Predisposition or predetermination: where the line falls

Predisposition and predetermination are often treated as the same risk, but the law draws a sharp line between them. A 2024 Court of Appeal judgment shows where that line actually falls, and what evidence would be needed to cross it.

What is the difference between predisposition and predetermination?

Predisposition is a preliminary view. A decision-maker who enters a process favouring one outcome but remains open to argument is predisposed, and that is lawful. Predetermination describes something different: the state of a decision-maker who has effectively already decided, whose mind is closed to contrary evidence, and whose engagement with the formal process is a formality rather than a genuine exercise of judgment.

The distinction sounds simple. In practice, it is difficult to assess, which is why most predetermination challenges fail.

The leading authority is Lewis v Redcar and Cleveland Borough Council [2010] UKSC 11. The Supreme Court rejected a planning challenge on the ground that councillors had publicly supported a proposal before the formal committee process.

The Court held that democratic governance cannot require decision-makers to approach questions without prior views. Elected members are expected to hold opinions. Ministers are expected to have policy positions. What the law requires is that the decision-maker remains capable of changing their mind.

Section 25 of the Localism Act 2011 puts that position on a statutory footing for elected members. It states that a decision-maker is not to be treated as having a closed mind just because they previously indicated a view on the matter.

The provision does not abolish predetermination. The phrase “just because” is significant: prior statements, campaigning activity, and political advocacy do not by themselves establish a closed mind, but other factors in combination with those statements may still do so. The statute reflects the approach Lewis had already established.

What does a 2024 judgment show about where the line actually sits?

Secretary of State for the Home Department v PCC for the West Midlands [2024] EWCA Civ 367 provides a useful modern illustration of how the test is applied and how demanding it is.

The claimant argued that preparatory work undertaken before the consultation concluded showed the outcome had effectively been decided in advance. Officials had prepared draft instruments. Preliminary work had proceeded on the basis of assumed outcomes. The Court of Appeal rejected the challenge.

The Court accepted that officials may prepare for preferred outcomes, that draft instruments may be produced, and that work may proceed on an assumed result. None of those facts, taken together, established a closed mind. The critical question remained whether the decision-maker retained genuine openness and whether the process could still have influenced the final outcome. The evidence did not cross that threshold.

What the case demonstrates is how high the evidential bar actually sits. Not every piece of preparatory work that points toward an outcome evidences predetermination. Courts are looking for evidence that the final decision had become irreversible before the formal process concluded, and that is not easily shown.

What evidence crosses the line, and what does that mean for the decision record?

The authorities identify a consistent set of indicators that, in combination, attract real scrutiny. Statements that the outcome is inevitable. Declarations that objections will make no difference. Consultation run after the substantive decision has effectively been reached. Internal documents showing the result was fixed before representations were received. A decision record that engages with nothing raised in response.

The indicators of lawful predisposition are equally consistent: a provisional view, support for a proposal, manifesto commitments, prior public statements, and evidence of engagement with contrary arguments. Island Farm Development Ltd v Bridgend CBC [2006] EWCA Civ 1138 makes this plain. Previous support, prior statements, and political commitment are not enough. The relevant question is whether the decision-maker retained the capacity to reconsider.

Predetermination cases frequently turn not on public statements but on documentary evidence: committee reports, officer reports, internal emails, minutes, and decision notices. Courts read those materials asking one question: do they reveal an outcome that had effectively become fixed before the formal process was complete?

This is where organisations are most exposed. A decision report that analyses consultation responses, explains where the approach was adjusted and where it was not, and gives reasons for both, evidences an open process.

A report that simply restates the original position without engaging with anything raised in response invites a different inference. The discipline required is not neutrality. It is a demonstrable willingness to be persuaded, evidenced in the record of how the process was actually conducted.

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