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NEWCASTLE CITY COUNCIL WAS PAID TO HIRE THEM while money on flood defenses cut by one third in 2010

BAD NEWS FOR CYCLISTS AS WELL AS MOTORISTS IN NEWCASTLE AND OTHER TOWNS & CITIES IN UK

 Do you think the Local Government Ombudsman was biased in favour of the State against the Citizen and concealing the truth? London Lawyers, Bindmans, said “No”.

This is my reply.

(I waive privilege and confidentiality. My instructions to Bindmans and their Advice are now at the end of this post and, at the very end, a quote from Lord Justice Denning, renowned advocate of equity and fair play signally missing from everyone)

Introduction

I invited you to show how lawyers for the LGO would answer the paper I gave you. I can scarcely complain when you do so. However as in every court in the land when there is a dispute, while the facts may be the same, the interpretation of them can be widely different.

This one, as I hope you will see, has all the characteristics of an Agatha Christie detective story, with me in the role of Hercule Poirot and you, forgive me saying this, police inspector Japp.

It is a murder mystery but what has been murdered here is the Truth.
As in all good murder stories to see the murderer you have to look for the motive, the evidence and the opportunity. And as in all good murder stories the person whom you least suspect, the really guilty party looks, on the face of it, not to be in the frame at all.

“The factor outside the decision-making process”

I will however depart from Agatha Christie and name the really guilty party at the outset. It is SUSTRANS, the national cycling charity, in reality just a lobby for the cyclist and an extremely powerful and well-funded one. Over the years, it has received about £100m of public money directly and indirectly and charged by successive governments with the task of planning in conjunction with local authorities the transport plans for the UK, themselves funded by the Government to buy in their services; this inevitably loading the plans in favour of the cyclist and against all other road users.

 

Google SUSTRANS and read their remit. “We have a vision: By 2020 we want 4 out of 5 local journeys to be made by bike, foot or public transport. That’s double the current figure. It’s a big challenge, but with your help we know we can do it.”

 

It is more of a mission statement than a vision thing, to be pursued if you look at their website with truly missionary zeal and purpose.

 

In an undated publication Delivering Cycling Improvements in Newcastle – a ten year strategy 2011-22, Newcastle City Council asserted “The overarching aim is to develop a cycling culture where 20% of all trips under five miles are undertaken by cycle by 2021.” It went on to say “This will be achieved by drawing up a list of ‘join up’ routes that are at present partially or completely isolated.” This is the same strategy presented a different way. It will be interesting to discover its source.

 

In SUSTRANS Annual Review 2013-2014 they say “We think a street should be designed for residents rather than those driving through, with slower speeds and slower moving traffic, so people are more inclined to walk and cycle for their journeys, some or all of the way.”

 

 DOWNSIDE FOR CYCLISTS READ ON!

Was any of this represented in the consultation process for Gosforth High Street? Or was this, along with a false choice, a deliberately hidden agenda to secure the acceptance of their joined-up cycle lanes? The absence of a legal challenge to the consultation process, should not free Ms Burns, an Assistant Local Government Ombudsman from considering this.

What I fear you have totally failed to take account of – but of the essence – is that the documents I left you with must have been drafted in Bristol not in Newcastle. The finger prints of SUSTRANS are all over them. Look at the grand design. Look at the maps. Look at the figures. Look at some of the statements. Look at the projections.

They will have seen Gosforth High Street and the four-way junction adjoining Salters Road car park as lines on a map through which simplistically to drive narrow 1.5m joined up cycle lanes – their vision.

They will have not seen or cared much about those earning their living there and those enjoying the amenities offered there. They may have spotted Trinity Church, but they would not know that many of the 78 organisations in Newcastle use it as a hub for communal activities in the evenings. They may have spotted the large car park above the shopping precinct above Sainsbury but did they realised that it has to close at 9pm every evening along with the shopping precinct itself? They will have seen the residential streets alongside the High Street but will they have known that the houses have no garages and on both sides they are lined nose to tail with cars, one in five of which is to mutate into a bicycle in the next five years? Will they have known or even cared about the absence of car parking spaces if half of Salters Road car park is demolished? Will they have appreciated that there are no easily accessible alternative car parking spaces, hugely relevant to older people with disabilities and to women on their own.

Will they have anticipated the arrival on the High Street of a very large new Gym for those seeking better and safer ways to keep fit and combat obesity than cycling, and more healthily too? Many of the 6,000 people they are targeting will come from all over Newcastle, many by car, very few by bicycle, and quite a number taking advantage of the very late opening hours.

Will they have known the true causes of congestion on the High Street, not really to be ameliorated by a throng of new cyclists in rush hour, London style, weaving in and out of the traffic, some racing home or to work, some ignoring red lights and green men, a few riding on the pavement. But then it is their objective to slow traffic down, isn’t it?

Did they see the large open spaces of the Town Moor with its very narrow pathways that attract a few cyclists today, but where the dramatic increase in their number they dream off will spell danger for the walkers, joggers and mums with prams who use it now?

And will they really feel NE weather on cold, wet, windy, wintry days for four months in the year? Will they recognise the significance of the temperature being usually 5 degrees colder than Bristol? Will they really understand that the weather explains why so few people, other than staff and students of the city’s two hospitals and universities living nearby in Jesmond, use cycles for their everyday activities, why Newcastle is not like Amsterdam, Copenhagen, Bremen, and certainly in no way like London?

That, of course, is the trouble with planners, they operate on the drawing boards of their minds not in the real world with real people populating it, and they don’t allow for human fallibility, not least their own. Wishful thinkers blame everyone but themselves when their plans turn to dust.

If you want to see the downside of this, look at “Britain’s first cycling city” Bristol itself, where the influence of SUSTRANS unsurprisingly can most easily be seen. Now at a cost of £2.3m a 20 mph hour restriction has been imposed on all roads other than 40 mph 50 mph and dual carriage ways – sometimes it is very difficult to drive as slow as 20 mph – but, more to the point, there has been an increase in accidents to pedal cyclists both in number and rate, up 39% from 2000 to 2014 and up 63% from 1994 to 2014, stats here from the Department of Transport. (It is not without interest that the number of injuries to cyclists in Great Britain as a whole from 1994 to 2014 has gone down from 24,995 to 21,287 a drop of 14%)

Cyclists have been provided with 1.5m or 2m cycle lanes, not all continuous and not separate from heavy traffic. Given that cyclists, motorists and pedestrians can all have unguarded moments, it is not at all surprising that despite best endeavours there is an increase in injuries to cyclists. And on top of that SUSTRANS encourages this new generation of cyclists to drive in very close proximity to slow moving diesel-engine buses, lorries, vans and cars – not just VWs – emitting toxic carcinogenic fumes, this to improve their health.

