Hussain v Sandwell Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 29 June 2017 |
| Neutral Citation | [2017] EWHC 1641 (Admin) |
| Docket Number | Case No: CO/2573/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 June 2017 |
[2017] EWHC 1641 (Admin)
Mr Justice Green
Case No: CO/2573/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Oldham QC (instructed by Weightmans LLP) for the Claimant
James Goudie QC and Ronnie Dennis (instructed by Maria Price of SMBC) for the Defendant
Hearing dates: 3 rd– 4 th May 2017
A. Introduction
(i) Introduction
This case concerns an attempt to prevent a local authority from continuing with an investigation into alleged wrongdoing by elected Council members. It also concerns a claim for a declaration and damages flowing out of the publication of three documents relating to the investigation which are said to be highly damaging professionally and personally to the Claimant and his family.
(ii) The parties
The Claimant is Councillor Hussain. The Defendant is Sandwell Metropolitan Borough Council ("the Authority" or "the Council"). The Council was a Labour controlled Council and the Claimant was an elected Labour member of the Council.
(iii) Overview of the facts
The Claimant is alleged to have been engaged, inter alia, in procuring the sale of Council assets (property) to family friends at a substantial undervalue. He is also alleged to have used his power and influence as a senior politician within the Council to have parking tickets issued to his family expunged.
Documents before the Court refer to a " culture" which pervaded the Authority whereby members were " the bosses" and the Council was " open for business". Documents also refer to members bullying employed officials and officers who were compliant in carrying out the members wishes. In 2014 various allegations were circulating in the press (including on the BBC) and on social media to the effect that there was serial and long standing wrongdoing by elected members especially in relation to the disposal of Council property.
The Audit Committee of the Council commenced an investigation into the conduct of several elected members, including the Claimant. The purpose was to determine whether there was substance in the allegations and, if so, to advise upon the appropriate next steps which could have entailed the making of a complaint under the formal Council's arrangements for investigating allegations of breach of standards by members, or it could have led to a complaint to the police upon the basis that it revealed possible criminality, or the commencement of civil proceedings, or disciplinary proceedings against Council employees. I refer to this investigation as the " pre-formal investigation" because it was not conducted under the arrangements put in place under the Localism Act 2011 (" LA 2011") for the formal investigation of allegations of breaches of the Authorities "Code of Conduct" applicable to elected members. During this pre-formal stage the Council purported to exercise powers conferred upon it pursuant to the Local Government Act 1972 ("LGA 1972").
To assist in the pre-formal investigation an external firm of solicitors was instructed to collect, collate and review the documentary evidence, to establish facts, and to formulate advice as to the appropriate action to take. The exercise included the conducting of voluntary interviews with relevant members. The solicitors interviewed the Claimant upon two separate occasions about allegations made against him. The interviews were recorded and transcripts made.
Regrettably, towards the end of the process, the solicitor made some personal and derogatory observations about the Claimant and his family to a Council Official (the Chief Executive). This caused the Chief Executive to address whether it was proper to continue with the external lawyers given the risk of bias. Ultimately, it was decided that, given the advanced stage of the solicitor's investigation, the work should be completed but that all the evidence and the resultant report should then be submitted to Leading Counsel for independent and objective advice on the merits of the investigation, the implication of the solicitor's derogatory comments, as to whether the solicitors report should be published, and as to appropriate next steps.
The solicitor's report was presented to the Council in April 2016. Leading Counsel was instructed and he advised in May 2016. The gist of the advice was that there was a serious case to be met by the Claimant and that the solicitor's report and the Opinion should be placed into the public domain to address criticisms then being made in the press that the Authority was suppressing wrongdoing and not taking its investigatory obligations seriously. Counsel also advised that the formal arrangements under the LA 2011 for investigations into alleged breaches of the member's Code of Conduct should now be initiated. Leading Counsel considered that the strongest cases for a formal investigation were the allegations that (a) the Claimant had procured the sale of council property (some toilets) to a person connected to him at a substantial undervalue and (b) that the Claimant had used his position to have parking tickets issued to family members expunged.
