prior to the enactment of relevant legislation and is now ‘assumed’ and ‘implicit’ in the LGA.

That analysis formed the background to Lord Sales’s remarks about the legal limits on the exercise by local authorities of their discretionary powers under section 102 and schedule 12, para 42 of the LGA to make standing orders, insofar as those powers are used to curtail councillors’ entitlement to vote. Importantly, Lord Sales recognised that any judicial review of the exercise of the standing order-making powers in that way should reflect the significance of the democratic principle thereby threatened:

The importance of the democratic principle that a councillor should be able to represent their constituents and the public in the local authority’s area by voting on matters affecting them means that the ambit of a local authority’s discretion, in terms of what may count as rational or as a proper purpose in this context, is limited to a significant degree so that a form of heightened scrutiny would be appropriate in relation to judicial review of a standing order which limited a councillor’s ability to vote.

Lord Sales noted that heightened-scrutiny, or anxious-scrutiny, rationality review is most commonly associated with contexts in which fundamental rights recognised at common law are at stake. But he acknowledged that ‘[i]n certain contexts other values may be recognised in law as being of similar significance and weight so as to lead to a similar approach to the application of the rationality rule and a corresponding narrowing of the lawful parameters of the relevant discretionary power’, and that such an approach is appropriate when the democratic principle engaged by councillors’ entitlement to vote is implicated by an exercise of discretionary power. This acknowledgment that we have moved beyond binary distinctions, such as between cases that do and do not involve fundamental rights, when it comes to calibrating the appropriate standard of review, is welcome, and aligns with the approach set out in KP.

Having raised the possibility of heightened-scrutiny rationality review, Lord Sales went on to conclude that the relevant limitation on councillors’ entitlement to vote could survive such scrutiny (a point that had, in fact, been conceded), on the basis that the local authority’s approach was a reasonable way of maintaining both the quality of decision-making and public confidence in the process, bearing in mind that only councillors present at all relevant meetings would have the benefit of (among other things) oral representations made by the applicant.

The principle of legality

As well as addressing whether the local authority had lawfully exercised its discretionary power to make standing orders regulating committees’ procedures, Lord Sales considered whether the principle of legality could operate in this context. His starting point in this regard was that, absent the application of that principle, the natural and ordinary meaning of section 106 and para 42 is that ‘the power for a local authority to make standing orders to regulate their “proceedings” or the “proceedings” of their committees includes the power to regulate the circumstances in which a member will be treated as qualified and entitled to vote’. Having staked out that position, he went on to consider whether the ‘general and clear wording of’ the relevant provisions ‘might be read down … by reference to the principle of legality, that where there is an established or fundamental right recognised in law then Parliament, by its use of general language in the particular context, is taken to have legislated in a way which is not intended to abrogate that right’. Lord Sales firmly concluded that such interpretation, based on the principle of legality, could not apply in the present context:

The right of councillors to vote on business of the local authority is not an established right recognised by the common law outside the statutory regime of which it forms part. On the contrary, the general entitlement to vote is assumed by the legislation and is implicit in it … For good reason, the principle of legality has a narrow application and is not applicable as an approach to statutory construction in the absence of a relevant established fundamental right or legal principle … There is no such fundamental right or principle which could justify the application of this approach in the present case. As pointed out above, whilst the democratic principle which underlies the LGA 1972 is important, it is already accommodated by the scheme of that Act on a straightforward reading of the relevant provisions and by the relevant principles of public law. It cannot justify the radical interpretive surgery proposed by [counsel for the appellant].

This prompts two comments.

Source of rights

The relationship between Lord Sales’s view that councillors’ entitlement to vote ‘is not an established right recognised by the common law outside the statutory regime of which it forms part’ is somewhat elliptical. As noted above, elsewhere in his judgment, Lord Sales acknowledged that such an entitlement ‘was a feature of the common law of corporations’ prior to the enactment of the LGA’s original predecessor. In any event, Lord Sales’s focus on whether the relevant entitlement exists independently of the legislation in question raises a deeper question about the source or sources of rights capable of triggering the application of the principle of legality. In attempting to justify his position, he prayed in aid the Supreme Court’s decision in Moohan v Lord Advocate [2014] UKSC 67, in which, with the possible exception of Lord Kerr, the Justices deprecated the notion of a common law right to vote in elections. Lady Hale, for instance, said:

It would be wonderful if the common law had recognised a right of universal suffrage. But, as Lord Hodge has pointed out, it has never done so. The borough franchise depended upon royal charter. The “40 shilling freehold” county franchise appears to have been the creation of Parliament. Every subsequent expansion of the franchise, from the great Reform Act of 1832 onwards, has been the creation of Parliament.