This is a scam of gigantic proportions. Kids’ Company is Tiddlywinks compared to the game of Monopoly that is being played out here. If SUSTRANS had been concentrating on recreational cycling building a national network of wide, continuous and separate lanes in the countryside, or even in large urban open spaces and on disused railway lines in towns and cities, that would have been entirely desirable and worthy of universal praise.

That was not their entire motivation. They saw, and they persuaded the Department of Transport to see, the cycle replacing the motor car in large numbers in the city. In their cycling-oriented minds they saw this as the best way to combat carbon emissions and save the planet. But the future does not lie in the cycle. That is an activity for those young in body and mind, not for an aging population. And to combat obesity there are many other much safer ways, not least consuming less sugar. The future lies with the electric car with and without driver. I for my part can envisage a time when only those cars will be allowed in town and city centres.

There is, incidentally, a huge piece of personal irony for me here. For my first year at the Bar in Manchester my pupil master was CN Glidewell. He rejoiced in owning a superbly engineered “Bristol” motor car. I had the great learning experience of being his passenger on many of his court appearances. Today, SUSTRANS in Bristol make the motor car their number one enemy.

What is even worse here is that the Health & Safety Executive is totally precluded by Statute from monitoring their work and the Royal Society of Prevention of Accidents is denied the funds to have an engineering department. The result is that there is no-one to examine health and safety risk associated with their work, the most notable the dragon’s teeth or tombstones delineating cycle lanes but a death trap for any cyclist catching his wheel on one of them and toppling in front of a vehicle no more than a metre away.

I have to repeat, you have failed totally to understand and appreciate the implications of all of this.

Now I turn to your document. I do not propose to go through it paragraph by legal paragraph. I just want to address one single word BIAS around which everything turns. The authorities I have quoted suggest that even the suspicion of bias or its likelihood should be matters of serious concern not least for Dr. Jane Martin, the Ombudsman herself. You write “to establish bias some factor outside the decision-making process itself is required to give rise to a real possibility of bias.” Here it is.

If the LGO (I use the word collectively) was biased it was not an Ombudsman. End of story.

So I shall look at motive, evidence and opportunity in turn, and provide you with what you are looking for, but say that it isn’t there.

Motive

I understand that the LGO has over 11,000 cases a year to handle. There is a predisposition and it is enshrined in its methodology – I do not call it bias – to be uncritical of local authorities if their officials are doing their job. It is not their remit to judge whether the job is being done well or badly. There will be an even greater predisposition to be uncritical of them if they are implementing national policy. I do not label that bias either. But if there is a real danger of opening up a can of worms as, in this instance, there most certainly is, if a lobby <SUSTRANS> has been allowed to become an agent of the State, if power has been abused with rulings of the Supreme Court on Consultation ignored, if jobs and reputations may be on the line, if many spending decisions that do not chime with austerity cuts <and flood protection spend>  may be called into serious question, if with supreme irony the very real risks to the health & safety to cyclists have actually been side-lined by the very people who should be most concerned, SUSTRANS, then there will be very substantial reason to turn a blind eye to fault and malpractice. There is no lack of motive here. The first part of this narrative is all about that.

The Evidence

I am not short of it. There are, however, two substantial pieces of it both of which I have flagged up.

The first is that Ms Burns’ final decision is word for word the same as her draft decision. You say that “there is nothing in the evidence” of predetermination. There is this. Although she said she would take account of comments on the draft, this undertaking was totally without meaning and substance. I leave you to revisit my paper here to see what she took absolutely no account of, and to see absolutely no need to check out. I again quote Lord Hewart, the Lord Chief Justice of England and Wales “it is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done”. Your arguments about fair hearing and the right to a fair trial are, in my view, totally perverse, the sort of arguments Galileo was up against. Yes, lawyers for the LGO might well use them.

The second, and in some ways the most important when it comes to examining the consultation process of the local authority in the light of Supreme Court rulings was the relevance or otherwise of cycling numbers. She asks for right documents. She poses the right questions. She totally ignores what she finds. Galileo!

 

I repeat here what is set out in my paper. “For Ms.Burns to say, as she said, that there was no evidence that cycling figures were the motivation for the traffic scheme is an indictment of her incompetence, her lack of integrity and her bias. And three of her colleagues went along with this. <p88-89> and please note items 6, 7, and 8 of Ms Burns’ letter to the Newcastle City Council on 3 March 2015. <p48>.”
I quote Maya Angelou here “We are only as blind as we want to be.” I say this of the LGO and I say this to you. I will recite the detail of the above to you again if you need me to.

The Opportunity

Relying on “the usual procedures” Dr. Jane Martin and four of her Assistant Ombudsmen hide behind the skirts of Ms Kim Burns. I shall reserve my comment on this pending the reply you receive from the LGO on what the “usual procedures” amount to. For the moment I will simply observe that the words remind me of the deadly euphemism in Verdi’s opera Tosca, when Scarpia tells his deputy Spoletta to arrange a mock execution of Cavardossi, and instructs him with these words “as we did with Count Palmieri.” In other words, “the usual procedure here please.”

Natural justice goes out of the window. Again I do not repeat here the legal imperatives for Dr. Martin herself that I set out in my original paper. By the way, the bias here is to try to protect the jobs of colleagues and the integrity of the system. Whether that comes within your descriptor of what is required for bias I wouldn’t know.

Conclusion

I hope I do not need to write further by way of encouragement to you to look again at your draft. If you choose to leave it as it stands, I will do as I promised my wife Ros I would do, and stop wasting my time. I will put the whole into the public domain waiving for my part any legal privilege I might have in relation to our communication. The world can make of it what it wishes. That is my policy with everything that I write. When I left the Bar in Manchester many years ago I took away with me just two thoughts, first the importance of keeping everything in writing. Email, of course, enormously helps. The second thought was to keep as far away as possible from the Law and lawyers. Best I heed that too.

LONDON LAWYERS STILL SAY THERE IS NO CASE. SO OVER TO YOU.

THIS IS MY LAST WORD – OVER TO YOU NOW

ADDENDUM

You will able to understand fully the above if I waive the confidentiality of a privileged dialogue with my solicitors, Bindmans. I have advised them that in view of the importance of the issues that I raise and differing views on their legal significance, for the sake of historical record and for the benefit of students of Law and politics, I am copying below my initial instruction to them and their Advice.

Essentially I sent them a dossier of over 100 pages in length along with documents issued by the Newcastle City Council. I attach below the substance of the dossier omitting the evidence that was largely in the form of letters and emails. I asked them to advise me whether I had a case for judicial review against the Local Government Ombudsman and to assess its strength. I also instructed them to prepare a letter to be used for pre-action protocol procedures.

Bindmans send me their draft Advice indicating that they felt that I had no case and consequently could not draft the pre-action protocol letter. I then sent them the Response that is above. Much good did it do.

