Freemasonry Under the Bias Spotlight

Can a Freemason councillor take part in a decision when another Freemason or branch of Freemasonry has an interest in the outcome of the decision? That was what Newman J had to unravel in the High Court on 5 April 2006 in R (Port Regis School Ltd) v North Dorset District Council [2006] EWHC 742 (Admin).

The case concerned an allegation of apparent bias in respect of a decision taken by the full North Dorset District Council. This was to accept the recommendation of its Development Control Committee to approve an application for planning consent by the Gillingham and Shaftesbury Agricultural Society. The apparent bias was in the light of the fact that two members who attended and voted at the full Council meeting were Freemasons. The application was for planning permission to use agricultural land as a showground and to erect a pavilion. The supporting business plan stated that the Agricultural Society had held talks with the masonic lodge in Gillingham about providing a dedicated room in the pavilion for the lodge's use in relation to which the lodge would provide a capital injection of some £350,000 as well as contributing to the running costs.

The officer's recommendation to Development Control Committee was that there could be no justification for the Development in accordance with normal planning policies and that it should consequently be refused. However, the Committee resolved that it was minded to approve the application and, since the application amounted to a departure from the Local Plan, referred it to the full Council for approval. The officer recommendation to full Council was that the application should be refused because justification had not been established and there would be unacceptable harm to the countryside. In the circumstances the recommendation was 'firmly to refuse planning permission'. The Council nevertheless approved the application.

The Court noted that following Porter v Magill [2002] LGR 51, the appropriate test for determining an issue of apparent bias is whether a fair minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility that the tribunal was biased. It is also necessary (per Georgiou v London Borough of Enfield [2004] EWHC 779) to look beyond personal or pecuniary interests 'to consider whether a fair minded and informed observer would conclude there was a real possibility of bias in the sense that members approached the decision without impartial consideration of all relevant planning issues'.

Newman J considered the Council's Code of Conduct for its members and the relevant characteristics of Freemasonry. As to the Code, each member had individually declared their Freemasonry and had signed the requisite declarations to abide by the Code. However, neither member declared an interest as Freemasons at the relevant Council meeting. This was because (in line with the advice of the Council's Monitoring Officer at the meeting) they did not consider that their Freemasonry gave rise to any prejudicial interest. The Monitoring Officer had advised all members present at the Council meeting in question that it was not membership of any masonic lodge that would constitute a prejudicial interest but only membership of the particular lodge in question (the Gillingham Masonic Lodge). Newman J noted from the evidence that since each Masonic lodge acts independently from other lodges and may frame its own governance no lodge can be considered as being affiliated to another.

The Court noted that from the Constitutions of Freemasonry that:

'Everyone who enters Freemasonry is, at the outset, strictly forbidden to countenance any act which may have a tendency to subvert the peace and good order of society; he must pay due obedience to the law of any state in which he resides or which may afford him protection, and he must never be remiss in the allegiance due to the Sovereign of his native land'.

Newman J pointed out that the issue raised by the case was important for Freemasonry as well as being of considerable importance to those who are Freemasons. There was no actual bias alleged. Nor was it a case in which there was a sufficient pecuniary or proprietary interest to attract automatic disqualification. The true analysis of the underlying facts was that 'each lodge is autonomous'. The Court was conscious that the extent of the suspicion surrounding Freemasonry would make it likely that a large section of fair minded people would believe that 'there is always a real possibility that a Freemason will assist another Freemason or Freemasonry, whatever may be called for by the merits of a decision which has to be taken in connection with local government'.

However, Newman J came to the conclusion that a fair minded observer, informed of the facts in connection with Freemasonry as placed before the court and having regard to the circumstances of the instant case would not conclude that there was a real possibility of apparent bias affecting the relevant decision of the full Council. He considered that a fair minded appraisal had to be made of (amongst others) the following:

1. The Masonic principles of mutual defence and mutual support did not suggest unquestioning support under any circumstances. For instances, a mason 'must not engage in offences contrary to the laws of God and the ordinances of the realm'.
2. The information and guidance given to Masons includes advice on the need for declarations of interest to be made including, where appropriate, membership of Freemasonry.
3. The councillors in question were required by law and by their Freemasonry to adhere to the legal obligations imposed on them by the Local Government Act.
4. Freemasonry does not require a Freemason in local government to be partial to any other Freemason . Freemasonry underpins the requirements of impartiality and fairness set by the law.
5. Lord Bingham in Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] 1 All ER 65 considered that ordinarily, Masonic associations would not require a judge to recuse himself. Also, Lord Irvine, former Lord Chancellor, did not accept that the oaths of mutual assistance were incompatible with the judicial oath.

In the circumstances, Newman J concluded in the circumstances of the particular case that the Freemasonry of the members in question did not give rise to apparent bias in the decision of the full Council to grant the planning consent it did.

Port Regis is the latest of a series of decisions dealing with apparent bias. It is significant since it addresses directly the issue of Freemasonry in local government decision-making. In the light of this case it appears that all other things being equal, a prejudicial interest is unlikely to arise unless the interests of the particular member lodge are in issue. However, as with all matters of interest, if in doubt declare and comply is always a wise dictum.