1. Standards James Goudie QC
27 September 2018

2. The Sandwell Case
3 day Standards Committee Hearing in January 2018: misconduct by elected member proved
Preceded by JR, R (Hussain) v Sandwell MBC (2017) EWHC (Admin)
JR dismissed by Green J
Green J ruled that Sandwell could continue its investigations into allegations of serious misconduct
One of very few judgments on the meaning of LOCALISM ACT 2011, Sections 27/28
Helpful guidance for local authorities and others on the scope of their powers to investigate allegations of Councillor misconduct

3. The challenges (1)
C sought to challenge the continuation of any investigation into allegations against him
GROUNDS:
- Sandwell had acted ultra vires
- Process had been politically motivated or infected by actual or apparent bias

4. The challenges (2)
C also challenged Sandwell’s decision to publish 3 separate reports into allegations against him (“the Reports”) on the grounds that publication breached his rights under:
- ECHR Article 8(1)
- As a data subject under DPA (then DPA 1998)

5. Green J dismissed each of C’s grounds
The Judgment
Green J dismissed each of C’s grounds
Judge held that Sandwell had ample powers to investigate allegations of misconduct against elected members, including allegations that pre- dated LA 2011
Judge ruled that Sandwell’s duty under LA Section 28 to adopt formal “Arrangements” for investigating allegations of misconduct did not preclude it from carrying out investigations other than under those Arrangements

6. The crucial passage
“What the [LA 2011] requires is that once an Authority determines upon a formal inquiry into an allegation of breach of a Code [of Conduct] then it must, prima facie, utilise its formal arrangements. But there is no prohibition on pre-formal inquiries and investigations.”

7. Bias
In relation to actual bias, the Judge recorded that it was common ground that a comment about the C’s family made by the solicitor who produced one of the three Reports was “objectionable and wholly unacceptable”
However, in light of the solicitor’s report and underlying materials taken as a whole, the Judge concluded that the solicitor had not been motivated by any actual bias towards the C. In relation to apparent bias, the Judge found that “a relevant third party might consider that there was a real possibility that the [solicitor’s] Report itself could be affected by bias”
However, there was “no risk” that any such bias could ever “affect a future decision, and decision making process, adopted by the [Council’s] Standards Committee”
This was for a number of reasons, including that any such bias was not on the part of the Council; the Council had sought further, independent advice from Leading Counsel on the solicitor’s report; and the solicitor’s report would not be before the Council’s Standards Committee

8. Conclusion
The Judge also rejected C’s claim of political motivation. He accepted the Council’s evidence, some of which – unusually for judicial review proceedings – had been given during cross- examination, that none of its decisions had been taken for an improper political purpose
In any event, the Judge held that even if he had found that the Council had acted unlawfully, he would not have granted the relief sought by the C. Even in that case, he would have allowed the Council to continue with its procedures, on the grounds that: “none of the alleged breaches would be material or have any real impact on the fairness of the investigatory procedure going forward”; and “the [C] will have a full opportunity to present his case and establish that the allegations against him are to be rejected” at any hearing of the Standards Committee in due course
The Judge also considered, “out of an abundance of caution”, safeguards going forward, and directed that, as indicated by the Council, it would not rely on the solicitor’s report in any hearing before the Standards Committee

9. Publication
In relation to publication of the Reports, the Judge ruled that, “There is an important public interest in openness and transparency both of which go hand in glove with accountability”. This public interest justified publication of the Reports under Article 8(2) ECHR, and meant that publication satisfied the Data Protection Principles under DPA 1998
The Judge ruled however that if he had found a breach of DPA 1998, he would not have refused relief on the grounds that the C could have brought an ordinary Part 7 claim for breach of the Act, rather than an application for judicial review
This was not an adequate alternative remedy, “since it includes relief granted in the High Court of which the Administrative Court is a component part”