History repeated itself. Ms Burns, the Assistant Local Government Ombudsman, sent me her draft adverse reply to my complaint and, after I had commented on it, she stayed word for word with her draft in her final response. The same thing happened with Bindmans. Despite my response, their final Advice was word for word the same as their draft Advice.

_________________________________________________________________

This is what I asked them to advise upon, and now OVER TO YOU with my draft application for them to consider and their reply:

MY DRAFT/ APPLICATION FOR JUDICIAL REVIEW

A THE APPLICATION
To quash the decision of Mr. Connolly, the Assistant Local Government Ombudsman, of 5 and 12 October 2015 Ref.14 011 491 that upheld the decision of Ms. Kim Burns, Assistant Local Government Ombudsman previously endorsed by Mr. Pollard and Mr. Ellis, two other Assistant Local Government Ombudsmen.

This application specifically does not challenge the policy of Newcastle Council in relation to its plans for traffic on Gosforth High Street. It challenges the conduct of the LGO’s handling of the complaints against the Newcastle City Council’s formulation and implementation of its policy in the context of its own protocol and the rules of natural justice.

In particular Dr. Jane Martin, the Local Government Ombudsman, should not have, with the complicity of her staff, disowned responsibility for those decisions. She should have seen and signed off the decisions following the allegation that Ms Burns, Mr. Pollard and Mr. Ellis and Mr. Connolly were biased. Also Ms Burns and her colleagues should have visited Newcastle and Gosforth High Street and not treated the complaints they received as a paper-work exercise when there was a conflict between facts and forecasts given by the local authority and facts and forecasts given by the complainants.<71>

The Local Government Ombudsman and her staff are individually and collectively
1. In breach of their remit to be “neutral” and were not impartial.
2. Failed to take fully into account facts and forecasts given to them.
3. Did not act fairly.
4. Were in breach of the rules of Natural Justice.
5. Were In breach of Article 6(1) of the European Convention on Human Rights.

B THE LOCAL GOVERNMENT OMBUDSMAN’S REMIT

Quality and Service Standards

The LGO has seven quality and service standards

• Our service is easy to access, we take full account of what people tell us and
treat them with courtesy and respect
• We deal with each case promptly, from first contact to final decision
• The remedies we recommend are proportionate and appropriate
• We exercise our discretion fairly and consistently and are transparent about the process we follow
• Our investigations and assessments are impartial and we make clear, evidence based decisions
• Our record keeping is accurate and we ensure that the data we hold is kept
secure and confidential
• We use the outcomes of complaints to promote wider service improvement and
learning
Performance against these standards is regularly reported to the Commission. Details can be found in previous meeting papers.
Our mission and objectives
Our mission
Remedy injustice – improve local public services
Our strategic objectives
We have four strategic objectives.
1. We provide an excellent service that is easy to find and use
2. We deliver effective redress through impartial, rigorous and proportionate investigations
3. We use what we learn from complaints to improve local public services
4. We are accountable to the public and use public money efficiently and effectively

Dr. Jane Martin
“As an impartial ombudsman service it is essential that people can trust the independence of our investigations. Our conflict of interest policy ensures we remain impartial by avoiding any conflicts of interest from arising during the course of dealing with a complaint.”

About us: Key facts about the Ombudsman
• We make our decisions independently of all government departments, bodies we investigate and politicians.
• We examine complaints without taking sides. We are not consumer champions.
• The Ombudsman is appointed by Her Majesty the Queen.
• We have the same powers as the High Court to obtain information and documents.
• Our decisions are final and cannot be appealed. However, you can challenge them in the High Court if you think our reasoning has a legal flaw.
• We do not have to investigate every complaint received, even if we have the power to do so. For example, we may decide not to investigate if we think the problem you mention has not affected you significantly.
• Our investigations are private.
• Our findings are published, but people are not identified in the published information.
• We are committed to providing a fair service and spending public money effectively.
• We do not charge for using our service.
• When we find that a body we have investigated has done something wrong, we may recommend how it should put it right. Although we cannot make bodies do what we recommend, they are almost always willing to act on what we say.

C NARRATIVE

1. Newcastle on Tyne is a small, compact city within a surrounding conurbation. To the South it is bounded by the River Tyne and there is the city centre. To the East, there is the residential area of Jesmond, close to 2 major hospitals and 2 Universities. Cyclists, insofar as there are any – national cycling to work stats say 1,781 in 2001 rising to 3223 in 2011 for the whole of Newcastle – are more there than anywhere else among students and young professionals. To the North is Gosforth, a middle class residential area. While some houses have garages, the houses alongside the shopping centre do not and accordingly, especially in the evenings, both sides of narrow streets are lined with cars belonging to the residents, with no spare space for anyone else. Between the City centre, Jesmond and Gosforth is the Town Moor, a large area of grassland where the Freeman are entitled to graze their cows. There are pathways across the Town Moor, not all that wide, that accommodate, walkers, joggers, cyclists and mums with prams. A great increase in cyclists will pose a problem for other users of these pathways unless they are widened. <See Documents>

It could not be more different from London, and the weather is almost invariably five degrees colder, wetter and windier especially in winter. In all these circumstances it is not surprising that you don’t see many people cycle around. To make the “overarching aim” in an aging population for one motorist in five to use a car for ALL journeys under five miles by 2021 is bizarre to degree; In April 2013 the Newcastle City Council published Newcastle Fit for Cycling – Cycle City Ambition bid, “By year 10 we would anticipate approximately 12% cycle mode share for trips under 5 miles.” In an undated publication Delivering Cycling Improvements in Newcastle – a ten year strategy 2011-22, Newcastle City Council asserted “The overarching aim is to develop a cycling culture where 20% of all trips under five miles are undertaken by cycle by 2021.” It went on to say “This will be achieved by drawing up a list of ‘join up’ routes that are at present partially or completely isolated. Research by Sustrans (a National Cycling Charity) has shown that the most successfully spent money has been that on urban cycle paths.” “POLICY 1.4 Reducing motorised traffic – This gives cyclists more safety and is also of benefit to pedestrians and encourages model shift.” This is their hidden agenda.” For Ms.Burns to say, as she said, that there was no evidence that cycling figures were the motivation for the traffic scheme is an indictment of her incompetence, her lack of integrity and her bias. And three of her colleagues went along with this.<p88-89> And please note items 6,7, and 8 of Ms Burns’ letter to the Newcastle City Council on 3 March 2015.<p48>

2. Now let me turn to Gosforth High Street. It is the main arterial road, starting at the main bridge over the Tyne, bypassing the city centre, going North with Jesmond to the East of it and the Town Moor to the West. It then goes through the shopping centre for Gosforth. It is so narrow at this point that when a local trader measured it for me he said that the width of four bus stops was wider than the width of the road. Congestion there is chronic, partly because it is narrow, partly because it is the main arterial road for many bus routes as well as for vans, lorries and cars, partly because there are over 5 “green men” pedestrian crossings, partly because the carpark over the Sainsbury’s shopping centre feeds into it, and partly because it suppports the shopping centre for all the amenities that are there.

