THE relevant facts of R. (The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets [2025] UKSC 11 are deceptively simple. The defendant local authority’s five-member development committee deferred consideration of a planning application to a later meeting at which, due to intervening changes in the committee’s composition, only three of the original five members were present. Because standing orders precluded voting by members not present at the first meeting, only the original three members voted – by a majority of two to one in favour of the application. The claimant, which objected to the planning application, argued that if all, rather than just the original, members of the committee had been allowed to vote, the outcome might have been different and that the standing order preventing new members from voting was unlawful. The Supreme Court disagreed.

Central to the case were three statutory provisions. First, section 106 of the Local Government Act (“LGA”) 1972 authorises councils to make standing orders concerning the “quorum, proceedings and place of meeting” of its committees. Second, Schedule 12, paragraph 42 of the LGA permits councils – “subject to the provisions of this Act” – to “make standing orders for the regulation of their proceedings”. Third, Schedule 12, paragraph 39 sets out the default position that “all questions coming or arising before a local authority shall be decided by a majority of the members of the authority present and voting thereon at a meeting of the authority”, with a “second or casting vote” for the chair in the event of a tie. The key question for the court was whether – against the background of the general terms in which section 106 and Schedule 12, paragraph 42 authorise local authorities to make standing orders – the defendant council had acted lawfully by making a standing order that limited councillors’ ability to vote in certain circumstances.

Faced with such a question, there are at least two lenses that might be applied. The first is rationality or reasonableness review. Although, in its traditional guise, such review permits judicial intervention only in relatively extreme circumstances, it has long been established that more searching scrutiny may occur under the umbrella of rationality review if fundamental rights are at stake. Giving the only judgment in Spitalfields, Lord Sales (at [46]–[48]), invoking the judgment of Sedley L.J. in R. v Flintshire County Council, ex parte Armstrong-Braun [2001] L.G.R. 344, held that councillors have an “entitlement”, not a “right”, to vote, but further held that this did not preclude the application of heightened-scrutiny rationality review. In doing so, he acknowledged (at [53]) the “importance of the democratic principle that a councillor should be able to represent their constituents … by voting on matters affecting them” and that close scrutiny of a standing order impeding that principle was therefore appropriate. This is welcome recognition of the fact that circumstances that do and do not warrant such scrutiny are described other than by a binary distinction between cases that do and do not involve rights, and is of a piece with the approach recently set out by Chamberlain J. in his incisive judgment in KP v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin). Having concluded that heightened-scrutiny review was appropriate notwithstanding that rights per se were not in play, Lord Sales held that the standing order in question could survive such scrutiny. It was a reasonable way of maintaining the quality of decision-making and public confidence in the process, bearing in mind that only councillors present at all relevant meetings would have the benefit of (among other things) oral representations made by the applicant.

The second lens consists of the principle of legality, which was classically stated by Lord Hoffmann in R. v Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115, 131: “In the absence of express language or necessary implication to the contrary, the courts … presume that even the most general words were intended to be subject to the basic rights of the individual.” Whereas rationality review is concerned with whether extant legal authority has been lawfully exercised, the principle of legality, being one that shapes the interpretation of legislation, goes to whether, in the first place, authority exists to commit the administrative act in question. Lord Sales, however, considered the principle of legality to be inapplicable in Spitalfields. That principle, he said (at [72]), facilitates “radical interpretive surgery” and must therefore have “a narrow application”. Its inapplicability in the present case followed from the fact that, in Lord Sales’s view (at [72]), no “established fundamental right or legal principle” was in play. The relevant statutory provisions therefore fell to be construed in the normal way, rather than through the lens supplied by the principle of legality, from which it followed that the general language employed by them was sufficient to authorise the making of the standing order that had prevented some councillors from voting.

Lord Sales’s analysis prompts two comments on the nature and scope of the principle of legality and its relationship with heightened-scrutiny rationality review. The first concerns what norms are, and ought to be, capable of triggering the application of the principle of legality. In this regard, Lord Sales’s judgment is somewhat elliptical. In particular, it is difficult to reconcile (on the one hand) his view (at [50]) that councillors’ entitlement to vote, not being stated by the LGA or its predecessors, “was a feature of the common law of corporations” that remains implicit in the current legislation with (on the other hand) his view (at [70]) that the principle of legality was inapplicable because the relevant entitlement “is not an established right recognised by the common law outside the statutory regime of which it forms part”. Equally questionable is the underlying premise that the common law is the exclusive source of rights and principles capable of triggering the principle of legality. In that regard, Lord Sales prayed in aid Moohan v Lord Advocate [2014] UKSC 67, [2015] A.C. 901, in which, with the possible exception of Lord Kerr, the Supreme Court deprecated the notion of a common law right to vote in elections on the ground that, as Lady Hale put it (at [56]), the right of universal suffrage “has been the creation of Parliament”. Yet the notion that a right’s historical genesis in statute excludes it in perpetuity from the ambit of the principle of legality is both normatively dubious and in tension with other Supreme Court jurisprudence such as Osborn v Parole Board [2013] UKSC 61, [2014] A.C. 1115, in which Lord Reed sketched a notably more porous relationship between rights acknowledged at common law and those legislated into existence by statute.

Second, the judgment in Spitalfields arguably seeks in further respects to draw bright lines where they are inapposite. We have already noted that Lord Sales acknowledged the applicability of heightened-scrutiny review. Such review, as the judgment of Chamberlain J. in KP makes clear, operates on a variable basis, the normative force of the right or principle in play informing the intensity of review. Against that background, it is difficult to see why a similar approach ought not to apply to the principle of legality, yet no such flexibility can be accommodated by the all-or-nothing approach adopted in Spitalfields. According to Lord Sales, either a given norm is or is not important enough to make the principle of legality applicable. Moreover, once triggered, that principle is monolithic, in the sense that we shift from applying no interpretive presumption if the principle does not operate to applying a very strong presumption – facilitating what Lord Sales (at [72]) termed “radical interpretive surgery” – if it does. It was for precisely that reason that Lord Sales considered gatekeeping in respect of the principle of legality to be so important. Yet such an approach seems both artificial and unnecessary. The appropriate question, surely, is not whether a given right or principle is important enough to trigger an interpretive presumption of a single, preordained strength, but what degree of interpretive presumption, if any, should apply in the light of the normative importance of the value that is in play. The courts already consider themselves capable of adopting a comparably gradated approach in relation to heightened-scrutiny review and there is no good reason why an equivalent approach could, and should, not apply in respect of the principle of legality.

This is not an argument in favour of emptying administrative law of doctrinal content in favour of an approach based on nothing more precise than instinct. Rather, it is an argument in support of configuring the relationship between constitutional principle and legal doctrine in a way that does justice to each. A good starting point would be to acknowledge that a common set of normative considerations animate both heightened-scrutiny review and the interpretive principle of legality – and that their doctrinal configuration, both individually and collectively, needs to grapple with the subtle questions of normative ordering that inevitably arise in this context, rather than seeking refuge in inapposite categorical distinctions.