R Elizabeth Harvey v Ledbury Town Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMrs Justice Cockerill
Judgment Date15 May 2018
Neutral Citation[2018] EWHC 1151 (Admin)
Docket NumberCase No: CO/3680/2017

[2018] EWHC 1151 (Admin)

TN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Cardiff Civil Justice Centre

Cardiff, Wales

Before:

The Honourable Mrs Justice Cockerill

Case No: CO/3680/2017

Between:
The Queen (on the application of) Elizabeth Harvey
Claimant
and
Ledbury Town Council
Defendant

and

Herefordshire County Council

and

Andrew Harrison
Interested Party

Mr Tom Cross (instructed by Anthony Collins Solicitors LLP for the Claimant

Ms Lisa Busch Q.C. (instructed by Winkworth Sherwood LLP for the Defendant

Hearing dates: 17 April 2018

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mrs Justice Cockerill Mrs Justice Cockerill

Introduction

1

This claim is brought by Councillor Elizabeth Harvey (“Cllr Harvey”). She is a local councillor who represents the constituents of Ledbury North in Herefordshire on Ledbury Town Council (“the Council”).

2

In this application for judicial review, she challenges a decision of the Council made on 11 May 2017 (“the Decision”) continuing and enlarging a number of restrictions first placed on her in May 2016 following a complaint about her conduct by the Town Council's then Clerk and Deputy Clerk (“the 2016 Decision”). I should make clear at the outset that the proceedings before me have nothing to do with party politics. I have not asked and do not know what party (if any) Cllr Harvey represents.

3

Also I note here that this, being a substantive judicial review hearing, has nothing to do with the merits of the council's decision. What is in issue is whether that decision was defective on one or more grounds of public law review: vires, substantive unfairness and procedural unfairness.

4

Specifically Cllr Harvey's grounds for judicial review are that:

i) The Decision was ultra vires, such matters being within the ambit of the Code of Conduct for Councillors, which was found not to have been breached.

ii) In the alternative, it was substantively unfair, being in breach of Article 10 ECHR or substantively unfair at common law; and / or

iii) It was procedurally unfair as regards (paraphrasing somewhat) absence of investigation, absence of identified basis, absence of disclosure to the decision-making body of full evidence, absence of opportunity to respond or to defend herself.

5

This is a substantive hearing, permission having been granted, essentially by consent, by HHJ Allan Gore QC on 3 Oct 2017 who said that Ground 1 was clearly arguable, though expressing some doubts about Grounds 2–3.

6

Cllr Harvey has been represented by Mr Cross of counsel and the Defendant by Ms Busch QC of counsel. Mr Harrison, a fellow councillor of Cllr Harvey, who is also affected by the measures, but who has brought no application of his own, has been an interested party to this judicial review, lodging written submissions outlining the points he wishes to emphasise, but not attending the hearing itself.

7

Cllr Harvey seeks a quashing order and declaratory relief. The Defendant argues that the decision was not ultra vires, in that the actions were rightly not taken pursuant to the Code of Conduct put in place under the 2011 Localism Act and the council had power to act otherwise than through the code, and rejecting the complaints of substantive and procedural unfairness.

The Legal Backdrop to Ground 1

8

Since Ground 1 is very much the primary ground of challenge, and the legal issue of the interrelationship of the relevant statutes forms part of the debate which took place at the time, it is appropriate to outline the legal framework first.

9

There are two strands of legislation in place. The older is the Local Government Act 1972 (“the 1972 Act”) which provides in Part VII of the 1972 Act for miscellaneous powers of local authorities. Section 111 in Part VII provides, inter alia:

“Subsidiary powers of local authorities.

Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions …”.

10

The more modern relevant legislation is the Localism Act 2011 (“the 2011 Act”, enacted against the background of the Nolan Report into Standards in Public Life. In particular:

i) Section 27(1) of the Localism Act 2011 requires a “relevant authority” to “promote and maintain high standards of conduct by members and co-opted members of the authority”.

ii) “Relevant authority” includes a parish council: s.27(6)(d). (It should be noted that legally the Council is a parish council.)

iii) Section 27(2) provides that, “in discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity”.

iv) Section 27(3) permits a relevant authority that is a parish council to comply with subsection (2) by adopting the code adopted under that subsection by its “principal authority”. “Principal authority”, in relation to a parish council, means the county council for the county that includes the parish council's area: s.29(9)(c). This is, in the present case, the Herefordshire Council (“the LA”). The Council is a parish council for that purpose and, in adopting the Code of the LA, complied with its obligation under s.27(2).

v) A county council in England (such as the LA here) is also a “relevant authority”: s.27(6)(a)). Cllr Harvey is a “member” of the Parish Council for the purposes of s.27.

11

Section 28 of the 2011 Act is the section which makes detailed provision in relation to codes of conduct. In particular:

i) Sections 28(1)-(3) make provision for the contents of codes and are not in issue in this case.

ii) Section 28(4) provides:

“(4) A failure to comply with a relevant authority's code of conduct is not to be dealt with otherwise than in accordance with arrangements made under subsection (6); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code”.

iii) Subsections 28(6)-(9) set out the statutory process for investigating and determining complaints that a member has failed to comply with a code (as distinct from the statutory requirement for a relevant authority to adopt a code).

iv) Subsection (6) provides that:

“(6) A relevant authority other than a parish council must have in place—

arrangements under which allegations can be investigated, and

arrangements under which decisions on allegations can be made”.

v) Subsection (7) states:

“(7) Arrangements put in place under subsection (6)(b) by a relevant authority must include provision for the appointment by the authority of at least one independent person—

(a) whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate, and

(b) whose views may be sought—

(i) by the authority in relation to an allegation in circumstances not within paragraph (a),

(ii) by a member, or co-opted member, of the authority if that person's behaviour is the subject of an allegation, and

(iii) by a member, or co-opted member, of a parish council if that person's behaviour is the subject of an allegation and the authority is the parish council's principal authority.”.

vi) “Independent person” is defined in detail in s.28(8):

“(8) For the purposes of subsection (7)—

(a) a person is not independent if the person is—

(i) a member, co-opted member or officer of the authority,

(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority, or

(iii) a relative, or close friend, of a person within sub-paragraph (i) or (ii);

(b) a person may not be appointed under the provision required by subsection (7) if at any time during the 5 years ending with the appointment the person was—

(i) a member, co-opted member or officer of the authority, or

(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority;

(c) a person may not be appointed under the provision required by subsection (7) unless—

(i) the vacancy for an independent person has been advertised in such manner as the authority considers is likely to bring it to the attention of the public,

(ii) the person has submitted an application to fill the vacancy to the authority, and

(iii) the person's appointment has been approved by a majority of the members of the authority….”.

vii) Subsection (9) provides

“…. “allegation”, in relation to a relevant authority, means a written allegation—

(a) that a member or co-opted member of the authority has failed to comply with the authority's code of conduct, or

(b) that a member or co-opted member of a parish council for which the authority is the principal authority has failed to comply with the parish council's code of conduct.”

viii) Section 28(10) deals with relatives and is not relevant in this case.

ix) Section 28(11) states:

“(11) If a relevant authority finds that a member or co-opted member of the authority has failed to comply with its code of conduct (whether or not the finding is made following an investigation under arrangements put in place under subsection (6)) it may have regard to the failure in deciding—

(a) whether to take action in relation to the member or co-opted member, and

(b) what action to take”.

The LA's Code was set out in the Council's Standing Orders 30(a) and (b)...

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