3. This includes Trinity Church that has had over £1m spent on it making it a hub for 78 different organisations in the city. Its own car park holds only about a dozen cars. A very large Gym has just opened and it is open until late evening. There is a shopping precinct with a Sainsbury store and this has the one sizeable car park above it but, as access is through the precinct itself, it closes at 9pm along with the shops there. This makes all the more important the Salters Road car park for over a hundred cars at the North end of the shopping area, especially in the evenings. Many organisations have evening meetings in Trinity Church, including the one I used to chair – the Tyneside Decorative & Fine Arts Society, and we are among many people who eat out at the restaurants. The local authority says that Salters Road car park is only partly used in the evenings and, in any event, there are alternative places to park. I submitted to the LGO’s photographs<p.62-64> showing that that the car park is full. Duncan Young, the leading estate agent in the area, can evidence from actual surveys the 70 or so cyclists who use Gosforth High Street and over 2,000 people who visit the High Street in most cases without a bicycle.

4. The Local Authority makes out that the changes to the car park and the four way junction is to remove an accident black spot. That could have been done with a camera. Their agenda, never part of their consultation at all, was their “over-arching aim”, believing maybe that the one thing that stopped people cycling was the absence of cycle lanes.

5. Meanwhile the Council has already constructed cycle lanes 1.5m North of the shopping centre. I show a photo in Linkedin with one cyclist inside the cycle lane, his companion cycling outside it, and a bus coming up behind. I pose the question as to what happens if a third cyclist comes along behind wanting to overtake.

6. More than that, I spend some time in London. Tens of thousands of people find it the cheapest way to get to work with property prices being what they are. The number of people cycling to work has gone up from 77,330 in 2001 to 155,289 in 2011. Super-cycling highways are being provided for them, but these can be only a partial answer. In rush hour they swarm along the roads, many at speed, weaving in and out of heavy traffic, cutting corners, ignoring both red lights and green men, and a few cycling on the pavement too. The Times 27 October 2015 has a headline “City cycling is too risky for me, says police chief.” Another article in the same edition records “Whitehall knew about diesel emissions scam six years ago …. although diesel emissions are known to cause lung cancer and contribute to the premature deaths of tens of thousands of people a year in the UK.” The Times recently reported a 43% increase in serious injuries to cyclists in UK in last ten years. The BBC recently reported 22,988 accidents including 80 deaths for cyclists in London in last 5 years with a £m of being spent on known accident blackspots that accounted for only 391 of them. <p110>

7. If there is any significant increase in cycling, never mind the projections that Suntrans came up with for Newcastle factoring in the growth of cycling in London, so far from reducing congestion it will make matters considerably worse.

8. I made innumerable requests<74,76,104,105,107> that Dr. Jane Martin see and sign off Ms Burns decision. Even though she knew of this request <p104>, this request was denied despite my allegation of bias.

9. I also requested that Ms Burns visit Newcastle to resolve the conflict of fact and forecast between information given to the Council and information I and others were presenting. This again was denied.

D. NATURAL JUSTICE
<as set out in Wikipedia>
1. English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem). While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general “duty to act fairly”.

2. The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will result in a decision being void without the need for any investigation into the likelihood or suspicion of bias. Cases from different jurisdictions currently apply two tests for apparent bias: the “reasonable suspicion of bias” test and the “real likelihood of bias” test. One view that has been taken is that the differences between these two tests are largely semantic and that they operate similarly.

3. The right to a fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests is sufficient to subject the decision to the procedures required by natural justice. In Europe, the right to a fair hearing is guaranteed by Article 6(1) of the European Convention on Human Rights, which is said to complement the common law rather than replace it.

4. A person is barred from deciding any case in which he or she may be, or may fairly be suspected to be, biased. This principle embodies the basic concept of impartiality,[17] and applies to courts of law, tribunals, arbitrators and all those having the duty to act judicially.[18] A public authority has a duty to act judicially whenever it makes decisions that affect people’s rights or interests, and not only when it applies some judicial-type procedure in arriving at decisions.

5. [19]The basis on which impartiality operates is the need to maintain public confidence in the legal system. The erosion of public confidence undermines the nobility of the legal system, and leads to ensuing chaos.[20] The essence of the need for impartiality was observed by Lord Denning, the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968):[21] “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.'”[22]

6. Public confidence as the basis for the rule against bias is also embodied in the often-quoted words of Lord Hewart, the Lord Chief Justice of England and Wales, that “[i]t is not merely of some importance, but of fundamental importance that justice should not only be done, but should manifestly be seen to be done“.[23]

E ERRORS & OMISSIONS IN Ms KIM BURNS, ASSISTANT LGO’S DECISION

1. She states “As I have seen no evidence to suggest Cabinet or the Overview and Scrutiny Committee received inaccurate information about cycling figures when making its decision to approve the scheme and there is no evidence cycling figures were the motivation for the traffic scheme I have no grounds to criticise the Council.” She ignored the “overarching aim” of the Ambitions Bid and the projections in Appendix 9 where Sustrans, the national cycling charity commissioned by the Council factored into them the exponential growth of cycling in London. Although the figures given to me by the Project Manager for the scheme as reason for the scheme – if nothing else consistent with its “overarching aim” and he actually says so in a letter that he sent to Mr. C. Thorpe on 4 December 2014 “we are tasked with growing cycling in the city to a significant proportion of all trips under five miles. On numbers this could easily mean that to be successful we will need to see up to 3,000 cyclists a day using this corridor to comply with 20% of all trips under five miles.” – she is happy to dismiss this and ignore the professional survey conducted by Duncan Young showing that only ab out 70 cyclists a day use the High Street. She also ignores figures in National Cycling to Work Statistics 2001 -2011 and its implications for Newcastle. This does suggest that the Cabinet received inaccurate information and were very much an important part of the motivation

