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.
Councillor Hussain’s claim for judicial review was dismissed. Green J ruled that the Council had “ample power” (for example under Section 151 of the Local Government Act 1972) to conduct the initial pre-formal investigation into allegations of serious misconduct. He also rejected the submission that the Council did not have the power to investigate under LA 2011 any alleged misconduct occurring prior to the coming into force of LA 2011 in July 2012. There was no amnesty for serious misconduct. An allegation submitted to formal investigatory arrangements can cover conduct pre and post-dating the coming into effect of LA 2011. The Code that will then govern the conduct being investigated will be that operative at the time of the behaviour in question. Any investigation which occurs will always be subject to an overriding principle of fairness.
Green J also rejected complaints that the Council had erred by publishing the Report of the pre-formal investigation. There is an important public interest, with respect to allegations against a Councillor, in openness and transparency. Both go hand in glove with accountability. There was no breach of DPA 1988 or ECHR Article 8. Public confidence in financial probity is very important.
Green J further rejected allegations of causative actual and apparent bias and political motivation. He reached a clear conclusion and ruled that the Council’s procedures can continue.