The National Association of Memorial Masons, R (on the application of) v Cardiff City Council [2011] EWHC 922 (Admin)

[2011] EWHC 922 (Admin)Case No CO/6284/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT sitting at CARDIFF
Venue Cardiff Civil Justice Centre
Date 15 April, 2011
Before
THE HONOURABLE MR JUSTICE BLAKE
Between
THE QUEEN ON THE APPLICATION OF THE NATIONAL ASSOCIATION OF MEMORIAL MASONSClaimantCARDIFF CITY COUNCILDefendant
Winston Roddick CB, QC and Ruth Holtham den Besten (instructed by Kuit Steinart Levy LLP) for ClaimantWayne Beglan (instructed by Legal Services, Cardiff City Council) for DefendantHearing Hearing dates: 15 th 16 th March, 2011
JudgmentDate 2011-04-15

Introduction

[1]This is an application for judicial review of decisions of the defendant Cardiff City Council (CCC) relating to its policy for accreditation of stone masons who work in cemeteries it manages. Permission to bring the claim was granted by Mr Justice Lindblom on the 1st December, 2010 following an oral hearing, but as anticipated at that hearing the claimant has applied to amend its grounds for claim by contending that the material decision was vitiated by apparent bias. The parties were agreed that I should receive submissions upon that ground and treat it as a rolled up hearing of permission and the substantive hearing.[2]The claimant (NAMM) is the trade association of memorial masons established in 1907. Its activities include the maintenance and revision of a code of best working practice in the industry and code of best business practice, and having input into and a responsibility for the content of the GNVQ Course for a relevant trade qualification for those seeking to work in the industry.[3]The defendant CCC is a burial authority within the meaning of the Local Authority Cemeteries Order 1977 and as such has general powers by Article 3(1) of that Order to “Do all such things as they consider necessary or desirable for the proper management, regulation and control of a cemetery.”[4]It is common ground that one of the things that a burial authority may do in the exercise of that statutory power is to adopt a policy for regulating which stone masons may work in cemeteries under its control and that such a policy could include a scheme of accreditation of stone masons on payment of a modest annual fee.[5]Since at least the year 2000 there has been concern by the Health and Safety Executive, local authorities and others as to the safety of cemeteries where headstones or other funeral monuments have been erected. A summary of those concerns is set out in the decision of the Arches Court in the case of In Re Welford Road Cemetery [1997] Fam 15 at paragraphs [18] to [36]. Following those concerns interested parties came together to devise a national system of accreditation. Apart from NAMM, others interested in such a scheme of accreditation included the Institute of Cemetery and Crematorium Management (ICCM) founded in 1913 that merged in 2005 with the Confederation of Burial Authorities.[6]In October, 2003 NAMM announced that it was establishing a register called the British Register of Accredited Memorial Masons (BRAMM) and this registration scheme became operational in late 2004. In July 2005, members of the South Wales Bench Marking Group for Burial and Cremation Authorities proposed that the BRAMM Scheme be adopted in this region. Before this time, from 1990, the defendant had its own local registration scheme. In April, 2006 CCC adopted for a trial period the scheme whereby BRAMM accredited masons were able to work in Cardiff and the BRAMM scheme was formally adopted after a lead in period from the 1 April, 2007.[7]The original BRAMM Scheme was run by NAMM. It collected the accreditation fees; it set the standards for the working practices necessary for accreditation; it provided for the register of accreditation to ensure compliance with working and best business practice; it policed the scheme under the supervision of a governing body where others were represented. The advantages for masons of a national BRAMM scheme to replace purely local registration schemes, was that accredited masons could work in a number of cemeteries run by different local authorities on the payment of a single accreditation fee per annum. There were advantages to local authorities and cemetery managers in participating in the BRAMM scheme: its representatives had input into the governance of the scheme through representation on the BRAMM Board; it did not have to duplicate standards of training and good working and business practice, and the registration fee covered not only the costs of accrediting and registering but a call out service by experienced masons to check the standards of accredited firms and memorial fixers employed by them in the case of doubt.[8]In 2008 three developments pertinent to the present application took place. The first was that from June 2008 a draft constitution for BRAMM was proposed. The second was that CCC started a review of its Cemetery and Cremation Policy as part of a five year cycle of review. The third was that Martin Birch who throughout the material time held the post of Head of Bereavement Services at CCC became President of the ICCM from September until the 28 September 2009. He subsequently became the chair of the board of directors of ICCM and occupies that role at the time of this hearing.[9]In the context of discussion for a constitution for BRAMM tensions arose from October 2008 onwards between the NAMM General Council and other members of the BRAMM working committee and in particular the ICCM representative. Essentially NAMM objected to masons not being able to form a majority of the BRAMM board and the possibility that the chair of the scheme would not be an accredited mason. It was also opposed to a number of the proposals in the constitution relating to governance, continuing professional development, the duration of a fixers’ licence, and related issues. By May 2009 the disagreements between NAMM and the other representatives of BRAMM were such that NAMM withdrew from the working committee and the remaining members voted to adopt the disputed constitution.[10]In June, 2009 a extraordinary general meeting of NAMM adopted two resolutions firstly to suspend active involvement in the day to day operations of BRAMM until such time that the BRAMM board relinquished its stance on control and secondly to create a new national independent register of professional memorial masonry businesses and nationally competent memorial fixers.[11]From 12 May 2009, therefore, BRAMM, ceased to be a registration scheme run by NAMM, even though NAMM approved working practices were used as the basis of accreditation. BRAMM was registered as a trade association in June 2009. It currently describes itself as follows:- “BRAMM (British Register of Accredited Memorial Masons) Scheme was set up in 2004 with the aim of establishing a network of nationally accredited businesses and registered fixers that will ultimately replace individual Registration Schemes. i) To establish a recognised uniform standard of workmanship and business practice throughout the UK. ii) To promote BRAMM Accredited Businesses and Registered Fixers. iii) To ensure all Businesses, Fixers and Burial Authorities on the BRAMM Register follow the current health and safety guidelines to protect both the public and their employees. iv) To ensure that BRAMM businesses give a guarantee of the stability of their Memorial. v) To ensure the Scheme will be effectively policed ensuring that acceptable standards of fixing are maintained. vi) To encourage on-going training and education within the memorial masonry industry. vii) To promote a closer working relationship between Memorial Masons and Burial Authorities.”[12]In November 2009 NAMM set up its own register called the Register of Qualified Memorial Fixers (RQMF).[13]By March 2010 relations between NAMM and the ICCM were at particularly low ebb as there was a dispute as to who controlled the BRAMM bank account, where registration fees formerly collected by NAMM were deposited. This dispute was subsequently satisfactorily resolved between the two bodies without recourse to litigation.[14]Meanwhile CCC proposed to adopt its Cemetery and Crematorium policy drawn up in 2008 and sent it out for informal consultation with local masons working in the Cardiff area. Paragraph 6.2 of the Policy states:
“6.2 Fixing of Memorials 6.2.1 No works are permitted to be carried out on any grave space except by a monumental mason who is accredited to the British Registration of Approved Monumental Masons Scheme (“BRAMM”) or by staff of Cardiff Bereavement Services and such works may include any works associated with memorial safety inspections and the subsequent temporary making of any Memorial”. 6.2.1 No works are permitted to be carried out on any grave space except by a monumental mason who is accredited to the British Registration of Approved Monumental Masons Scheme (“BRAMM”) or by staff of Cardiff Bereavement Services and such works may include any works associated with memorial safety inspections and the subsequent temporary making of any Memorial”
.

The rationale for this policy was set out in the following terms:

“To promote high standards and protect consumers we only allow those to the approved on the national scheme to undertake any works on Memorials in our Cemeteries. Approved masons have the necessary skills to ensure that any memorial they fix or repair will be able to pass a future stability test.” 15. Paragraph 6.2.2 required: “All Memorials (including Memorials being re-fixed after a burial has taken place and those found to be unsafe after Memorial testing has taken place) are to be fixed in line with the National Association of Memorial Masons (“NAMM”) approved standard and code of safe working practice. This states the minimum requirements for the fixing of Memorials. On occasion it may be appropriate to include additional foundations of bearer slabs and these cannot exceed 4’ in width x 18” deep. All costs for this work must be met by the person to whom a permit to place the Memorial was given on his or her heir”
. The accompanying comment was: “To ensure all Memorials are safe they must be fixed to the recognised approved standards of the day”.[15]CCC adopted this policy on the 20 April 2009. Although a number of the masons working within the Cardiff area who had been consulted were NAMM members, NAMM itself as the national trade organisation was not consulted and was unaware of it until the spring 2010. It did not obtain a copy of the policy until December 2010.[16]NAMM came to know about CCC’s policy when two NAMM members who had formerly been registered with BRAMM but had ceased to pay the annual fee and were now registered with RQMF were informed that they could no longer work in CCC’s cemeteries. On the 22 February, 2010 NAMM wrote through its solicitors to the CCC asking it to permit memorial masons registered on RQMF to operate on sites under its control. The person to whom the claimants wrote was Mr Birch in his capacity as Head of Bereavement Services.[17]On the 8 March 2010 Mr Birch replied on behalf of the defendant explaining the decision taken to adopt a policy of BRAMM accreditation and identifying in a number of respects differences it considered important between BRAMM and the RQMF scheme. The material passage is as follows:
“As you are no doubt aware, the Council has a duty to keep its cemeteries in good order and repair and further, under Article 3 (1) of the Local Authorities’ Cemeteries’ Order 1977 (“the 1977 Order”), the Council, acting in its capacity as a burial authority, may, subject to the provisions of the 1977 Order, do all such things that it considers necessary or desirable for the proper management, regulation and control of its cemeteries. In pursuance of these powers/duties the Council has recently issued a revised cemetery and crematorium policy document (“the policy document”), the purpose of which is to set out the Council’s “in-house” rules which apply to the provision of the bereavement services and also to provide a useful guide to those who may require such services. In particular the policy document sets out the Council’s requirements with regard to the placing and fixing of memorials, memorial safety testing and memorial types permitted by the Council, one of those requirements being that no memorial works are permitted to be carried out on any grave space except by a monumental mason who is accredited to the British Register of Accredited Memorial Masons (“BRAMM”) or by staff of the Council’s bereavement Services department (Rule 6.2.1 of the policy document). There are many reasons as to why the Council’s requirement for masons to be registered under the BRAMM scheme is, I believe appropriate and reasonable. i) Firstly, it was recognised that one of the main purposes for the BRAMM scheme was to remove the need for multiple registration schemes to be set up and administered by different burial authorities to which masons would need to be registered, and to have a national registration scheme whose board would be represented by memorial masons, industry professionals and by burial authorities themselves. It is understood that this was seen as a major step forward and welcomed throughout the United Kingdom. For the Council the BRAMM scheme offers comfort as to the standard of work and proficiency of such works carried out by the memorial masons in its cemeteries. For example, those registered under the BRAMM scheme are required to undergo regular review to ensure that current best fixing methods are being adhered to and to ensure that staff responsible for the fixing of memorials are not becoming complacent about their work. With respect, it appears that the newly established NAMM Register of Qualified Memorial Fixers does not offer the same level of comfort. ii) Secondly, it is noted from NAMM’s registration website that whilst City and Guilds NPTC assessors offer to carry out at least one annual spot check of all RQMF memorial masons/fixers working in a burial authority area, such spot checks are a chargeable service to the burial authority and such costs shall be calculated depending on the number of memorial masons registered within a burial authority area. Given the pressures on the public purse, it is a concern that 1) NAMM proposes that such works are to be paid for by the burial authority and 2) the eventual calculated cost to the burial authority is unknown. In contrast, those memorial masons registered with BRAMM are required to undergo regular checks in order to maintain their registration and the costs incurred in this respect are met by the BRAMM scheme. In addition, works undertaken by memorial masons are monitored by the burial authority and any instances of non-compliance with industry standards by memorial masons can be reported to BRAMM by the burial authority. BRAMM investigate such matters and, where they consider it necessary, will instigate disciplinary procedures against the offending mason with any associated costs being met by BRAMM. iii) The BRAMM organisation includes and encourages representation from burial authorities thereby allowing for burial authorities to express their views, and influence, what constitutes industry standards and how the same can be enforced. This important factor and the comfort it affords to burial authorities appeal to be missing from the NAMM scheme.” ii) Secondly, it is noted from NAMM’s registration website that whilst City and Guilds NPTC assessors offer to carry out at least one annual spot check of all RQMF memorial masons/fixers working in a burial authority area, such spot checks are a chargeable service to the burial authority and such costs shall be calculated depending on the number of memorial masons registered within a burial authority area. Given the pressures on the public purse, it is a concern that 1) NAMM proposes that such works are to be paid for by the burial authority and 2) the eventual calculated cost to the burial authority is unknown. In contrast, those memorial masons registered with BRAMM are required to undergo regular checks in order to maintain their registration and the costs incurred in this respect are met by the BRAMM scheme. In addition, works undertaken by memorial masons are monitored by the burial authority and any instances of non-compliance with industry standards by memorial masons can be reported to BRAMM by the burial authority. BRAMM investigate such matters and, where they consider it necessary, will instigate disciplinary procedures against the offending mason with any associated costs being met by BRAMM. iii) The BRAMM organisation includes and encourages representation from burial authorities thereby allowing for burial authorities to express their views, and influence, what constitutes industry standards and how the same can be enforced. This important factor and the comfort it affords to burial authorities appeal to be missing from the NAMM scheme.”
[18]On the 19 March, 2010 the claimant responded through its solicitors contending that the differences were more apparent than real and were insufficiently material to justify exclusion of RQMF members from being accredited to work in the defendant’s cemeteries.[19]On the 30 April, 2010 the defendant replied in the following terms:- “Further to our letter of 22 April, 2010, Martin Birch, Head of Bereavement Services, has now returned to work and, on behalf of the Council, I am instructed to respond as follows. My client department has given detailed consideration to this matter and the Council is happy to amend its Cemetery and Crematorium Policy Document 2008 so that monumental masons who wish to carry out masonry works within the Council’s crematorium and cemeteries are required to be accredited to the BRAMM scheme or an equivalent scheme. However, for the reasons previously given my client department does not consider the RQMF to be equivalent to the BRAMM scheme, one of the key issues being that the RQMF scheme does not have burial authority representation on its board. My client department considers this an important issue for reasons previously set out in Martin Birch’s letter of 9 March 2010.”[20]On the 3 June, 2010, this application to bring Judicial Review proceedings was lodged, alleging that the decision to exclude RQMF as a accreditation scheme for those masons who wanted to work in CCC’s cemeteries was:- i) unlawful by reason that the policy was in restraint of trade; ii) irrational, perverse and disproportionate; iii) based on material mis-understanding of the relevant facts.

The Issues

[21]The claimant’s submissions as developed in its skeleton argument and orally were to the following effect: i) The decision to insist on BRAMM accreditation to the exclusion of those accredited with the RQMF was an unlawful restraint of trade preventing those who formerly were able to work in the defendant’s cemeteries from doing so without paying an additional fee for registering with BRAMM. ii) The decision was unreasonable/irrational/arbitrary in that it was accepted that both BRAMM and RQMF had similar aims and the differences between them could not justify a refusal to permit RQMF accredited masons to work in the defendant’s cemeteries. iii) In so far as CCC insisted on the BRAMM scheme to promote a national registration scheme that was a rival to the RQMF, it was acting contrary to the statutory purpose and its powers under Article 3 of the Cemeteries Order, 1977. iv) The new ground added after the grant of permission in this case, was that the decision to exclude RQMF accreditation was procedurally unfair because it was based on a decision of Mr Birch who held a significant position of responsibility in the ICCM with whom NAMM was in dispute about the management of BRAMM. Applying the recognised test for perceived biased, that in the circumstances to be ascertained by this Court a fair minded and informed observer would be led to conclude that there was a real possibility of danger that the decision maker was biased against NAMM.[22]The high point of the claimant’s factual case on perceived bias was that at the same time that Mr Birch was concluding that the RQMF scheme was not equivalent to the BRAMM scheme, the deterioration in relations between the ICCM and the NAMM had led the chief executive of the ICCM to write on 16 March, 2010 in the following terms:
“I have been instructed by the Institute’s board of directors to write to you to express their extreme disappointment and regret at the actions currently being taken by your organisation in respect of the British Register of Accredited Memorial Masons (BRAMM) scheme. As a result, directors unanimously agreed that the Institute will sever all contact and communication with your organisation until such time as you have ceased or your current actions in respect of the BRAMM scheme. Further to this it was also agreed that your organisation should not exhibit or attend at any Institute event in the intervening period. It should be noted that the Institute’s board took into account concerns received from its members when making the above decisions. For the avoidance of doubt, the Institute will collectively contribute to any communication to or discussion with your organisation via the BRAMM board only. To the above end the Institute’s board does not anticipate any reply to this letter or further correspondence with you until such time as you are able to confirm a cessation of your current actions to the BRAMM board”
. Mr Birch chaired the meeting where this policy was agreed.[23]The claimant accepted that: i) The adoption of a scheme of accreditation was within the scope of Article 3 of the Cemetery Order. ii) A local accreditation scheme was a legitimate exercise of discretion and further a local authority could lawfully adopt a rational national registration scheme in preference to a local scheme without that scheme being unlawful on the grounds of restraint of trade by causing members of the industry to pay registration fees. iii) The decision to adopt a registration scheme within the scheme of the regulation could only be challenged on public law grounds, and the claimant submitted that the proportionality of the scheme was a legitimate question for the court to consider in the course of the review of the rationality of the scheme. iv) Despite the intensity of the disagreement between ICCM and NAMM in 2010, it did not argue that Mr Birch or through him the defendant Council was actually biased in maintaining the decision of the challenge.[24]The defendant contended that once it was accepted that a scheme of registration and accreditation was permissible within the Regulations, it was for the local authority to decide what scheme it considered appropriate or necessary. It submitted: i) There was no statutory obligation to give reasons for the adoption of its scheme, and the assignment of weight as between one material consideration and another in the adoption of the scheme was for the local authority rather than this Court on judicial review. ii) The test for review should be a high threshold of unreasonableness having regard to the policy nature of the decision. iii) The perception of bias, had to be set in the context of local authority decision making, where the reasonable observer would know that local authority procedures and standards in public life, meant that administrative decision making could command public confidences despite connections and statements that would not be acceptable in a purely judicial context.

Perceived Bias

[25]The test generally is set out in Porter v Magill [2002] 2AC 357 at paragraph 102 to 103:
“The question is whether a fair minded and informed observer, having considered the fact, would conclude that there was a real possibility that the tribunal was biased.”
It was adopted in Lawal v Northern Spirit Ltd [2003] UKHL 35 [2003] ICR 856 at 861-2 with the comment: “Public perception of unconscious bias is the key. It is unnecessary to delve into the characteristics to be attributed to the fair minded and informed observer. What can confidently be said is that one is entitled to conclude that such an observer will adopt a balanced approached. The idea was succinctly expressed in Johnson v Johnson (2000) 200 CLR 488 509 at para 53 by Kirby J when he stated that ‘a reasonable member of the public is neither complacent nor unduly sensitive or suspicious’ ”.[26]The defendant submits that the context known to the reasonable observer includes whether the decision maker is a judicial or quasi–judicial one or an administrative decision in the course of local government decision making. It relies upon the decision in Feld vBarnet LBC and another [2005] EWCA Civ 1307, [2005] HLR 9 where the Court of Appeal concluded that the process of internal review of the suitability of accommodation offered but rejected by a homeless person did not preclude the same decision-maker conducting the review. The practical realities of deployment of local authority resources by use of the relevant official is another factor to be taken into account, as is the assumption that public authorities operating a statutory scheme should be deemed to be professional and able to put out of their mind irrelevant considerations or personal conflicts. In the Barnet case the applicant had made a complaint to the Ombudsman about derogatory comments made about him by a council official who had taken the decision that particular accommodation was appropriate. On review another decision maker had discussed the case with the original decision maker but agreed that the offer was suitable. Lord Justice Ward nevertheless concluded:- “These are certainly matters that the fair minded observer will take into consideration. Eyebrows may even be raised. Yet we must remember that this observer is neither complacent nor unduly sensitive or suspicious. Adopting a balanced approached such an observer will accept that investigation by and even adverse comment from the Ombudsman is one of the slings and arrows of local government misfortune which broad shouldered officials have to cope. Miss Windborn was not herself involved or the subject of criticism. She could be expected to bear criticism of the department not only with fortitude but with indifference for it did not affect her. Mr Feld may have become a thorn in the flesh of some but again there is no reason to think that Mr Hamilton’s views would so impinge upon her judgement as to dispose it to come to a conclusion adverse to Mr Feld. The fair minded observer is not likely to think that difficult customers cannot have a fair hearing.”[27]Mr Beglan also drew attention to “Local Government Constitutional and Administrative Law” by Andrew Arden QC and others (2008) citing Lord Hope in Gillies v Secretary of State for Work and Pensions (Scotland) [2006] UKHL 2 [2006] 1 WLR 781 at [17] “It is to be assumed that (the informed observer) is able to distinguish between what is relevant and what is irrelevant, and that he is when exercising his judgment to decide what weight should be given to the facts that are relevant”. In that case the issue was whether the participation of a medical member a medical member of a Tribunal gave rise to apparent bias by reason of her previous experience in the subject matter of the issue. The Inner House of the Court of Session and the House of Lords concluded she did not. Later in his speech Lord Hope said this:
“The fact is that the bringing of experience to bear when examining evidence and reaching a decision upon it has nothing whatever to do with bias. The purpose of disqualification on the ground of apparent bias is to preserve the administration of justice from anything that might detract from the basic rules of fairness. One guiding principle is to be found in the concept of independence. No one can be a judge in his own cause. That principle is, of course, applied much more widely today than a literal interpretation of these words might suggest. It is not confined to cases where the judge is a party to the proceedings. It applies also to cases where he has even the slightest personal or pecuniary interest in their outcome. There is no suggestion that that principle was breached in this case. The other principle is to be found in the concept of impartiality - that justice must not only be done: it must be seen to be done. This too has at its heart the need to maintain public confidence in the integrity of the administration of justice. Impartiality consists in the absence of a predisposition to favour the interests of either side in the dispute. Therein lies the integrity of the adjudication system. But its integrity is not compromised by the use of specialist knowledge or experience when the judge or tribunal member is examining the evidence.”

Conclusions

[28]The falling out between NAMM and the ICCM and the other participants in BRAMM is unfortunate. There were mutual advantages to a national system of accreditation. The defendant’s concern that a scheme of accreditation for those working in local authority cemeteries should have local authority representation on the governing body is a reasonable one as it would be a legitimate need to ensure that the standards of accreditation, regulation and discipline were appropriately robust to address the risks to the public of defective memorials inadequately fixed. The costs of accrediting and regulating such a scheme were also material considerations to be taken into account.[29]On the other hand any reasonable local authority making policy in this area must be alive to the fact that municipal cemeteries must amount to a significant part of the market for the profession of memorial masonry. An over-intrusive policy that denied competent masons access to a significant part of the market for their services save on further payment when adequate accreditation already existed might be disproportionate and open to challenge as such.[30]Further any such local authority would need to be alive to the fact that its power to make policy in this context is limited to what it considered necessary for the proper management, regulation and control of a cemetery, rather than the general regulation of the industry of memorial masons. “Necessary” is an ordinary word, to be given its ordinary meaning, but in the context of restrictions of the ability of competent masons to carry out there professional activity, in my judgment it has the connotation of something more than merely desirable albeit less than imperative. It may be apposite to note that the Divisional Court in Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 Admin approved the following passage from the decision of the European Court on Human Rights the The Sunday Times v United Kingdom(1979) 2 EHRR 245paragraph 59:
"The court has already had the occasion …to state its understanding of the phrase "necessary in a democratic society" the nature of its functions in the examination of issues turning on that phrase and the manner in which it will perform those functions. The court has noted that, while the adjective "necessary", within the meaning of article 10(2) is not synonymous with "indispensable", neither has it the flexibility of such expressions as "admissible", "ordinary", "useful", "reasonable" or "desirable" and that it implies the existence of a "pressing social need."
[31]I can see nothing wrong with the defendant’s policy when first adopted in 2008 and 2009. It was promoting a scheme in which the recognised trade association that set the standards of professional good practice participated and administered. There was a proportionate nexus between the aims of the policy: safety in cemeteries by applying NAMM standards and the means of giving effect to it, a NAMM assisted accreditation scheme. A lawful accreditation policy is not a restraint of trade, but an incidental cost of trade as any modest payment to a regulatory body might be. Confronted with the possibility that they could not work in their local areas, the relevant firms who had come to NAMM’s attention rejoined the BRAMM scheme in addition to the RQMF. Once NAMM had withdrawn from BRAMM as it did in May 2009 and once a different scheme promoting the same standards of professional good practice was launched as it was in November 2009, the policy needed careful review.[32]However the question in the present proceedings was not whether the BRAMM scheme was reasonable when adopted, but whether it was reasonable to exclude masons (including masons whose suitability to work in Cardiff cemeteries had never been disputed) because they were registered on the RQMF scheme. Insistence on a only purely voluntary scheme of accreditation when there was a perfectly adequate alternative scheme, might be irrational because it:- i) went beyond the scope of the local authority’s power to do what was considered necessary to regulate cemeteries and/or ii) disproportionately interfered with the right of competent masons to continue to access the local market in memorial masonry.[33]The defendant appeared to recognise that amendment of its policy was necessary between 8 March and 30 April 2010 as by the letter of the latter date it agreed that it should recognise any “equivalent” scheme. Such a policy as amended again appears to be well within the competence of a reasonable council applying its mind to what it considered necessary to manage its cemeteries. Equivalent does not mean the same as, but having the same value as the comparator. Whether the differences in the BRAMM and the RQMF were such as to enable a reasonable decision maker to conclude that the latter was not equivalent to the former, was something that called for careful assessment and appraisal. After all NAMM was the body that set the standards of best technical and business practice, and it updated its manual of such practice when appropriate. There was no evidence that it was unduly tolerant of, or reluctant to take disciplinary action against, poor workmanship. On the other hand NAMM might well have failed to recognise the public interest in independent scrutiny of professional regulation, rather than an occupation being seen to police itself: lawyers and health professionals will be well aware of the direction of travel in statutorily regulated occupations. A careful evidenced-based assessment and evaluation might therefore have resulted in a rational decision that RQMF was not an adequate alternative to the BRAMM scheme for CCC.