2. In relation to Salters Road Car Park she states “…As I understand it the Council’s parking data was based on the use of cameras rather than relying on paid parking data ….in the event Cabinet received detailed background papers which included an overview of the reduction of spaces in the car park, residents’ concerns about that and the proposals to provide parking elsewhere.” She ignored the photographic evidence I sent her showing that the car park is full in an evening. There is reference to alternative parking on Moor Road North and South <para10.9 of Newcastle City’s response to the LGO> and “parking outside existing properties to the South of the High Street where the residents currently park on the cycle lane.” These options have no merit whatsoever. The City Council says that its survey suggests that only 44% of visitors to Gosforth are car based, 41% on foot, and 66% public transport, cycling and walking. <10.25 Newcastle Council’s Response to the Ombudsman>. These figures cannot be right at all material times. Ms Burns ignored the letter from Duncan Young of 12 June and the details of the 2,142 responses of those travelling to the Gosforth High Street with figures that call them into question. Much more seriously she ignored my reference to the new Gym and to the 78 organisations that use Trinity Church as a city hub. Any survey there in the evening – a pity it was aborted <p31-33> – would totally invalidate the city’s survey. Not many people would go to meetings in Trinity Church on foot on a cold and wet winter’s evening. Nor would they go by bicycle. Most likely by car and by bus and, if by car, they would need a nearby car park. My own particular concern here is the difficulty to be faced by the Tyneside Decorative & Fine Arts Society that I used to chair. It meets in Trinity Church. It has nearly 200 members mostly over 50, often women on their own. (The pages of Newcastle Council’s Response to the LGO are un-numbered. I have discovered that the page with numbers 10.21 to 10.25 was omitted from the documents sent to me, but included in the documents sent to Mr. C. Thorpe. In both cases paragraphs 9.10, 9.11, 9.12, 9.13, 9.15, 10.26.10.27. 10.28 and 10.29 were redacted, apart from “internal correspondence between the Council’s solicitors dealing with the scheme attracts professional legal privilege” that was also omitted.)

3. I have specifically drawn attention to the City’s Protocol to provide “an integrated and evidence based means of partners working together to determine priorities in the city.” She ignores the fact that there would not appear to have been any market research among motorists in the city confirming their willingness to use a bicycle instead of a car for all their journeys under five miles.

4. I have specifically drawn attention to the City’s commitment to “open government” and in Core Value 4 making “transparent decisions.” She ignores the fact that their “overarching aim” in relation to cycles and motorists was not detailed in the consultation process and she finds no fault in the city’s consultation procedures. I pose this question: Paragraph 10.20 of the Council’s Replies to the LGO states “The changes are essential to ensure that the optimum network benefits are realised from the current programme of works to the Great North Road”. Was the whole consultation process here predetermined?

5. I have also specifically drawn attention to Core Value 4’s commitment to “risk management.” She ignores the considerable anxiety being expressed by those who would know best whether the High Street is likely to suffer, namely those actually earning their living there, and accepts without question the assurance from the Council that the High Street will benefit. She ignores the health and safety risk of placing narrow cycle lanes alongside heavy traffic on a main arterial road with cyclists inhaling toxic, carcinogenic diesel fumes from the many buses, lorries and diesel-engine cars proximate to them. She also ignores the health and safety implications of allowing parking on that road in the evenings which the City Council contemplates.

6. She ignored the absence of cost/benefit analysis in relation to the road works at the Junction of Salters Road. In the circumstances there were never going to be any.

7. She ignored the facts on the ground in relation to the complex reasons for the chronic congestion in Gosforth High Street <71> and she declined to accept that dramatically increasing the number of cyclists to about 3,000 cyclists a day especially in rush hour providing only very narrow cycle lanes for them to ride on would add to the congestion not reduce it by virtue of there being fewer cars; and she declined to accept that this would constitute a health & safety risk for the cyclists.

8. One of the most reprehensible aspects of Ms Burns decision, endorsed by all of her colleagues was her total failure to resolve the conflict between the facts on the ground as described by the Newcastle Council and evidence contradicting them, notably the number of cyclists around, the reasons for chronic congestion on the High Street, the way people get to the High Street, the availability of parking spaces in Salters Road car park in the evenings and alternative car parking spaces if the number of spaces in the car park is halved. A visit to Newcastle, not just a paperwork exercise, could have resolved that conflict one way or another. Her failure to do so is reprehensible.

9. Bias here is not just an inclination. There is no neutrality here. She has deliberately loaded the scales against the citizen. The wording of her final decision is the same as the draft. She clearly paid no attention to the contents of my response to the draft. <66-88>This is the fourth time in my life I have had to flag up in the system of government a “lousy, stinking hypocritical charade.” That is what this is.

F COLLUSION IN DECISIONS OF ASSISTANT LGOs, Mr. Pollard, Mr. Ellis & Mr. Connolly
Mr. Pollard, Mr. Ellis and Mr. Connolly are individually and collectively complicit in the above. They are given a huge responsibility. It would be interesting to see their credentials, their experience and their training, whether, for instance, it took in a visit to the offices of the Ombudsman in Copenhagen where the word Ombudsman originated and the Crichel Down scandal that had much to do with the setting up of the Ombudsman in the UK in the first place.
G ABDICATION OF ALL RESPONSIBILITY BY Dr JANE MARTIN, LGOWhile Assistant Local Government Ombudmen are fully entitled to make decisions in the name of the Local Government Ombudsman, that should not free the Local Government Ombudsman herself for owning their decisions especially when they are called into question because of bias.

H ABSENCE OF ACCOUNTABILITY WITHIN THE LGO SYSTEM
In all responsible organisations there should be a system of accountability where the person at the top accepts ultimate responsibility for decisions taken within the organisation especially when drawn to his or her attention. <87>

________________________________________________________________________

This was Bindmans’ Advice:

ADVICE ON A POTENTIAL JUDICIAL REVIEW CLAIM AGAINST THE LOCAL GOVERNMENT OMBUDSMAN

NOTE OF ADVICE

INTRODUCTION
1. You have instructed Bindmans LLP (“Bindmans”) to advise on the merits of a potential claim for judicial review against the Local Government Ombudsman (“LGO”). The background to that proposed claim is set out below.
2. During a teleconference on 27 November 2015, we advised that we did not consider there to be any arguable grounds for your proposed claim. You subsequently instructed us to set out that advice in writing. That is the purpose of this note.<1> Our primary view remains the same for the reasons explained below.

BACKGROUND
3. The background to the proposed claim is set out in considerable detail in a document drafted by you entitled ‘5th DRAFT/ APPLICATION FOR JUDICIAL REVIEW’ (the “Share Draft”). For the purposes of this advice, it is sufficient to note the following pertinent facts.
(a) In January 2015, you submitted a complaint to the LGO (the “Complaint”) in relation to new traffic management plans announced by Newcastle City Council (the “Council”). The essence of the Complaint was set out in the LGO’s formal acknowledgment dated 3 March 2015, according to which you alleged that:
‘the Council, in deciding to pursue a traffic management plan for Gosforth High Street (i) predetermined the proposal, (ii) based its decision on misleading figures about cycle use, (iii) failed to take into account the majority of respondents to the consultation did not support the scheme and
(iv) failed to properly consider the implications of the proposal’.
(b) Both you and the Council subsequently made written submissions to the LGO.
(c) The LGO provided you with a draft decision on 18 June 2015.
(d) You submitted comments on that draft to the LGO on 2 July 2015.
(e) (e) There followed a series of correspondence between you and the LGO between 20 July and 12 August 2015.

