Legal Viewpoint: Court tests limits on scope for MPs to lobby ministers

A Court of Appeal ruling on a wind farm proposal in South Northamptonshire may not have provided the developers with the result they wanted, |but it does provide a steer on the scope for lobbying ministers making quasi-judicial decisions, including the determination of planning appeals.

The developers challenged junior minister Kris Hopkins’ refusal of permission for the wind farm in 2014. They obtained correspondence from local MP Andrea Leadsom, a consistent opponent of onshore wind farms. Leadsom had also approached Hopkins in the Commons tea room and lobby. The developers were refused an audience with the Department for Communities and Local Government (DCLG) to put their own case.

They made a High Court claim based on the lawfulness of Leadsom’s lobbying, questioning the application of the ministerial code on standards of conduct, the Inquiries Procedure Rules 2000 and DCLG’s 2012 guidance on planning propriety. The judge held that lobbying ministers is part of MPs’ role and found no breach of the rules, natural justice or procedural fairness.

The developers appealed against this ruling. The Court of Appeal focused on paragraph 4 of the DCLG guidance, which says that "privately made representations should not be entertained unless other parties have been given the chance to consider and comment on them".

The court accepted that, although the written correspondence between the MP and the minister may have been a technical breach of paragraph 4, it had raised no new issues or evidence that would give the developers a right of reply under the procedure rules. The same could not be said, it found, for the tea room discussion, as there was no clear evidence of what was said, nor of the minister making clear that he could not listen to what was said. Here the court found a clear breach of paragraph 4, which it said should be applied broadly.

The ruling emphasises that lobbying of ministers responsible for quasi-judicial decisions is not "part and parcel of the representative role of a constituency MP" and that MPs should not be treated any differently from other interested parties. Ministers should therefore refuse to entertain any such discussions. However, this was not enough to uphold the developers’ claim. The passing of almost a year between the tea room discussion and the decision convinced the court that the MP’s lobbying had played no part in the final outcome.

Broadview Energy Developments Ltd v Secretary of State for Communities and Local Government and Others; Date: 22 June 2016; Ref: [2016] EWCA Civ 562

Ian Green is a legal director at DLA Piper LLP

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