“41 Local authorities could draft their codes of conduct to say, simply, that a prejudicial interest will arise whenever a person has an interest which a fair-minded and informed observer would regard as giving rise to a real possibility of bias (or words to that effect). But that would be unhelpful to councillors and to members of the public alike, because it is not always easy to predict how the common law test will be applied by others. So, local authorities generally go further and specify particular kinds of interests and connections which will, and will not, be disqualifying. 42 The process of drafting a code of conduct requires the local authority to take a considered view, in advance, about situations which its members are likely to face and decide whether they should, or need not, disqualify themselves in those situations. The draft will be tailored to the circumstances of the local authority in question and can then be the subject of local consultation and debate. This process not only delivers greater certainty, but also promotes good administration by holding elected representatives to reasonably precise standards, adopted in advance with a democratic imprimatur. 43 Against this background, it would be surprising if compliance with the code of conduct were categorically irrelevant to the question whether the apparent bias test was met. I accept that it cannot be determinative, but it is surely a matter which the fair-minded observer would take into account in deciding whether there was a real possibility of bias. Providing that the definition of “prejudicial interest” is a reasonable one, and other things being equal, a fair-minded observer would consider that a member who had no prejudicial interest was less likely to be biased; and that, other things being equal, a member who had a prejudicial interest was more likely to be biased.”
“50 In my judgment, this affects what the fair-minded observer would think about Cllr Hamilton’s participation in the Planning Committee meeting. Although he had not himself promoted the application, or voted to make it, he was nonetheless a member of a relatively small public body whose application he was being asked to consider. The passage quoted above from [24] of Lord Hope’s judgment in Meerabux shows that mere membership of an organisation party to a proceeding does not automatically disqualify and that active involvement in the institution of the particular proceedings does automatically disqualify. This does not mean that, without such active involvement, there will never be apparent bias. As Lord Hope made clear at [25], that will depend on an application of the Porter v Magill test, which is fact-specific. 51 In this case, the relevant facts are these. Cllr Hamilton was one of 15 members of the Town Council and was Deputy Mayor. He was present at meetings where support for the application was expressed. Although he did not participate, the Town Council voted to become the applicant and to indicate its support by letter. On a proper construction of the Code, he had a prejudicial interest, which disqualified him from participating in the decision-making process. When taking all these facts into account, a fair-minded member of the public would conclude that there was a real possibility that he would be biased in favour of the Town Council’s application. 52 The Code does not assist in answering the question whether Cllr Baker was tainted by apparent bias. The applicability of the Code in his case depended solely on whether a member of the public with knowledge of the relevant facts would reasonably regard his interest as so significant that it was likely to prejudice his judgement of the public interest. But this is a paraphrase of the Porter v Magill test. 53 In my judgment, however, the Porter v Magill test was clearly satisfied. Cllr Baker had a longstanding association with both the CC Committee and the Eclipse carnival club. The application was presented as needed to secure the continued viability in the medium term of both the Federation (of which the CC Committee was a constituent part) and the remaining carnival clubs (of which Eclipse was one). Both the Federation’s constituent committees (including the CC Committee) and the clubs (including Eclipse) were said to be supportive of the application. Eclipse appears to have had a financial interest in the outcome, because, as the application made clear, the rent it and the other clubs would pay under the agreement with Dillington was lower than for its existing premises. Cllr Baker was personally pictured in the application documents among a group of individuals appearing to support the SSCP Committee (which was agent for the application). Nice distinctions of the kind relied upon by Mrs Graham Paul (“among the South Somerset carnival supporters” rather than “a supporter”) have no place in an analysis of this kind: the fair-minded observer would place more weight on the impression created by the article and picture than by a minute linguistic analysis of the caption. Such an observer would clearly conclude that there was a real possibility of bias.”
“Predetermination is a different, though related concept. A decision may be vitiated by predetermination where there is a “real risk that minds were closed”, but in assessing that question in the planning context, the courts must recognise that “councillors are not in a judicial or quasi-judicial position but are elected to provide and pursue policies” and “would be entitled, and indeed expected, to have and to have expressed views on planning issues”: R (Lewis) v Redcar and Cleveland Borough Council[2008] 2 P&CR 21 , [68]-[69] (Pill LJ).”
