The Spitalfields Historic Building Trust, R. (on the application of) v London Borough of Tower Hamlets & Anor [2025]
The Supreme Court has recently provided clarity on the ability of councils to establish and govern procedures through Standing Orders, in particular relating to proceedings of committees. Most importantly, the court has provided an insight into the circumstances when such Standing Orders may contain rules restricting committee members from voting on matters at a meeting requiring a decision. We consider below what this means in practice for councils and their relevant committees, both when preparing new Standing Orders or exercising the rules in their current procedures.
The finding in the case (as always) was based on the matter-specific circumstances but the wider judgement provides more detail set out by the court around the form, content and scope of Standing Orders which regulate procedures – and the consideration as to whether this case has more far-reaching consequences for councils to review and when exercising current standing orders.
Set out below are the key facts around the case and key points for councils to consider in not only preparing new Standing Orders but in reviewing their current procedures in the light of the judgement.
Facts of the case
In April 2021, a planning application was first heard at the Tower Hamlets Development Committee in respect of a site at Brick lane, East London. The decision was deferred, with a further hearing held in September 2021.
Standing Orders of Tower Hamlets Council were such that only members that were present at the first meeting in April 2021 could vote in the subsequent (September) meeting. Given the change in make-up of the committee membership, a number of the members present at the September meeting were prohibited from voting as they had not been present at the earlier April meeting.
The planning permission was eventually granted – by a vote of 2 to 1.
Key commentary around the case has focussed on whether or not the power of individual members to vote is an intrinsic part of the Local Government Act 1972 (“Act”) and whether the powers of s42 and s106 of the Act (which permit councils to make Standing Orders) can lawfully go as far as permitting councils to compile a procedure within a Standing Order that restricts that right to vote.
The Supreme Court held in the Tower Hamlets case that the Standing Orders could indeed restrict membership voting in that way. They held the view that whilst the power to vote is contained in statute, there are already legal provisions (both in statute and common law) that can restrict when members may vote (for example where there is danger of bias).
The court held that the provisions of s.42 of the Act are literal and to be read simply - in other words, procedures can be put in place which contain restrictions on when members can vote. However, it is crucial to note that this would not have been the case in all circumstances. Councils cannot have procedures which restrict voting disproportionately or in contradiction of public law principles and councils must ensure any procedures they have are genuinely fit for purpose as set out below.
What does the Tower Hamlets decision mean in practice for councils?
Within the narrative, the court makes the point that Standing Orders which are put in place which restrict the power of members to vote should be prepared and enforced having wider consideration for public law principles, for example, as set out below. It would be prudent for councils to consider and be able to demonstrate these points when drafting new or enforcing/reviewing existing procedures:
- Standing Orders may be made and can restrict member voting;
where restricting member voting, consider the real purpose of each rule within the Standing Order – can the council demonstrate clearly that the provision will provide for effective and efficient decision-making?
- does the wider power remain compliant within public law constraints?
- in particular, can the council show it is desirable and justified (setting out how it is proportional and fair ?) For example, is it clear that the rule will provide continuity in decision-making?
- is the power rational and for a proper purpose ? For example, can the council demonstrate it will uphold public confidence in the decision-making?
- In enforcing the procedure, the council must act rationally in exercising discretion – can it demonstrate it is providing continuity in decision making and upholding public confidence?
Above is a non-exhaustive set of considerations as each Standing Order and procedure, as in the case of Tower Hamlets, will be decided within the relevant circumstances, but the judgement is a useful starting point for guidance.