(f) The LGO issued its final decision on 17 August 2015, which was upheld following a review on 5 October 2015 (the “LGO Decision”).
4. As recorded in our Letter of Engagement dated 19 November 2015, you instructed us to advise on the merits of your potential claim for judicial review of the LGO Decision. Importantly, and as you rightly note in the Share Draft,<2> your proposed claim ‘does not challenge the policy of [the Council] in relation to its plans for traffic on Gosforth High Street’.<3> Such a challenge would be out of time given the short time limits for bringing judicial review proceedings and, in the absence of any proper justification for delay, would be rejected by the Court for that reason.

OUR ASSESSMENT OF THE MERITS
5. In summary, our view is that there are no properly arguable grounds for judicial review – whether based on domestic public law or human rights principles – that would give your proposed claim any prospect of success. We set out the reasons for this view in detail below. Before doing so, however, it is helpful to make the following preliminary observations.
(a) First, judicial review is a two-stage process. Before the merits of a claimant’s case are given full consideration by the Court, and before the defendant is required to make detailed submissions, the Court’s permission for the claim to proceed is required.<4> A claim for judicial review must be sufficiently meritorious to justify the grant of permission. The test for this hurdle, which arises solely from case law, is one of ‘arguability’<5>For the reasons given below, we do not consider that your case against the LGO passes that threshold.<6>
(b) Secondly, the merits of your case are such that there is a substantial risk that the Court would declare it to be ‘totally without merit’ in accordance with rules 54.12(7) and 23.12 of the CPRs.<7> Were the Court to so declare, you would not be entitled to have the question of permission reconsidered at an oral hearing (ie in open Court).<8>
6. Based on our conversations with you and on the grounds of unlawfulness alleged in the Share Draft, we understand your proposed grounds for judicial review to be as follows.
(a) The LGO did not act impartially and/or was biased. We shall refer to this as the “bias argument”.
(b) The LGO failed to take fully into account facts and forecasts given to them. We shall call this the “irrationality argument”.
(c) The LGO did not act fairly and/or was in breach of the rules of natural justice. We shall refer to these two strands of argument collectively as the “fairness argument”.
(d) The LGO acted in breach of article 6(1) of the European Convention on Human Rights (“ECHR”) – the “article 6 argument”.
We have not identified any additional potential arguments beyond those set out above. We address each of these heads of argument in turn below.

The bias argument <9>

7. Public law recognises three categories of bias: actual, presumed and apparent. An allegation of bias is serious and should only be made on the basis of clear evidence. In short, we see no evidence in the papers beyond assertion and disagreement with the conclusion reached by the LGO that suggests that the LGO was biased (whether actually, presumedly or apparently) in rejecting your complaint against the Council.

8. The most frequently raised category of bias is apparent bias, the test for which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased.<10> In our view, that test is not met here. In particular, the mere fact that, at various stages throughout your lengthy correspondence with the LGO, staff within the LGO office upheld prior decisions of their colleagues would not, in our opinion, lead a ‘fair-minded and informed’ observer (or, therefore, a Judge) to conclude that there was a real possibility that those individuals were biased. To establish bias some factor outside the decision-making process itself is required to give rise to a real possibility of bias. If this were not the case, then every decision of a decision-making body would demonstrate bias against the person to whom the decision was adverse. Accordingly, we consider that the bias argument would be bound to fail.
9. For the sake of completeness, we would add that even if your allegation were to be framed in terms of ‘pre-determination’ (ie that the LGO had unlawfully fettered the exercise of its statutory discretion by reaching a determination on the Complaint before fully considering the issues), we do not consider that the prospects of success would improve. Again, this is because there is nothing in the evidence that you have presented beyond assertion that the LGO pre-determined the Complaint. Nor do we consider that the LGO could be said to have acted irrationally (as to irrationality more broadly, please see below) in rejecting this aspect of the Complaint simply because the Council had funding in place before reaching a final decision on the traffic management proposals. The LGO noted that this was common practice and, in any event, that the proposals were modified in light of responses to the Council’s consultation. This was a rational basis for the conclusion reached by the LGO.

The irrationality argument <11>
10. It is clear that a number of the arguments you raise against the LGO would be classified by the Court as being founded on the public law principles of ‘rationality’ or ‘reasonableness’ (the latter term derives from the well-known concept of ‘Wednesbury unreasonableness’<12>). These include:
(a) the LGO’s refusal to visit Newcastle in order to assess the traffic situation for itself;
(b) the alleged failure to take into account your allegation that the Council’s original policy decision was based on flawed data;
(c) the alleged failure to review photographic evidence submitted by you to the LGO;
(d) the fact that the Council pressed ahead with its traffic management plans despite opposition from members of the public, expressed through consultation responses;<13> and
(e) the allegation that the Council failed properly to consider the implications of its proposals.
11. Before addressing the substance of the irrationality argument, there are three crucial matters to note.
(a) First, the irrationality threshold is a high one. The Courts will traditionally afford public bodies a significant degree of latitude when reviewing the rationality or reasonableness of their decisions. From such deference comes the traditional formulation of Wednesbury unreasonableness, the essence of which is that the courts will only intervene where a decision ‘is so unreasonable that no reasonable authority could have come to it’.<14> More recent case law has refined that arguably tautological language to a test of whether the decision was ‘within the range of reasonable decisions open to a decision maker’.<15> Either way, it is a well-established principle that it is not for the courts to review the merits of the underlying decision (which we address further below).
(b) Secondly, the hurdle that a claimant must clear in any irrationality challenge is even more heightened when challenging ombudsman decisions. One of the reasons for this is that the ombudsman itself is regarded by the Court as an expert entity that acts, in effect, as a first-instance adjudicator (albeit that its powers of review and the available remedies are more limited than those of the Administrative Court). It follows that if the matter is then litigated in Court, it is the rationality of the ombudsman’s decision (in this case, the LGO) – and not that of the original decision-maker (here, the Council)
– that falls to be assessed by reference to the rationality/reasonableness principles. The rationality of the original decision is thus one step further removed than if judicial review of the original decision were sought. The above principles are reflected in the case law:
(i) In the context of maladministration claims, the Court has said that ‘the ombudsman and not the court is the arbiter of what constitutes maladministration’.<16>
(ii) In R v Local Commissioner for Administration, ex p Eastleigh [1988] QB 855 at [867], Lord Donaldson MR described judicial review challenges against ombudsmen as being ‘inherently unlikely to succeed’ bearing in mind ‘the nature of his [ie the ombudsman’s] office and the qualifications of those who hold that office’.
(iii) In R (on the application of Morris) v Parliamentary and Health Service Ombudsman [2014] EWHC 4364 (Admin) – a case in which Jamie Potter of this firm acted for the claimant – Jay J referred to the Ombudsman’s ‘unfettered discretion’ when it came to the exercise of its powers.<17> In that case, the Judge also quoted at length Collins J in R (Jeremiah) v Parliamentary and Health Service Ombudsman [2013] EWHC 1085 (Admin), in which the Judge said this (emphases added):