[34]The unfortunate fact is that at the same time that the new policy of equivalence was announced, a decision was reached that RQMF was not equivalent for reasons given in the previous letter explaining why the BRAMM scheme was reasonable. I appreciate that the defendant had the benefit of the claimants solicitor’s letter setting out their views as to the similarities between the two schemes, but a fair procedure may well have called for a period of further information gathering and consultation as to the disciplinary procedures and practices adopted by RQMF; the level of service by way of investigation of complaints against RQMF accredited firms that was provided by the scheme without cost to the local authority and the extent to which other local authorities had found RQMF accreditation satisfactory as a means of ensuring appropriate safety and business standards in memorial masonry.[35]Some of these matters were unresolved in the evidence placed before the court and representations made after the conclusion of the hearing. I discount the information I was given from the Bar that over 90% of other local authorities have adopted RQMF. It was not borne out by the data gathered from the claimant’s web site and has been withdrawn. It seems, however, likely from the information now available that an appreciable number of authorities are satisfied with the RQMF register as an accreditation scheme and none outside the South Wales area (where CCC is influential) have expressed positive dissatisfaction. The geographical reach of the RQMF scheme has not been compared with BRAMM in the decision making process of evidence deployed forensically.[36]Further the uncomfortable fact is that the decision that RQMF was not equivalent to BRAMM appears to have been taken by Mr Birch. He gave the previous explanation and his views were of such importance that a reply to the letter from the claimant’s solicitors could not be sent until he returned to work (he was absent due to ill health). The decision on equivalence was based on his reasons given earlier, rather than a fresh consideration of the problem by a distinct official or body.[37]I accept the defendant’s point that perceived bias does not arise in the context of local authority decision making because councillors or employees have relevant experience or are asked to reconsider a decision they had previously taken, or re-examine the application of policy they had earlier approved. I accept that this was not a judicial decision but one taken by a local authority that would be expected to rely on the advice of its most qualified professional in the area.[38]However, for all his experience as the defendant’s employee, Mr Birch was also President of the ICCM at the time of the dispute with NAMM. Moreover, a few days earlier than the decision under challenge, he had participated as chair in taking and approved a decision by ICCM’s governing body to sever contact with NAMM because of their attitude to BRAMM. It would be asking too much of the reasonable observer to think that such an assessment, taken by such a person in such circumstances was impartial. The dispute about BRAMM was too current and too central to the very issue that had to be decided for it to be left to Mr Birch’s assessment alone.[39]It would not have undermined the practical exigencies of government for Mr Birch to have declared an interest in the decision in hand in his capacity as ICCM Chair, and accordingly have asked others to make the decision even if he still had to participate in it by making a report on the issues. There is no evidence that course was adopted or any technique used to insulate the decision from Mr Birch in a material way. I have reviewed the summary of decisions either side of the line given in Fordham Judicial Review Handbook 5th Edition at 61.3.2.[40]In my judgment, a fair minded and informed observer, having considered the salient facts summarised above would conclude that there was a real possibility that the defendant’s decision that the RQMF scheme was not equivalent to BRAMM was biased. Public perception of this decision would be one of real concern rather than merely quizzical.[41]The defendant further submitted that no relief should be awarded in the case of a finding of apparent bias because: i) The bias was waived by the claimant writing to Mr Birch in the first place. ii) There was undue delay in amending the grounds to take the point. iii) There was little point in remaking the decision as CCC was bound to find against NAMM on reconsideration.[42]I cannot accept these submissions. The claimant was never offered the opportunity to have Mr Birch stand down from the decision making. It did not elect to continue until the decision went against them: contrast Jones v DAS Legal Expenses [2003] EWCA Civ 1071. It did not waive any reliance on apparent bias by writing to Mr Birch in the first place as he was CCC’s relevant officer to deal with the issue. If he had felt that there was a potential conflict of interest he should have declared it.