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:- Read more »

The Committee on Standards in Public Life has on 29 January 2018 initiated a review of and consultation upon local government ethical standards, for responses by 18 May 2018. The consultation questions are: Read more »

On 18 September 2017 CLG issued a public Consultation Paper, for response by 8 December 2017, on proposals for updating prospectively the Local Government Act 1972 Section 80 and other criteria disqualifying individuals from being elected, or holding office, as a local authority member or co-opted member or directly elected mayor or member of the London Assembly. Anyone given an Anti-Social Behaviour Injunction or a Criminal Behaviour Order under the Anti-Social Behaviour, Crime and Policing Act 2014, or added to the Sex Offenders’ Register under the Sexual Offences Act 2003, would no longer be able to hold office. Those subject to a Sexual Risk Order would not be disqualified.

In Hussain v Sandwell MBC (2017) EWHC 1641 (Admin) the Council had conducted a “pre-formal investigation”, i.e. an investigation not conducted under the “arrangements” put in place under the Localism Act 2011 (“LA 2011”) for the formal investigation of breaches under the Code of Conduct applicable to elected Members. Read more »

In Taylor v Honiton Town Council [2017] EWHC 101 (Admin) the Court was required to determine costs following an application by Councillor Taylor for judicial review of a decision by the Council to impose sanctions upon him for a breach of its Code of Conduct.  The Council offered to abandon the sanctions and pay his costs shortly after the issue of proceedings. The Court ordered that his costs incurred before the date of the offer should be paid to him by the Council, but that the Council’s costs incurred thereafter should be paid to the Council by him.  He should have accepted the offer.  He achieved nothing of value after rejecting it.  He did no better in Court. His pursuit of the proceedings was not characterised by a genuine attempt to resolve a genuine grievance. Edis J said: Read more »

It is proportionate to a significant breach of the Code of Conduct to require the member in breach to undertake training in the meaning and application of the Code: Taylor v Honiton Town Council and East Devon District Council (2016) EWHC 3307 (Admin). Edis J also held that the duties of investigation of and decision upon allegations against members of the Town Council fell upon the District Council pursuant to the Localism Act 2011 and arrangements thereunder, including independent persons.

Section 50(2) of the Local Government Act 2000 requires a Model Code to be issued by Order as regards the conduct which is expected of members, and co-opted members, of “relevant authorities” (as defined) in Wales. These are County Councils, County Borough Councils, Community Councils, Fire and Rescue Authorities and National Park Authorities.  There was duly made the Local Authorities (Model Code of Conduct) (Wales) Order 2008, S.I. 2008/788 (W.82), (“the 2008 Order”).  The Schedule to the 2008 Order sets out such a Model Code of Conduct.

This is now amended by the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016, S.I. 2016/84 (W.38), (“the 2016 Order”), coming into force on 1 April 2016. The 2016 Order recites that the Welsh Ministers (i) have carried out the requisite consultation and (ii) are satisfied that the amendments are consistent with the principles specified in the Conduct of Members (Principles) (Wales) Order 2001, S.I. 2001/2276.

Article 2 of the 2016 Order amends the following paragraphs of the Model Code set out in the Schedule to the 2008 Order:

paragraph 1(1), by inserting a definition of “register of members’ interests”;

paragraph 1(2), by inserting a definition of “proper officer” and providing clarification with regard to references to Standards Committees in relation to a Community Council;

paragraph 3(a), by omitting the reference to police Authorities;

paragraph 6(1)(c), by removing the requirement for members to report potential breaches of their Code of Conduct to the Public Services Ombudsman for Wales;

paragraphs 11(4), 15(2), 16(2) and 17, by transferring some functions from Monitoring Officers to the proper officers of Community Councils:

paragraph 12(2)(b)(iv), to reflect the new provisions contained in Part 8 of the Local Government (Wales) Measure 2011 in relation to allowances and payments;