‘30. The law, as set out by both the Act [ie the Health Service Commissioners Act 1993] and its interpretation in previous decisions, is that the hurdle which has to be surmounted by any claimant seeking to persuade a court that an exercise of discretion by the Ombudsman is unlawful is a very high one indeed. The relevant leading decision is R v Parliamentary Commissioner for Administration ex p Dyer [1994] 1 WLR 621 where Simon Brown LJ, as he then was, giving the judgment of the Divisional Court made it clear that the width of the discretion was, as he put it, made ‘strikingly clear’ by the legislature. That is a reference to the provision which is now in section 3(5) that the Commissioner should act in accordance with his own discretion. He said that it would always be difficult to mount an effective challenge on what may be called the conventional ground of Wednesbury unreasonableness.’

Section 24A(6) of the Local Government Act 1974, which sets out the powers of the LGO, contains wording that is materially identical to that referred to in the above quotation in relation to the Parliamentary and Health Service Ombudsman.
(c) Thirdly, just like the Court when reviewing the decisions of public bodies, it is not for the Ombudsman to review the merits of the original decision-maker’s decision. (And the LGO makes this point repeatedly in the LGO Decision). This is crucial, because a number of the allegations you raise are, in our view, concerned with the underlying rationality of the Council’s original policy decision to introduce traffic management plans (a good example being your allegation that the proposals were based on inaccurate or misleading data). As you know, the time limits for commencing judicial review proceedings are short, and the period for bringing a challenge against the original policy decision has long expired.
12. It is against in this background that the irrationality argument must be assessed.
13. In our view, there is nothing in the LGO Decision – including in relation to the points referred to at paragraphs 10(a) to 10(e) above – that comes close to meeting the high thresholds described above. In particular:
(a) You submitted extensive information regarding the nature of the traffic and the difficulty of parking in the relevant area of Newcastle for consideration by the LGO. It is unclear what further information could have been gained from a site visit. Moreover, the LGO’s discretion over how to conduct its investigation is extremely wide for the reasons explained above, and the Court will also take into account the limited resources of the LGO. We do not consider there is any basis to argue that the LGO’s failure to conduct a site visit would be considered irrational on the principles identified above.
(b) You have alleged that the LGO has failed to take into account your allegation that the Council’s original policy decision was based on flawed data. However, the LGO has expressly addressed this point and reached a conclusion that this allegation is unfounded. Although you may disagree with this conclusion, this is not sufficient basis to raise an irrationality argument and we do not consider that the Court will go beyond the conclusion of the LGO in circumstances where you have had an opportunity to raise your objections and they have been considered and rejected.
(c) You have alleged that the LGO has failed to review photographic evidence submitted by you to the LGO. However, for the reasons we explain below, we do not consider that the mere fact that the LGO did not refer to that evidence means that it was not taken into account, nor, therefore, that this would be a basis for the LGO Decision to be quashed.
(d) The fact that the Council pressed ahead with its traffic management plans despite opposition from members of the public, expressed through consultation responses, is again expressly addressed by the LGO. In our view, the LGO reached precisely the same view a Court would reach in respect of this argument – namely that a consultation is not a referendum and the level of support is just one factor for the decision-maker to take into account. It is quite normal for there to be more than 90% opposition to a proposal, which is then adopted by a local authority and then upheld by the Court.
(e) The allegation that the Council failed properly to consider the implications of its proposals was specifically rasied by you with the LGO and was rejected. Again, we do not consider this is a proper basis to argue that the LGO’s decision was irrational or unreasonable.<14>. We therefore consider that the irrationality argument would be bound to fail.

The fairness argument <18>
15. The term ‘natural justice’ is a common law term that traditionally comprised: (i) the right to be heard; and (ii) the requirement of impartiality and the rule against bias. However, both the courts and leading public law commentaries regard the term to be outdated.<19> As noted in the Share Draft, the fundamental concept that applies is that a public authority (including the LGO) has a duty to act fairly. This forms part of the well-known principle of ‘procedural fairness’, one of the traditional grounds of judicial review (breach of which is commonly referred to as ‘procedural impropriety’ or, in more recent case law, ‘procedural unfairness’). The LGO was, of course, bound by those principles when reaching the LGO Decision.
16. Certain of the arguments you raise in the Share Draft (and to which you have referred in our conversations and email correspondence) would properly be classified as procedural fairness arguments. These include your suggestion that the Council’s original consultation may have been unlawful under the principles laid down by the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947. The obvious response to that complaint (and one which we have not doubt the LGO would advance) is that the proper forum for any such complaint is a claim for judicial review against the Council’s original policy decision, the time limit for which has long expired.
17. A challenge to the LGO on this point would likely need to be framed in terms of irrationality (ie that it was irrational for the LGO to conclude that the original consultation did not constitute maladministration). We consider such an argument to have no merit, both because of the difficulties posed by an irrationality challenge in this case (as to which, see above) and because the principles in Moseley have, since that case, been restrictively interpreted by the courts (see, for example, R (Morris) v Rhondda Cynon Taf CBC [2015] EWHC 1403 (Admin) (another case in which Jamie Potter of Bindmans acted for the claimant). In any event, we agree with the LGO that it is open to the Council to reach a different view to those surveyed,<20> and we consider that to do so does not necessarily render a policy decision unlawful.
18. The fairness argument may also encompass your suggestion that the LGO acted improperly by not taking into account your submissions on its draft decision. However, we consider that this argument is better categorised as falling under the head of irrationality. We do not believe that a Court would quash the LGO Decision on this basis, principally because it would likely conclude that, as an expert in its field, it is a matter for the LGO’s (very wide) discretion (as to which, see above) to deal with submissions from affected parties as it sees fit (including by rejecting them without reasons, if appropriate). The LGO did respond to many of the points you raised and we do not consider the fact it did not expressly deal with all of them demonstrates that it did not take those points into account.
19. While there are no doubt procedural criticisms that can be levelled against most public bodies when handling complaints (and against the LGO in this case), it is our considered view that neither the Share Draft (including your correspondence with the LGO) nor any other information that you have provided to us discloses anything that would lead a Court to conclude that the LGO Decision was procedurally unfair in the public law sense – ie that the unfairness (if any) was so acute so as to render the LGO Decision unlawful. We therefore consider that the fairness argument would be bound to fail.