As I pointed out in a post on Moohan, the (perhaps surprisingly) conservative position adopted by Lady Hale in Moohan is in tension with other Supreme Court jurisprudence on the nature of common law constitutional rights and their relationship with statutory rights, including, perhaps most notably, Lord Reed’s judgment in Osborn v Parole Board [2013] UKSC 61. In that case, Lord Reed articulated a dynamic, and potentially bidirectional, relationship between common law rights and those protected by statute. If such a relationship is possible, it is hard to see why a right that has its origin in statute might be thereby be prevented from coming to occupy such a fundamental position as to be acknowledged at common law as well, and thus capable of shaping the interpretation of legislation via the principle of legality. This is not to suggest that Lord Sales was necessarily wrong to conclude that the entitlement of councillors to vote enjoys such fundamentality, but to have done so on the (in any event empirically questionable) basis of a distinction between common law and statutory sources of the entitlement is regrettable, not least for its inconsistency with the more nuanced picture painted by cases like Osborn.

All or nothing?

Lord Sales appears to presuppose that something either is or is not sufficiently normatively important to trigger the principle of legality. Thus we discover that the entitlement of councillors to vote is important enough to trigger heightened-scrutiny rationality review but not important enough to trigger the application of the principle of legality. On one level, this makes sense, albeit that the relationship implied by this conclusion between heightened-scrutiny review and the principle of legality is one that is under-explored. It makes sense because whereas heightened-scrutiny leaves open the possibility of limiting the relevant right or principle provided the limitation is judged to be a reasonable means of securing a lawful statutory purpose, the principle of legality may deny the decision-maker any authority to interfere with the relevant right or value absent sufficiently clear statutory language granting such authority. (Whether the principle of legality actually has that effect turns upon exactly how the relevant provision ends up being construed. It is, for instance, possible, for a statutory limit to be read in that, rather than precluding any interference with the relevant right or principle, precludes only such interference as cannot be justified. Such an approach was controversially adopted by the Supreme Court — in effect applying the principle of legality to the royal prerogative — in the Miller II case.)

While, however, it might make sense to distinguish between matters that are normatively important enough to trigger heightened-scrutiny rationality review and those that trigger the potentially more far-reaching consequences inherent in the principle of legality, the drawing of a binary distinction between those two categories is in tension with the more nuanced approach that applies to questions of normative importance as they pertain within the field of heightened-scrutiny review. In that context, as noted in an earlier post, KP acknowledges that the questions that arise are not binary, but ones of degree, the normative importance of the value that is in play shaping the extent of the decision-maker’s latitude and the corresponding rigour of judicial oversight.

It is difficult to see why a similar approach should not apply to the principle of legality. However, at least as presented in the Supreme Court’s judgment in Spitalfields, that principle appears to be conceived of in all-or-nothing, binary terms in two related senses. First, either a given right or principle is or is not important enough to trigger it. And, second, once triggered, the principle is monolithic, in the sense that we move from a position of applying no relevant interpretive presumption in respect of the relevant value to applying a very strong presumption in respect of it. Both of these points are clear from Lord Sales’s judgment: the entitlement of councillors to vote, rather than being weighed in terms of its normative importance, was treated as incapable, rather than capable, of triggering the principle of legality; meanwhile, Lord Sales’s treatment of that principle itself — in common, it is acknowledged, with other authorities — implicitly treated it as a monolithic one that, once applicable, facilitates ‘radical interpretive surgery’. That approach to the principle of legality seems both artificial and unnecessary. The appropriate question, surely, is not whether a given right or principle is important enough to trigger an interpretive presumption of a single, preordained strength, but what degree of interpretive presumption, if any, should apply in the light of the normative importance of the value that is in play. The courts already consider themselves capable of adopting a comparably gradated approach in relation to heightened-scrutiny review, and there is no good reason why an equivalent approach could, and should, not apply in respect of the principle of legality.

What was welcome about the judgment in KP was the court’s willingness to step away from the sort of binary distinctions that have beset this area of administrative law for too long. Spitalfields is a reminder that work remains to be done in this context — both as regards the relationship between heightened-scrutiny review and the principle of legality as well as within the principle of legality itself. This is not an argument in favour of emptying administrative law of doctrinal content in favour of an instinctive, free-wheeling approach. Far from it. There is, however, much that still needs to be done when it comes to configuring the relationship between doctrine and principle in way that does justice to each. A good starting-point would be to acknowledge that a common set of normative considerations animate both heightened-scrutiny review and the interpretive principle of legality, and that their doctrinal configuration, both individually and collectively, needs to grapple with the subtle questions of normative ordering that inevitably arise in this context, rather than seeking refuge in inapposite categorial distinctions.