[43]The application for judicial review was made on 3 June 2010. For reasons given above the critical decision excluding RQMF of which the claimant complains was made on 30 April 2010 by application of the new equivalence policy. This is linked to the 8 March decision but it is not a challenge to the policy when first adopted in 2009. RQMF was not in existence then. There has been no material delay in bringing the challenge. The original grounds of challenge are not as clear and as full as they might have been and focus on irrationality rather than procedural impropriety, but the apparent bias challenge was ventilated when Lindblom J gave permission, and has not emerged last minute out of the blue. The defendants have not been prejudiced by the timing of the point being taken, and this is not a case where once taken they have conceded the case. Further I am not proposing to grant any relief that would quash the defendant’s policy but merely the decision that RQMF was not equivalent to BRAMM made under it. I can see no basis for a discretionary refusal or permission or relief following the grant of permission.[44]As to materiality, I reject the defendant’s submission that the fact the defendant might well reach the same decision is a reason for refusal of relief. The topic is addressed by Fordham (above) at 61.3.6 where the decision in R (Al-Hasan) v SSHD [2005] UKHL 13; [2005] 1 WLR 688 is cited. There Lord Brown found apparent bias in the participation of a prison governor in a disciplinary hearing where the lawfulness of an order he has been party to was challenged. He rejected at [42] to [44] the Crown’s submission that no relief should be afforded because the lawfulness of the order was now recognised “ On this question I entertain not the slightest doubt that Mr Fitzgerald is right. Indeed it seems to me clear both as a matter of principle and authority that once proceedings have been successfully impugned for want of independence and impartiality on the part of the tribunal, the decision itself must necessarily be regarded as tainted by unfairness and so cannot be permitted to stand. There are decisions to this effect both ancient and modern of the highest authority. Over 150 years ago in Dimes v Grand Junction Canal (1852) 3 HLC 759 the House of Lords set aside Lord Chancellor Cottenham's decree affirming the Vice-Chancellor's decision in favour of a company in which Lord Cottenham himself was a shareholder. As Lord Campbell said at p 793:
"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. . . . and it will have a most salutary influence on [inferior] tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside."
Only recently, in Millar v Dickson[2002] 1 WLR 1615, 1624, Lord Bingham of Cornhill took the same view with regard to a number of decisions reached by temporary sheriffs contrary to article 6 of the Convention:
"There is indeed nothing to suggest that the outcome of any of these cases would have been different had the relevant stages of the prosecution been conducted before permanent instead of temporary sheriffs. There is no reason to doubt that the conduct of all the temporary sheriffs involved was impeccable, and no reason to suppose that any of the accused suffered any substantial injustice. But . . . it is in my view clear from authority that the right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is one which, unless validly waived by the accused, cannot be compromised or eroded."
So too here: the findings of guilt against these appellants must now be expunged.” "No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. . . . and it will have a most salutary influence on [inferior] tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside." "There is indeed nothing to suggest that the outcome of any of these cases would have been different had the relevant stages of the prosecution been conducted before permanent instead of temporary sheriffs. There is no reason to doubt that the conduct of all the temporary sheriffs involved was impeccable, and no reason to suppose that any of the accused suffered any substantial injustice. But . . . it is in my view clear from authority that the right of an accused in criminal proceedings to be tried by an independent and impartial tribunal is one which, unless validly waived by the accused, cannot be compromised or eroded."[45]I accordingly conclude that although the defendant’s decision was not perverse in the sense that no reasonable local authority properly directing itself could have reached it and nor on the facts would a reasonable accreditation scheme requiring a modest annual payment be void as a restraint of trade, the decision that RQMF was not equivalent to BRAMM was procedurally flawed by apparent bias with the consequence that it should be set aside and re-taken by an impartial body. Any remaining disputes as to the difference between the two schemes and the assessment of weight to be attached to any clear difference can be addressed in representations made when the matter is reconsidered by the defendant in accordance with the principles set out earlier in this judgment.[46]I will receive written submissions from the parties on consequential matters, but as the claimants have only succeeded in part of their claim formulated late, it may be that it is appropriate to make no order as to costs.