Article 6 – Right to a fair trial
20. It is not entirely clear to us from the papers how you consider the LGO actions to have been in breach of article 6 ECHR. However, from our analysis of the Share Draft we do not consider that reliance on article 6 would add anything to your proposed claim that would alter our view of the merits as set out above. In particular, even if the LGO in this case could be said to be ‘determining civil rights and obligations’ (which is a prerequisite to engaging the protections afforded by article 6(1) and which is not immediately apparent in this case), we can see nothing on the evidence before us to suggest that the LGO Decision breached article 6. In particular, you were afforded the right to make submissions on your case, to review a draft decision and make further submissions before a final decision was made. This process would fulfil the basic requirements of article 6.
21. We would note for completeness the case of Heather Moor & Edgecomb Ltd v United Kingdom 1550/09 [2011] ECHR 1019, in which the European Court of Human Rights rejected a complaint that, inter alia, an ombudsman’s determination had been reached in breach of article 6 because the ombudsman had not held an oral hearing. While you did not request an oral hearing in respect of the Complaint, we note that you were afforded the opportunity to make representations to the LGO and to respond to the LGO’s draft decision. In our view, a Court would not consider that an oral hearing was required in the present case, nor that the LGO had acted in breach of article 6.

Other matters that you have raised
22. Below we address other matters that you have raised with us in correspondence.
(a) You have suggested <21> that we mention in this note the ‘reason why Sir Thomas Dugdale resigned in the Crichel Down case’, saying that ‘[you] seem to recall that this case provoked the introduction of the Ombudsman in the first place’. We have briefly researched the background to the so-called ‘Crichel Down affair’. Save to the extent that the actions of the public bodies involved could be said to have engaged, among other things, general principles of public law, we do not understand the relevance of this historical case to the present matter.
(b) We also note your comments <22> regarding Department of Transport figures on cycling injuries and on the Royal Society of Prevention of Accidents’ lack of an engineering department and apparent unwillingness to commission outside engineers to investigate risks to health and safety that are brought to their attention. We have considered these points but have concluded that they do not affect the substance of the advice set out above, which concerns a potential challenge to the decision of the LGO rather than any debate regarding the merits of the policy introduced by the Council.
CONCLUSION
23. It follows from the above that we do not consider your case to have any properly arguable grounds for judicial review and would be bound to fail. We do appreciate that these conclusions are frustrating. However, please be assured that they have been reached on the basis of considerable professional experience in the field of public law and human rights, including in judicial review proceedings against an ombudsman.
24. As a non-practising barrister, you will be aware that barristers are prevented by their professional obligations from advancing any contention that they do not consider to be properly arguable<23> As solicitors, we are similarly prevented by the SRA Code of Conduct 2011 from drafting any documents, relating to any proceedings, containing a contention that we do not consider to be properly arguable.<24> We are therefore unable to draft a pre-action protocol on your behalf since, for the reasons given above, we do not consider there to be any properly arguable grounds for judicial review.
25. However, we have appended to this note a template letter that sets out the typical structure for a pre-action letter. This is based on the template at Annex A to the Pre-Action Protocol for Judicial Review, published by the Ministry of Justice.<25>
26. We note that you have stated in correspondence with the LGO that you have received advice from other lawyers (including a QC) to the effect that your claim has merit. While we would respectfully disagree with any such view based on the documents that we have seen, we would naturally be very happy to discuss your case with your other legal advisers, subject to agreeing the costs of doing so.                                                                27. Finally, we note that you have indicated that you may wish to put this advice in the public domain. Whether you choose to do so is a matter for you. However, we should note that if you do so, you would likely be waiving confidentiality and/or legal professional privilege over our communications (and that this advice could therefore come to the attention of the LGO and be used against you in litigation).

1 You have requested that we include in this advice the arguments that would be advanced against you by the LGO. Assessing such arguments is necessarily a part of any advice we give, and the advice set out in this note takes account of the arguments that we consider would be made by the LGO against you.                                                                 2 And also in your email to us at 00.19 on 1 December 2015.
3 Share Draft, p 1.
4 Civil Procedure Rules 1998 (“CPRs”), rule 54.4.
5 See, for example, Auburn, Moffett and Sharland’s Judicial Review Principles and Procedure (Oxford University Press: 2013) at 26.06 et seq.
6 This is first considered on the papers. Subject to our second point below and payment of the appropriate
fee, you would be entitled to seek reconsideration of the question of permission at an oral hearing: CPR, rule 54.12(3).
7 The Court of Appeal has defined this test as meaning simply that the claim would be ‘bound to fail’: R (Grace)
v Secretary of State for the Home Department [2014] EWCA 1091, [2014] 1 WLR 3432.
8 You would be entitled to appeal the refusal of permission to the Court of Appeal, which would consider the question on the papers alone.                                                                  9 We refer to the document that you sent to us by email at 21:13 on 30 November 2015 (the “30 November document”). We note the comments therein in relation to bias, which have been taken into account as part of the analysis contained in this section.
10 Porter v Magill [2001] UKHL 67, [2002] 2 AC 357.                                                           11 We note the comments in the 30 November document in relation to irrationality/unreasonableness, which have been taken into account as part of the analysis contained in this section.
12 After the decision in Associated Provincial Picture Houses v Wednesbury Corp [1948] 1 KB 223, CA.
13 This point is also addressed under the ‘fairness argument’ below.
14 Per Lord Greene MR in Wednesbury at [230].
15 Boddington v British Transport Police [1999] 2 AC 143, HL, per Lord Steyn at [175].    16 R (Doy) v Commissioner for Local Administration [2001] EWHC 361 (Admin) per Morrison J at [16].
17 At [35], referring to R (Mencap) v Parliamentary and Health Service Ombudsman [2011] EWHC 3351 (Admin).    18 We note the comments on procedural fairness and ‘natural justice’ contained within the 30 November document, which have been taken into account in undertaking the analysis in this section. We also note the comments contained therein on legitimate expectation, which have also been taken into account.
19 In Local Government Board v Aldridge [1915] AC 120, HL, Lord Shaw described the term at [138] as a
‘confused and unwarranted transfer into the ethical sphere…vacuous’.
20 LGO Decision, para 10.22 Also in your 1 December email and in a further at 14.01 on the same day, attaching statistics.                                                                                        21 In your email at 07.48 on 1 December 2015.
23 Bar Standards Handbook (2nd Ed), September 2015, Rule C9(2)(b).
24 SRA Code of Conduct, IB(5.7)(a).
25 https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_jrv (accessed on 1 December 2015).

JAMIE POTTER

BEN GASTON

Bindmans LLP

8 December 2015

______________________________________________________________________

MY FINAL COMMENT

I will merely repeat what I have quoted above:

 Lord Denning, the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968):[21] “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased.'”

OVER TO YOU NOW