Posted by: westlancashirerecord | May 28, 2016

A Legitimate View On Fracking?

On checking the “Writetothem” website for local matters I noticed an enquiry made in April to County Councillor David O’Toole, West Lancashire South Division.

O’Toole was asked “Lancashire is in danger of being fracked! No community wants this dirty industry and the Conservative Government is intent on imposing it against our will. Please can you let me know where you stand on this issue and why, in detail please”?

O’Toole replied a few days later “Thank you for your email. At the present time there is no application for fracking within my division or in fact West Lancashire. As a member of the planning committee it would not be wise to comment or reveal my own opinion on fracking as to do so could be considered prior determination and as such I would have to declare an interest and not be part of the decision making process. As far as Lancashire County Council is concerned I am not a member of the Development Control Committee and have no input into ANY planning decisions. Cllr Mrs Atherley may not reply to you as she is not well and as [sic] stood down from WLBC. Regards David O’Toole LCC”.

This reply gives indication of a strong smell of bullshit bullshit-b5. O’Toole can legitimately have an opinion or a view and quote it too. The question did not refer to any application and referred to Lancashire, not West Lancashire. As to the wisdom of O’Toole “commenting or revealing” his opinion on fracking, we’ve been here before. Eminent legal opinion states “A member in the discharge of his or her democratic functions within a political environment should not be afraid to express views, even strong views provided that they remain as views i.e. open to argument”.

And, also from eminent legal opinion, “a ‘view’ is not a ‘decision’ and should not (in the absence of ‘clear pointers’) be regarded as such. For “predetermination” means that the member in question has decided the matter in advance. Conversely, an expression of view is arguably in its nature unresolved, since a different view may always be taken before the matter is settled by cutting off previous possibilities, in other words, by deciding”.

O’Toole’s own government introduced the Localism Act 2011 that has largely codified the position the case law reached and says, in summary, that a decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind just because he or she had previously done anything that indicated the view he or she would take in relation to the matter”. Of course, you can lead a horse to water…? And I’m reminded that Bertrand Russell once warned against confusing an open mind predeterminedthoughts with one which is empty!

As a final offering note that the threshold for pre-determination is high. For instance, regarding manifesto pledges, there is case law to say that politicians can discuss issues in campaigns and still be open minded when making a decision – R (Lewis) v Redcar and Cleveland Borough Council [2010][Councillors] ‘can properly take part in the debates which lead to planning applications made by the Council itself. It is common ground that in the case of some applications they are likely to have, and are entitled to have, a disposition in favour of granting permission’.


Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s


%d bloggers like this: