Ambit of Code of Conduct

May 23rd, 2018

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 the Localism Act 2011 (“the 2011 Act”).  Cockerill J held that the Council by doing so acted ultra vires. It was contrary to the intention of Parliament as expressed in the 2011 Act to run a process in tandem with or as an alternative to the Code of Conduct process envisaged by the 2011 Act: Judgment, paragraph 103.
Cockerill J said:-

“104. In the first place there is the wording of the Act … the following points seem to me to be clear:

i) S. 27(3) makes clear that a parish council’s systems are to be the same as those of a superior authority, effectively by the process of adoption of those systems. There is no “two-track” system for smaller authorities;

ii) S. 28(6) makes the provision of two sets of arrangements mandatory: arrangements as to investigations of Code of Conduct breaches and arrangements as to making decisions on allegations which have been made;

iii) Under s. 28(7) the latter but not the former must include “at least” one independent person whose role is to provide views (which must be taken into account) to the authority before they take any decision on an allegation;

iv) The authority may also consult that independent person generally in relation to an allegation (but has no obligation to do so);

v) Section 28(4) is susceptible of being read as a broad obligation to refer all allegations under the code of conduct process. However in my view, in the context of the reference to “dealt with” in the first part and the wording of the second part of the section, it is best seen as directed to established breaches and remedies. It imports that a council may not deal with an established breach (eg. as to conflicts of interest) simply by striking down the decision affected by it;

vi) Section 28(11) makes clear that some action may be taken in relation to established breaches;

vii) The same section also indicates that action may be taken in respect of a finding where the investigation was made under different arrangements to those contemplated by sub-section (6) ie under some arrangements which are not the formal investigation process which a council has to have in place.

105.   As will be apparent both from the recitation of the section above and these points as to their meaning, the section is carefully structured and introduces arrangements for operations under a   mandatory code. Some of those provisions are themselves mandatory. This provides a strong indication that the system which prevailed prior to the introduction of the Act is intended to be affected and not to continue unchanged.”

Cockerill J stated at paragraphs 108/109 that it was implicit that some change was intended to the regime which was previously in operation, and that this starting point is of some importance    when one comes to examine the cases.

She distinguished Hussain v Sandwell MBC (2017) EWHC 1641 (Admin).  That was focussed (paragraph 124) on a different issue – informal pre-investigation. At paragraph 129, she set out a four stage process:-

“(i) the making of an allegation (ii) (optionally) a non-formal investigatory or mediation stage or a pause pending other relevant steps being taken (eg. criminal proceedings) (iii) a formal stage, involving an independent person, leading to a decision on breach (iv) (if breach is found) a formal stage, again involving the independent person, dealing with action.”

She concluded:-

“130. What matters for present purposes however is that 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….”

Comments are closed.