Local authorities – How to lawfully investigate and take action against a councillor accused of misconduct

The High Court Ruling in R(Harvey) v Ledbury Town Council [2018] EWHC1151(Admin) has clarified how a council should deal with complaints against a councillor, and has implications for Town and Parish Councils throughout England. Any local authority will be acting unlawfully if it tries to bypass the Code of Conduct procedure under the Localism Act 2011 when addressing alleged misconduct by councillors.

The Facts

Councillor Harvey had served as a town Councillor since 2011, representing the ward of Ledbury North. She sat on three of the main committees. Complaints of bullying and harassment were made against Councillor Harvey by the Town Clerk and Deputy. The Town Council decided to deal with the allegations under their grievance procedure on the basis that this was more expeditious than the Code of Conduct process under the Localism Act. Councillor Harvey did not accept that this was the appropriate way to deal with the complaints which raised serious accusations. Accordingly she “self-referred” a Code of Conduct complaint to the monitoring officer of Herefordshire Council (the principal authority for the area). Notwithstanding, the Town Council proceeded under its grievance procedure and found against Councillor Harvey. The Town Council imposed sanctions that Councillor Harvey could not serve on any of the Council’s committees, sub-committees, panels or working/steering groups and that she could not represent the Council on any outside body. All bodies affiliated with the Council were to be informed of these actions and the sanctions would remain in place until May 2017, when the matter would be reviewed. Meanwhile, Hereford’s monitoring officer instructed internal investigators and their findings were that there was no basis to support the decision that Councillor Harvey had breached the Code of Conduct. Therefore, the monitoring officer’s decision was that there had been no breach of the code and she would take no further action. However, the Town Council, in spite of the independent investigator’s findings, made a further decision in 2017 to continue the sanctions.

Councillor Harvey bought judicial review proceedings on three grounds;

• Firstly, that the Council had acted ultra vires in determining the complaints through their grievance procedure instead of the Code of Conduct procedure.
• Secondly, that the Council’s actions were substantively unfair and in breach of Article 10 ECHR.
• And thirdly, that the procedure the Council followed was in itself procedurally unfair.

Cockerill J found for Councillor Harvey on all three grounds. It is the first ground, namely that of ultra vires, that is of key significance for local authorities.

The Law and the Judgment 

Section 28 of the 2011 Localism Act sets out detailed provisions for the Code of Conduct process. The Town Council’s position was that the true question was whether the provisions of the Localism Act prohibited it from instigating proceedings under their grievance procedure where the issue was a matter involving internal relations between its employees and staff. The Town Council stated that they were not prohibited.

However, Cockerill J did not uphold the submissions put forward by the Town Council that there was a general power to run a grievance procedure process in tandem with, or as an alternative to, the Code of Conduct process. Cockerill J decided that she was entirely confident that this could not be the case because to do so would be contrary to the intention of Parliament. In the judgment, Cockerill  J examined previous authorities of R (Taylor) v Honiton Town Council and Hussain v Sandwell Metropolitan Borough Council.  Cockerill J found that Section 28 of the Act contemplates a four-stage process: 

1. the making of an allegation
2. (optionally) a non-formal investigation or mediation stage or a pause pending other relevant steps being taken (eg criminal proceedings being taken)
3. a formal stage involving an independent person leading to a decision on breach
4. (if breach is found) a formal stage, again involving the independent person, dealing with action. 

She emphasised that it was important not just at the sanction stage but also at the decision-making stage (breach finding), that an independent person must be involved and consulted.

Comments 

The judgment clearly answers the question as to how the Localism Act is to operate, ensuring that decisions on councillors’ actions and the imposition of sanctions must be dealt with independently of the local authority. The key message from the case is that any local authority will be at risk if it departs from the procedures set out in the Localism Act and tries to discipline councillors. The full judgment is essential reading for all local authority monitoring officers. 

Since the Localism Act turned the previous Standards regime upside down and made it virtually toothless in terms of sanctions, there have been very few cases. However, despite the statements Ministers made at the time about the DPI regime resolving the issues, we all know that it doesn’t go near what very many of the real problems are, and councils still struggle to get some members to behave.   

So what does this case mean practically for Monitoring Officers and those advising Councils on Standards matters? The first thing is to check that what you have in your Code and in your arrangements, actually complies with what the Localism Act allows you to have there; some don’t. For example, “Purporting to act as a councillor” is a good one; I don’t think that there has been a case on that yet, for example. When you do have a case against a member, follow the procedure in your arrangements and don’t let yourself be persuaded that a standards case even where it might involve allegations of bad behaviour towards officers, can be mixed up with grievance proceedings. Or anything else.

If it’s a standards case it involves a breach of your Code of Conduct. And the only sanctions are those available for a breach of the Code of Conduct. So check your Code; check and then observe your arrangements; and follow them. Simple really!

Further information

Anthony Collins Solicitors instructed and acted for Cllr Harvey. If you require assistance with governance issues that this judgment raises, please contact Claire Ward.

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