paragraph 14, by inserting new sub-paragraphs (2A) and (2B) which permit members to submit written submissions to a meeting which is dealing with a matter in respect of which a member has a prejudicial interest: written submissions are permitted only in those circumstances in which a member would otherwise be permitted to make oral representations to a meeting in relation to a matter, and if the member’s authority adopts a procedure for the submission of written submissions, members must comply with that procedure;

paragraph 15 is restated. The restatement clarifies that any interest disclosed, whether that interest is disclosed in accordance with paragraphs 11 or 15 of the Model Code, should be registered in the authority’s register of members’ interests, by giving notification to the Monitoring Officer, or, in relation to a Community Council, to the proper officer of that authority.

Article 2 of the Order omits paragraph 10(2)(b) of the Model Code set out in the Schedule to the 2008 Order. This clarifies that a member of a relevant authority is not to be regarded as having a personal interest in a matter when making, or participating in, decisions on behalf of the authority simply for the reason that the business being considered at the meeting affects that member’s ward.

The Welsh Government has issued a Consultation, for response by 10 January 2016, seeking views on the contents of two Statutory Instruments, both to be made under Part III of the Local Government Act 2000, in relation to the conduct of councillors in Wales.  They are the Local Government (Standards Committees, Investigations, Dispensations and Referral) (Wales) Regulations 2016 and the Local Authorities (Model Code of Conduct) (Wales) (Amendment) Order 2016.

The draft Code Amendment Order amends paragraph 15(2) of the Model Code to put it beyond doubt that all personal interests disclosed under paragraph 11 of the Code, not just those financial and other interests falling within a category mentioned in paragraph 10(2)(a), should be entered in the register of members’ interests. The draft Code Amendment Order omits from the Model Code the requirement to report a potential breach to the Ombudsman.  The requirement to report a breach to the Monitoring Officer is retained. This does not prevent a member from quite properly reporting a potentially serious breach of the Code to the Ombudsman.

Paragraph 10(2)(b) of the Model Code provides that a member has a personal interest in a matter if a member of the public might reasonably perceive a conflict between their role in taking a decision on that matter on behalf of the authority as a whole, and their role in representing the interests of constituents in their ward or electoral division, as appropriate. This aspect of the Code has given rise to unintended consequences in its practical application. The equivalent provision in the 2001 Model Code of Conduct was framed so as to apply to an executive member acting alone in taking a decision on behalf of the authority. The wider wording of the provision in the 2008 Code has been read by authorities as applying to members when acting collectively, e.g. on a planning or licensing committee, and has been seen as potentially precluding members from participating in any decisions affecting their ward.  Paragraph 10(2)(b) is also potentially in conflict with Section 25 of the Localism Act 2011, which aims to clarify the law covering predetermination in England and Wales.

The draft Code Amendment Order omits paragraph 10(2)(b) from the Model Code in order to overcome the practical difficulties encountered with respect to constituency interests.  However, a member taking a decision on a matter should keep an open mind until they are in full possession of all relevant facts and act objectively and in the public interest in accordance with paragraph 8 of the Model Code.

 The draft Standards Committee Regulations amend the Standards Committees (Wales) Regulations 2001, SI 2001/2283, the Local Government Investigations (Functions of Monitoring Officers and Standards Committees) (Wales) Regulations 2001, SI 2001/2281, and the Standards Committees (Grant of Dispensations) (Wales) Regulations 2001, SI 2001/2279.  There are amendments to facilitate the establishment and operation of Joint Standards Committees; a change to the term of office of local authority members of Standards Committees; changes in relation to the publication of misconduct reports; provision for the referral of misconduct reports to another authority’s Standards Committee; limitation upon the period of suspension imposed by a Standards Committee so that it does not extend beyond the end of a member’s term of office; a proposed procedure for an application for permission to appeal a Standards Committee determination to the Adjudication Panel for Wales; and provision for the referral of a dispensation application to another authority’s Standards Committee.

Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin) is a statutory appeal to the Administrative Court in Wales from the Adjudication Panel for Wales.  It concerns a long standing Councillor about whose conduct a complaint was submitted to the Ombudsman by all Flintshire County Council’s Senior Officers.  The Ombudsman referred to the Panel alleged breaches of the Council’s Codes of Conduct.  A Case Tribunal found 14 breaches established and imposed a sanction of disqualification.

Mr Heesom challenged the Tribunal’s decision on three grounds, namely:-

1. The Tribunal erred in adopting the wrong standard of proof, i.e. the civil as opposed to the criminal standard;
2. The Tribunal erred in its findings as to breaches of the Codes of Conduct; and
3.  Insofar as its findings of breach were properly made, the Tribunal erred in finding that they were such as to justify the sanction imposed.

   The appeal thus gives rise to the following important issues:-

1. The appropriate standard of proof in an adjudication by a Case Tribunal of the Adjudication Panel for Wales; and
2. The scope of and legitimate restrictions to a politician’s right of freedom of expression under Article 10 of the European Convention for Human Rights (“the ECHR”) and at common law, particularly in relation to officers’ rights and interests which might be adversely affected by the purported exercise of those rights.

   As to (1), Hickinbottom J held that the appropriate standard of proof was the civil standard.

   As to (2), Hickinbottom J formulated the following propositions:-

1. The enhanced protection accorded to freedom of expression in the political sphere applies to all levels of politics, including local.
2. Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated.  Whilst, in a political context, Article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false.
3. Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to “wider limits of acceptable criticism”. They are expected and required to have thicker skins and have more tolerance to comment than ordinary citizens.
4. Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press; because the right protects, more broadly, the public interest in a democracy of open discussion of matters of public concern. Thus, so far as freedom of speech is concerned, many of the cases concern the protection of, not a politician’s right, but the right of those who criticise politicians.
5. The protection goes to “political expression”; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views, but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others. The cases are careful not unduly to restrict the concept; although gratuitous personal comments do not fall within it.
6. The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis. What amounts to a value judgment as opposed to fact will be generously construed in favour of the former; and, even where something expressed is not a value judgment but a statement of fact (e.g. that a council has not consulted on a project), that will be tolerated if what is expressed is said in good faith and there is some reasonable (even if incorrect) factual basis for saying it, “reasonableness” here taking account of the political context in which the thing was said.
7.  As Article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under Article 10(2), the determinative question is whether the restriction is “necessary in a democratic society”. This requires the restriction to respond to a “pressing social need”, for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
8. As with all Convention rights that are not absolute, the State has a margin of appreciation in how it protects the right of freedom of expression and how it restricts that right.  However, that margin must be construed narrowly in this context. There is little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest.
9. Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the Court.

As regards the position of non-elected public servants, Hickinbottom J observed as follows:-

1. They are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation, it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration.
2. Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which non-elected public servants do not.
3. Where critical comment is made of a non-elected public servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that public servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression.

In R (Dennehy) v Ealing LBC (2013) EWHC 4102 (Admin) a Councillor’s application for permission to apply for Judicial Review of a decision by a Standards Committee that he had breached the Council’s Code of Conduct failed.  The Committee had found that a post on the Councillor’s blog about Southall residents failed to treat others with respect and brought the Council and the office of Councillor into disrepute.  The Judge concluded that the decision and the sanctions imposed were plainly a proportionate interference with the Councillor’s ECHR Article 10 rights in the light of the other interests identified in the ECHR.  The sanctions were to request an apology and the publication of a neutral notice of the decision on the Council’s website and in the local newspaper.  The Judge noted that the comments about Southall residents were contained in a separate section of the blog from those which raised legitimate topics of political debate. “They were not the expression of a political view, but an unjustified personal and generic attack on a section of the public. The subjects of the speech were not politicians but ordinary members of the public and, as such, the comments did not attract the higher level of protection applicable to political expressions and the comments would plainly have undermined confidence in local government, the preservation of which is a recognised aim of the code”.