“The concept of an NHS Foundation Trust rests on local accountability, which governors perform a pivotal role in providing. The Council of Governors collectively is the body that binds a trust to its patients, service users, staff and stakeholders.”
“NHS Foundation Trusts are different from NHS Trusts. They have a unique legal form, known as public benefit corporations. NHS Foundation Trusts provide healthcare services for patients and service users in England. Unlike NHS Trusts, they are free from central government control and can manage their own affairs and make their own decisions, including whether to make and invest surpluses. However, they remain subject to legal requirements and have a duty to exercise their functions “effectively, efficiently and economically”
“Council of governors The council of governors is made up of elected and appointed governors. Governors are volunteers and are not paid. Elected governors are elected by distinct constituencies: • public governors are elected by members of the public constituency; • staff governors are elected from the staff body; and • patient carer or service user governors are elected by members who are patients/service users and/or their carers. Appointed governors represent stakeholder organisations such as the local council or local charities. If the foundation trust wants governors appointed by an external organisation, this must be specified in the constitution. The structure of the council of governors is shown in the diagram below.”
“Governors are not directors. The governors’ duty to “hold the non-executive directors, individually and collectively, to account for the performance of the board of directors” does not mean that governors are responsible for decisions taken by the board of directors on behalf of the NHS foundation trust. Responsibility for those decisions remains with the board of directors, acting on behalf of the trust.”
“18) The Trust’s Council of Governors meets four times a year and, as a minimum, the Trust’s governors are expected to attend each of these meetings. I have discussed these meetings further below. 19) The Council of Governors also has a number of subcommittees: the Patient Experience and Safety Committee; the Governors Strategy Committee and the Nominations Committee. Mr McPartlan was not on the Nominations Committee, but the membership of both the Patient Experience and Safety Committee and the Governors Strategy Committee is more fluid and all governors are welcome to attend the meetings. 20) Governors also have informal opportunities to engage with the Trust and to meet with the non-executive directors. A number of the governors sit as observers on the board committees. When Mr McPartlan was a governor, he attended the Bromley Committee as an observer. Mr McPartlan would not have been part of and would have had no role in the decision making process at these meetings and attended in a purely observational capacity.”
“The debate whether to grant planning permission for a new endoscopy unit at the PRUH lasted around 90 mins on Tuesday. I genuinely felt torn by the benefits and drawbacks, but feel confident the committee made the right decision in the end.” 38) Mr McPartlan was also quoted in the local press as saying: “This is an incredibly difficult decision to make. For me, the benefits of this far outweigh the drawbacks.”
“2) It appears from the minutes that in addition to Councillor McPartlan serving as a Bromley governor there is also a patient governor called Billie McPartlan. It appears from what follows that Billie McPartlan is Councillor McPartlan’s wife. 3) The Charity Commission’s Register of Charities records that both Councillor McPartlan and Billie McPartlan are co-trustees of a charity known as Billie’s Fund, whose primary object is “to promote and protect physical and mental health of sufferers of leukaemia and chronically ill people, achieved through the provision of financial assistance, equipment donations and gifts for charities, individuals and projects affected by or dedicated to the advancement of this cause; to advance the education of the general public relating to all areas of blood cancers and general health”. 4) I produce as my Exhibit RAM2 a printout of the charity’s page from the Charity Commission’s website. 5) There also appears on the Charity Commission’s website a link to the charity’s website, from which I also exhibit an extract in Exhibit RAM2. 6) In this respect, I note, in particular, the reference on the Charity Commission’s website to “achieving” the charity’s objectives “through the provision of financial assistance, et cetera, and projects dedicated to the advancement of this cause”
“Such was the outpouring of support that she received after her diagnosis with acute lymphoblastic leukaemia, Billie and her husband-to-be Tony created a charity to give something back to King’s College Hospital in South East London, as well as the charities that were helping her during her treatment”. 7) I invite the court, on the claimant’s behalf, to take this evidence into account in considering whether an objective observer, having knowledge of the relevant facts would have concluded that there was a real possibility that Councillor McPartlan was biased.”
“4) The statement of Robert McGeady refers to the treatment received by the partner of Mr Tony McPartlan, Billie McPartlan. However, nowhere in any of the information provided does it confirm that Billie McPartlan received any treatment at the Princess Royal University Hospital. 5) Mr McGeady’s witness statement refers to the treatment that Billie McPartlan received from the Trust following her diagnosis with leukaemia, a type of blood cancer. 6) However, the planning decision which is the subject of these proceedings relates to the construction of a new endoscopy unit at the PRUH. Endoscopy is not a diagnostic medium for the detection of blood borne cancers. 7) The Trust is internationally renowned for its haematological work on blood cancers and treats patients from all over the United Kingdom with these conditions. 8) The Trust serves a population in South East London of around 1.5 million people and a wider population for specialist services of over£5 million . Consequently, the Trust touches on many people’s and families’ lives, including those living close by. Many of these patients donate money to the Trust or raise money for the Trust. A number of the councillors at the planning meeting spoke of their regard and gratitude for the healthcare that the Trust delivers and confirmed that they or their close relatives had received treatment from the Trust. However, some of these councillors still voted against the proposals. 9) The Trust has no record or evidence of receiving any charity donation from Billie McPartlan to the PRUH, nor would we expect any such donation as the Trust’s complex cancer haematology services are not based at the PRUH. 10) The Trust’s principal charity is the King’s College Hospital Charity. The King’s College Hospital Charity is an independent charity as of February 2016 and is independent of and not controlled by the Trust. The King’s College Hospital Charity therefore takes its own decision on where and how donations are spent. 11) I understand from the council’s solicitor that Mr McPartlan has confirmed that while some donations were given to the King’s College Hospital Charity when Billie’s Fund was first set up in 2016, there have not been any donations made to the Trust’s charity since March 2020. The charity’s records confirm that donations made in July 2016 totalling approximately£2,000 were made to the leukaemia and lymphoma designated fund into the King’s College Hospital Charity. These were restricted donations and were therefore legally required to be spent on that project, i.e., in relation to leukaemia and lymphoma treatment. 12) I also note that this point regarding Billie’s Fund was never raised in the original claim. I understand from Bromley Council that Mr McPartlan’s membership of the charity is recorded in the council’s register of interests and would therefore have been public knowledge since before these proceedings were issued. I attach Mr McPartlan’s current register of interest as at24 February 2023 as Exhibit GS4.”
“2) Billie McPartlan is my wife and she is a patient governor and both of us are trustees of Billie’s Fund. This information is publicly available and has been since before the claimant brought these proceedings. As shown in Exhibit GS4 to the fourth witness statement of Graham Sherlock, I registered my membership in Billie’s Fund with the defendant and this can be viewed from my profile page on the defendant’s website. 3) My wife was diagnosed with leukaemia in 2015 at the Princess Royal University Hospital and she was moved to King’s College Hospital in Camberwell two days later as it is a specialist haematology centre. Apart from the diagnosis, she has never been treated at the PRUH. A number of friends and family wanted to donate money to relevant charities, so we decided to set up a charity ourselves, “Billie’s Fund”. 4) My role as a trustee is to run it with my wife. It is something that we do in our spare time as the reality is, especially now, very little money flows in or out of it. My wife spent a lot of time in hospital in Camberwell and that meant we saw lots of issues with patient care. Our aim to “give back” was to help fundraise for a few projects that would improve patient care. 5) Our initial fundraising in 2016 saw£2,000 donated to the King’s College Hospital Charity, as set out in para.11 of Graham Sherlock’s fourth witness statement. 6) A further£2,000 was donated to the King’s College Hospital Charity to help fund their new critical care unit in Camberwell and£3,500 donated to LIBRA to help fund a new ambulatory care unit in Camberwell. 7) As my wife continued to go through further treatment,£500 was raised for physio equipment at Orpington Hospital, which is also part of King’s College Hospital NHS Foundation Trust, in 2017. Our final larger donation was made in March 2020,£1,000 to Leukaemia UK for their Mind and Body Campaign, of which King’s was part. To the best of my knowledge, none of that money went to the PRUH and, instead, was directed to the Camberwell site.”
