R (Mullaney) v Adjudication Panel for England
| Jurisdiction | England & Wales |
| Judgment Date | 10 February 2009 |
| Neutral Citation | [2009] EWHC 72 (Admin) |
| Docket Number | Case No: 5468/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2009 |
[2009] EWHC 72 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Before : The Honourable Mr Justice Charles
Case No: 5468/2008
The Claimant in person
Miss Samantha Broadfoot (instructed by Solicitors for the Standards Board for England) for the Ethical Standards Officer
Hearing date: 22 November 2008
Charles J :
Introduction
This is a claim for judicial review by the Claimant, Mr Mullaney, of a decision on appeal by an appeals tribunal appointed by the Defendant, the APE. It was set down for a “rolled up” hearing by Cranston J. As is often the case in such circumstances I heard full argument from those present rather than separate arguments first on permission and then on the substance of the review.
Representation
The Claimant who is a councillor on the Birmingham City Council appeared in person and was assisted by an MP (Mr. Hemming—who has clearly had a long standing interest in this case and has assisted the Claimant at its earlier stages).
The ESO (through the Standards Board) was represented by counsel and solicitors who filed helpful bundles and a helpful skeleton argument.
The Defendant (the APE) did not appear but there is a letter in the papers from its President responding to the claim as then presented. At the end of the hearing I directed that the APE was to be given the opportunity of making submissions on a point relating to the sanction imposed by the Appeals Tribunal of the APE and remedy on judicial review. I also gave directions to check that the Defendant and the named interested parties, other than the Ethical Standards Officer, the ESO, had been properly notified, and if not whether they wanted to make any submissions. This resulted in a further response from the President of the APE and comments from the BCC Standards Committee for which I am grateful. I accept that Mr Zaman and his solicitors were contacted and no response has been received from them.
I also gave permission for the Claimant and the ESO to make further written submissions if so advised on the points relating to sanction, the law of trespass and generally. They have done this but in doing so did not ask for a further oral hearing. Unfortunately, and through no fault of the parties, I did not receive all the additional submissions and comments until the last day of the Christmas term.
Preliminary points
The claim relates to the end of a decision making process under provisions of the Local Government Act 2000 (the 2000 Act) concerning the conduct of local government members and employees.
In very broad outline:
i) The decision making chain was an investigation and report by the ESO, a hearing before the BCC Standards Committee (the Standards Committee) followed by an appeal to an appeals tribunal of the APE (the Appeals Tribunal). The hearing before the Standards Committee was an oral hearing and the appeal, at the election of the Claimant, was dealt with on paper.
ii) The matter under investigation was an incident on 2 March 2007 and ensuing events when the Claimant, with others, was responsible for taking a video at, and of, a building known as the Former Moseley Tram Offices owned by Mr Zaman and then publishing that video.
The Appeals Tribunal upheld the decision of the Standards Committee which was that the Claimant was acting in his official capacity and had breached paragraph 2(b) of the relevant Code by failing to treat Mr Zaman with respect, but altered the sanction imposed by the Standards Committee by removing the opportunity for the Clamant to avoid suspension by apologising in terms agreed by its Chairman.
The Claimant challenges the conclusion of the Appeals Tribunal on breach and if, that challenge fails, on sanction.
Relevant Statutory and Other Provisions
The relevant part is Part III. From the terms of the Act, and its legislative history, it is plain that the purpose and public interest that underlies Part III of the 2000 Act is to promote and uphold proper standards in public life (see for example Livingstone v APE [2006] EWHC 2533 Admin at paragraph 34 and Sanders v Kingston [2005] EWHC 1145 (Admin) at paragraph 84).
Section 49 is entitled “Principles governing conduct of members of relevant authorities” and by subsection (1) provides that: “The Secretary of State may by order specify the principles which are to govern the conduct of members and co-opted members of relevant authorities in England “. Birmingham City Council is a relevant authority and the Secretary of State exercised this power by the Relevant Authorities (General Principles) Order 2001 (S1/1401) (the General Principles Order).
Section 50 is entitled “Model Code of Conduct” and by subsection (1) provides that: “The Secretary of State may by order issue a model code as regards the conduct which is expected of members and co-opted members of relevant authorities in England “. Again Birmingham City Council is a relevant authority. Subsection (4) provides that a model code of conduct must be consistent with principles issued pursuant to section 49 and may include provisions which are mandatory. The Local Authorities Model Code of Conduct (England) Order 2001 (SI / 3575) (the Model Code of Conduct Order) was made under s. 50(1).
Section 51 is entitled “Duty of Relevant Authorities to Adopt Codes of Conduct” and by subsection (1) provides that: “It is the duty of a relevant authority before the end of the period of six months beginning with the day on which the first order under section 50 which applies to them is made to pass a resolution adopting a code as regards the conduct which is expected of members and co-opted members of the authority”. Further provisions of section 51 require that the Code of Conduct adopted by the local authority must incorporate any mandatory provisions of the Model Code of Conduct which, for the time being, applies to that local authority.
Section 52 is entitled “Duty to Comply with the Code of Conduct” and by subsection (1) provides that: “a person who is a member or co-opted member of a relevant authority at a time when the authority adopt a code of conduct under section 51 for the time being (a) must, before the end of the period of two months beginning with the date on which the code of conduct is adopted, give to the authority a written undertaking that in performing his functions he will observe the authority's code of conduct for the time being under section 51 “. Failure to give this undertaking means that the person ceases to be a member of the local authority. There are other provisions which require new members of a local authority to undertake to observe the authority's code of conduct as a requirement of them taking up their position.
The General Principles Order contains the following provisions:
“2. Honesty and Integrity
Members should not place themselves in situations where their honesty and integrity may be questioned, should not behave improperly and should on all occasions avoid the appearance of such behaviour.
7. Respect for others
Members should promote equality by not discriminating unlawfully against any person, and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. They should respect the impartiality and integrity of the authority's statutory officers and its other employees.
8. Duty to Uphold the Law
Members should uphold the law and, on all occasions, act in accordance with the trust that the public is entitled to place in them.
10. Leadership
Members should promote and support these principles by leadership and by example and should act in a way that secures or preserves public confidence.”
The mandatory provisions set out in Schedule 1 to the Model Code of Conduct Order, and thus also the relevant Code of Conduct of the Council in this case, include and provide (with my emphasis to highlight provisions that are central to this case) as follows:
“1. (1) A member must observe this Code of Conduct whenever s/he —
(a) conducts the business of the authority;
(b) conducts the business of the office to which s/he has been elected or appointed; or
(c) acts as a representative of the authority,
and references to a member's official capacity shall be construed accordingly.
(2) This Code of Conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity.
2. A member must:
(b) treat others with respect.
4. A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or the authority into disrepute.”
These provisions (with others) set the framework to promote and uphold relevant conduct. As will appear later crucial questions in this case are whether the Claimant was acting in his official capacity and whether in doing so he treated others with respect.
I turn now to the provisions relating to the investigation of complaints and the imposition of sanctions contained in Chapter 2 of Part III of the 2002 Act.
Section 57 establishes the Standards Board for England, the SBE. The Board must appoint employees known as Ethical Standards Officers, ESOs, and issue guidance in matters relating to the conduct of members and co-opted members of local authorities.
Section 58 provides...
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