This led the Chief Executive to initiate the formal investigatory procedures under the LA 2011. The investigation got underway. The Council's Monitoring Officer instructed two members of the Legal Service to act as Investigating Officers. The Claimant agreed to be interviewed as part of the process.
At about this time elections to appoint a new Leader of the Council occurred. Several members indicated that they would stand for election. This included a member who was a subject of the investigation (Councillor Jones). It is argued, by reference to contemporaneous press coverage, that certain Labour candidates (in particular Councillor Eling) used the press to promote their candidature for Leader. The ongoing investigations became a " political" issue with Councillor Eling, who was standing against Councillor Jones, pressing for publication of the solicitor's report and the Opinion and continuation of the investigation. The submission is now made that this was to undermine the position of Councillor Jones and that the decision by the Council to continue with the investigation and to publish the solicitor's Report and the Opinion was politically motivated.
Also at this time the Council indicated to the Claimant that it intended to publish the solicitor's report and the Opinion in accordance with Leading Counsel's advice. This led the Claimant to seek permission to apply for judicial review and an order prohibiting publication. Permission was refused by Mr Justice Cranston. On the day of the refusal the Council placed the solicitors report and the Opinion into the public domain. Later they also placed a report of the Council's Audit Committee into the public domain. Subsequently the Court of Appeal granted permission to claim judicial review. By this point in time the application for an injunction to restrain publication was academic.
The Council's investigation into the allegations has now been stayed pending the outcome of this judicial review. The stay covers the matters that Leading Counsel identified as warranting investigation but also various other allegations, also involving property transactions, which are said to have occurred in the late 1990's and which also involve the Claimant. The stay prevents the reference of all the allegations to the Council's Standards Committee which is the body convened to hear and adjudicate upon allegations of breach of duty by members.
(iv) Overview of the Grounds
In this claim the Claimant has launched his attack deploying a wide variety of grounds which, broadly, challenge: (i) the power of the Council to conduct both formal and informal investigations of alleged wrongdoing by members under the LGA 1972 and the LA 2011; and (ii), the publication of the solicitor's report, Opinion and Audit Committee Report. I have grouped the various grounds under these headings. They are as follows.
(v) The power of the Council to conduct formal and informal investigations of alleged wrongdoing by members under the LGA 1972 and the LA 2011
The grounds under this head may be summarised as follows:
a) Ground 1 – Bias: The investigation is infected by actual or perceived bias.
b) Ground 2 – Investigation politically motivated: The investigation was politically motivated and thereby pursued for an improper purpose and/or was irrational.
c) Ground 3 – Investigation irrational: The continuation of the investigation in the light of the evidence of bias was irrational and/or Wednesbury unreasonable.
d) Ground 4 – Investigation ultra vires: There was no lawful power to investigate alleged misconduct pre-dating the coming into effect of the LA 2011 (1 st July 2012).
e) Ground 5 – Section 151 LGA 1972: The Authority acted unlawfully under Section 151 and it is impermissible to rely upon the safe harbour provisions of the LA 2011.
f) Ground 6 – Investigation oppressive: The matters under investigation are stale and the continuation of the investigation is oppressive and unreasonable.
g) Ground 7 – Investigation process has been pre-determined and usurped: The investigatory proceedings are unlawful because the Investigating Officer appointed by the Monitoring Officer in her report made " findings" of breach by the Claimant and thereby she predetermined the outcome and usurped the adjudicatory function of the Standards Committee.
(vi) Publication of the solicitor's report, Opinion and Audit Committee Report
The grounds under this head may be summarised as follows:
a) Ground 8 – Publication unlawful: Publication was a breach of the Data Protection Act 1998 (" DPA 1998") and/or ...
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