“King’s is our local NHS Trust, so it is impossible not to come into contact with it. Unfortunately, my wife’s health meant that we have come into contact with it more than most. The generosity of others meant, through Billie’s Fund, we could contribute in a small way to improve patient care there. It does not mean I am an advocate partner or spokesperson for the Trust. I want the best for patients who are treated there, but in the same way we all want the best from our local health service.”
“Members must never be involved in decision-making for applications submitted by themselves, a family member or close personal associate and must comply with the Members Code of Conduct at all times when such applications are submitted. If, on consideration of a planning application, a fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that a Member was biased the Member must recuse themselves from consideration of that application.”
“30. I confess to some doubt as to this approach, and in particular to what he says in paragraph 36. Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. Such may, as here, have been raised as election issues. It would be quite impossible for decisions to be made by the elected members whom the law *455 requires to make them if their observations could disqualify them because it might appear that they had formed a view in advance. The decision of the Court of Appeal in Baxter’s case, of the New Zealand Court of Appeal in the Lower Hutt case and of Woolf J in the Amber Valley case do not support this approach. Nor is it consistent with those authorities that no weight should be attached to their own witness statements. Porter v Magill was a very different situation and involved what amounted to a quasi-judicial decision by the Auditor. In such a case, it is easy to see why the appearance of bias tests should apply to its full extent. 31. The reality is that Councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should … So it is with Councillors and, unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.” 60. Collins J. concluded, at [32]: “It may be that, assuming the Porter v Magill test is applicable, the fair-minded and informed observer must be taken to appreciate that predisposition is not predetermination and that Councillors can be assumed to be aware of their obligations. In this case, the evidence before me demonstrates that each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so. I am not therefore prepared to accept that there was apparent bias or predetermination which vitiated the decision.”
“What, then, are the relevant facts to be gleaned from the material available to the court in the present case?”
“In the circumstances I feel entitled, indeed required, to reach a decision on the issue as raised in this appeal by forming a fresh assessment of my own by reference to the various circumstances that I have mentioned.”
“What does a governor do? Governors have an important role in making an NHS Foundation Trust publicly accountable for the services it provides. They bring valuable perspectives and contributions to its activities. Importantly, as a governor you will hold non-executive directors to account for the performance of the board and represent the interests of NHS Foundation Trust members and the public.”
“We all put patients first, whilst making the best use of valuable public money so that it can stretch even further.”
“In summary, “holding the non-executive directors to account” requires governors to scrutinise how well the board is working, challenge the board in respect of its effectiveness and ask the board to demonstrate that it has sufficient quality assurance in respect of the overall performance of the Trust. This is likely to involve questioning non-executive directors about the performance of the board and of the Trust and making sure to represent the interests of the Trust’s members and of the public in doing so. In performing this duty, governors should keep in mind that the board of directors continues to bear ultimate responsibility for the Trust’s strategic planning and performance.”
“Members of the public and staff who work at an NHS foundation trust can be “members” of the trust. In addition, NHS foundation trusts may opt to have a category of members who are either patients/service users and/or their carers. Members vote to elect governors and can also stand for election themselves.”
“NHS foundation trusts are permitted to decide themselves what constitutes a “significant transaction” and may choose to set out the definitions in the trust’s constitution. Alternatively, with the agreement of the governors, trusts may choose not to give a definition but this would need to be stated in the constitution. Examples of a definition might include any proposed contract over a certain monetary value or over a certain percentage of the trust’s turnover. Or trusts could choose to define what constitutes a “significant transaction” in non-monetary terms.”
“The role of a governor of King’s College Hospital NHS Foundation Trust was to appoint the Chairman and represent local areas at the Council of Governors and associated committees. Governors could also raise questions with the Trust’s board on wider financial or governance matters.”
“We turn to the objection based on the fact that Sedley LJ himself suffers from mild tinnitus and we are accepting for present purposes that this was not disclosed. It too is a point of no substance. It amounts to a contention that no judge with any particular disability should hear a case involving that disability. A judge with poor eyesight or only one eye could not hear a case about an eye injury, a judge in a wheelchair could not hear a case about an injury which made the victim wheelchair bound and so on. And, taken to its logical conclusion, the argument would meant that a disabled judge could not hear a case about disability living allowance, or a woman judge hear a case about sexual discrimination against a woman. The examples multiply.”