10. The Ledbury Case (1)
The main issue in R (Harvey) v Ledbury Town Council (2018) EWHC 1151 (Admin) was an issue as to jurisdiction, namely a dispute between the parties as to whether it was open to the Council to proceed against a member outside its Code of Conduct under LA 2011
Cockerill J held that the Council by doing so acted ultra vires
It was contrary to the intention of Parliament as expressed in LA 2011 to run a process in tandem with or as an alternative to the Code of Conduct process envisaged by LA 2011: Judgment, paragraphs and 108/109
She distinguished Hussain v Sandwell.  That was focussed (paragraph 124) on a different issue – informal pre-investigation
It is not just at the sanction stage, but also at the decision-making (breach finding) stage that an independent person must be involved and consulted

11. The Ledbury Case (2) Cockerill J set out a 4 stage process:
(1) The making of an allegation
(2) (Optionally) a non-formal investigatory or mediation stage or a pause pending other relevant steps being taken (e.g. criminal proceedings)
(3) A formal stage, involving an Independent Person, leading to a decision on breach
(4) A formal stage, again involving the Independent Person, dealing with sanction

12. The Ledbury Case (3)
Cockerill J held that the Council lacked the power formally to investigate, determine or impose sanctions in relation to a misconduct allegation under its Grievance Procedure.
Action taken in response to the allegation (including preventing the Councillor’s contact with particular staff) was ultra vires.
Judge also held that the action taken would in any event have been substantively unlawful (including under the Human Rights Act) and procedurally unfair: the action taken was disproportionate to the conduct alleged and had been imposed following a process in which the Councillor had not meaningfully been able to participate.
All three grounds of the Councillor’s judicial review succeeded.

13. The Independent Person
In Bennis v Stratford-on-Avon District Council, EA/2017/0220, the FTT said (para 29) that details of unsubstantiated complaints against Councillors ought not generally to be disclosed to the world at large under the provisions of FOIA.  The proper approach to such information is to consider the rights of the councillor concerned as a data subject
The FTT however did not consider exemptions under Section 36 of FOIA to prevail. The request for disclosure was of advice that the Council had received when considering the complaint that was not upheld. The advice had been provided to the MO by an Independent Person under LA 2011.  Given that the IP’s views would in any event have become public if a hearing had been directed, transparency prevailed over the risk of disclosure inhibiting the IP’s views

14. Investigations
In Taveta v FRC (2018) REHC 1662 (Admin) Nicklin J said:-
“53. The importance of regulators operating with transparency and openness hardly needs stating. It inspires confidence both in those who are regulated and in the wider public, and it allows areas of concern or weakness to be identified. When a regulator sanctions one of its regulated community, publicity for the sanction (and the reasons for it) promotes the maintenance of standards and protects the public from those whose standards fall below the required level. …”
“68. I reject the submission that Hoffmann La Roche restricts the ambit of the duty of fairness to the
subject of an investigation. The principle is not so limited. Of course, the subject of an investigation, whether under a statutory inquiry or as part of a regulatory process, would have a legitimate expectation that he would be afforded the opportunity to understand what was being alleged against him and to defend himself. But the principle is wider than that. There will be inquiries that do not have an individual as their focus or, as here, where third parties become embroiled in the matters under investigation. Those people may not even participate in the investigation process, but they are just as much in jeopardy if findings of misconduct are made against them in published reports without their having the opportunity to make representations prior to publication. It is that essential unfairness that lies at the heart of the rules of natural justice …”

15. The future
The Committee on Standards in Public Life has initiated a Review of local government ethical standards
A Consultation has been conducted
Responses were due by 18 May 2018

16. “Barristers of the very highest quality”
Legal 500
11KBW is renowned for the outstanding quality of its advice, advocacy and client service. Our barristers are experts in Public, Employment and Commercial Law and lead the field in a number of specialist areas.
“The clerks are absolutely fantastic; they are approachable, friendly and they deliver on time.”
Chambers & Partners
Please get in touch with our team to discuss what you need:
Joint Senior Clerks – Lucy Barbet & Mark Dann
Director of Business Development – Andrea Kennedy
Director of Finance and Administration – Claire Halas
Tel: +44 (0)
Address: 11 King’s Bench