Public law procedures; disciplining councillors [Harvey v Ledbury Town Council [2018] EWHC 1151]
In addition to some of the headlines we have seen about codes of conduct and discipline within the parliamentary political parties it is worth noting a recent case which considered, and made very clear, the correct process for disciplining local councillors in England.
To recap on some history; for a little over 10 years there was a central body, the Standards Board for England (later known as Standards for England), a non-departmental public body sponsored by the Department for Communities and Local Government and established under the Local Government Act 2000. It was responsible for promoting high ethical standards in local government. It oversaw the nationally imposed Code of Conduct (now abandoned), which covered elected and co-opted members across a range of local authorities. The Board maintained an independent national overview of local investigations into allegations that members' conduct might have fallen short of the required standards. Local authorities had Standards Committees, but in certain cases the Board could directly investigate allegations. It could not impose sanctions on members, but if it considered that further action might be necessary, it referred cases to the Adjudication Panel for England, or to the relevant authority's own Standards Committee for determination, which could include suspension. As part of the 2010 UK quango reforms, the board ceased to function from 2012.
Chapter 7 of the Localism Act 2011 ushered in a new approach, with local authorities (and other bodies eg the National Park Authorities and Fire and Rescue Authorities) having to adopt their own (local) code of conduct and (under s.28(6)) "arrangements" under which allegations could be investigated and decisions could be made. Standards Committees ceased to be compulsory and no sanctions are provided for in the Act, in the event that a member is found to have breached the local authority's code of conduct. The arrangements under s.28(6) must however include the appointment of an independent person whose views must be sought in respect of any allegations under investigation by the authority, prior to any decision being made in respect of those allegations.
Cllr Harvey was a Ledbury town councillor; complaints of bullying and harassment were made against her by the Town Clerk and Deputy. A decision was made to deal with allegations of bullying under a grievance procedure which was considered to be more expeditious than using the process under the authority's Code of Conduct. Cllr Harvey disagreed with this approach and self-referred a Code of Conduct complaint to the monitoring officer of Herefordshire Council (the principal authority for the area).
Ledbury Town Council proceeded under its grievance and appeals procedure, found against Cllr Harvey and imposed various disciplinary sanctions. These sanctions were maintained even after external investigators, instructed by Herefordshire Council’s monitoring officer, found that Cllr Harvey had not failed to follow the Town Council’s Code of Conduct. The successful judicial review case by Cllr Harvey challenged the Town Council's decision to use the grievance and appeals procedure. In particular the case highlighted that the procedure adopted failed to provide the safeguards of an independent person being involved both in the decision as to whether there had been a breach of the Code and in any decision to impose a sanction.
The local authority specific learning point is that the Localism Act procedures have to be adopted and given precedence in formal cases arising from "complaints" which might be considered a breach of the Code of Conduct.
There are however wider considerations raised by the case, including Cllr Harvey's rights to a fair hearing. The Councillor's concerns about the grievance procedure included; a lack of initial investigation, a failure to provide details of the complaint or the content of staff interviews which would form part of the evidence, a lack of an effective opportunity to respond to the complaint or address the decision makers, and a failure to identify the conduct upon which the adverse recommendations/sanctions were based. Paragraphs 165 onwards helpfully restate key principles that a fair procedure requires:
- Complaints to be investigated and precise allegations identified
- Evidence should be clearly identified and disclosed
- The respondent to an investigation should be given an opportunity to respond to the investigatory process
- The response to the complaint should demonstrably engage with the concept of proportionality
These are key qualities that any fair procedure, addressing breaches of a code of conduct should include both in the written procedures and the implementation of their processes.