The Queen v Broad District Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MUNBY |
| Judgment Date | 16 June 2000 |
| Judgment citation (vLex) | [2000] EWHC J0616-14 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 June 2000 |
| Docket Number | CASE NO: CO/5011/1999 |
[2000] EWHC J0616-14
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
His Hon Mr Justice Munby
CASE NO: CO/5011/1999
MR GAVIN MILLAR Q.C. (INSTRUCTED BY MESSRS STEEL ‡ SHAMASH) Appeared on behalf of the applicant
MR CHRISTOPHER BAKER (INSTRUCTED BY MESSRS EVERSHEDS) Appeared on behalf of the Respondent
Friday 16th June 2000
In this application, Mr Gavin Millar QC moves on behalf of the applicant, Barbara June Lashley, for judicial review of a decision of the Standards Committee ("the Committee") of Broadland District Council ("the Council") on 6 December 1999 that her conduct on or about May 1999 (sic) fell short of the highest standards expected of Councillors. The relief sought is
"1 Declarations that
(1) as at 6 December 1999 the Committee was not discharging a statutory function of the Council within the meaning of section 101 of the Local Government Act 1972 ("the 1972 Act") and was not therefore a lawfully constituted committee of the Council and/or
(2) there was procedural impropriety in the making of the decision
in consequence of which the decision was null and void.
2 Certiorari to quash the decision."
The application is resisted by Mr Christopher Baker of counsel appearing on behalf of the Council.
I am grateful to Mr Millar and Mr Baker for their careful and helpful arguments in a case which raises an interesting and, as it seems to me, important point on which there is surprisingly little direct authority.
THE FACTS
The applicant has been an elected member of the Council since 1995. She is and was at all material times the leader of the minority Labour group on the Council. John Bryant ("Mr Bryant") was at all material times the Chief Executive of the Council and in this capacity acted as the Head of the Paid Service and Monitoring Officer. Two other officers played an important part in events: Trevor Johnson ("Mr Johnson"), the Corporate Services Manager, and Stephen Fennell ("Mr Fennell"), the Personnel and Central Services Manager. I should also mention Martin Thrower ("Mr Thrower"), who as I understand it worked in Mr Johnson's department, and Jennifer Harman ("Miss Harman"), who was Mr Bryant's personal assistant
In February 1999 the Council set up the Committee as a full standing committee of the Council, though at this stage the Committee was only empowered to make "recommendations"to the Council following investigations into allegations of misconduct by Councillors.
On 6 May 1999, which was a Thursday, elections to the Council took place. The result was such that if the Conservative group was to retain control of the Council following the elections, and so avoid a hung council, a former member of that group, Councillor Procter, who had been returned as a member in the elections had to be restored to membership of the group. During the Friday, 7 May, there was doubt about whether this would happen. According to the applicant, Mr Bryantinstructed Mr Johnson to delay the calculation and notification of the statutory committee allocations for the Council, in order to give the Conservative group more time to resolve the question of Councillor Procter's membership of the group.
At the close of business on the Friday Mr Johnson telephoned the applicant to inform her that the committee allocations were not yet available. The applicant took the view that she needed the allocations so as to be able to report to a meeting of her newly elected Labour group that evening and she accordingly pressed Mr Johnson for an explanation as to why the allocations had not been calculated. Eventually he admitted to her that he had been instructed by Mr Bryant to delay the calculations. There is a dispute between the applicant and Mr Johnson as to whether, as he would have it, she "became more aggressive"after this, in questioning whether Mr Bryant was allowed to do this and in pressing for the committee allocation figures. I, of course, am in no position to resolve that dispute. It is, however, common ground, and I should make clear, that no unpleasant or threatening language was used.
On the Sunday, 9 May, the applicant, acting on behalf of her group, sent Mr Bryant afaxed letter questioning the instruction he had given Mr Johnson and asking for a response by 10 am on Monday 10 May. On 10 May Mr Bryant wrote to the applicant, alleging that her conduct towards Mr Johnson on the Friday evening was "totally unacceptable and in breach of the National Code of Conduct"and requiring "a full written apology"to Mr Johnson.
At this point I should interrupt the narrative to explain Mr Bryant's reference to the National Code of Conduct ("the National Code"). Section 31(1) of the Local Government and Housing Act 1989 ("the 1989 Act") provides:
"National Code of Local Government Conduct
The Secretary of State, for the guidance of members of local authorities, may issue a code of recommended practice as regards the conduct of members of such local authorities to be known as the National Code of Local Government Conduct."
The National Code, as its introduction explains, provides, by way of guidance, recommended standards of conduct for councillors in carrying out their duties "and in their relationships with the council and the council's officers"and represents the standard against which their conduct will be judged "both by the public, and by their fellow councillors".
Certain paragraphs of the National Code are of importance in the present case:
"1 Councillors hold office by virtue of the law, and must at all times act within the law. …
2 Your over-riding duty as a councillor is to the whole local community.
3 You have a special duty to your constituents, including those who did not vote for you.
4 Whilst you may be strongly influence by the views of others, and of your party in particular, it is your responsibility alone to decide what view to take on any question which councillors have to decide.
6 You should never do anything as a councillor which you could not justify to the public. Your conduct, and what the public believes about your conduct, will affect the reputation of your council, and of your party if you belong to one.
23 Both councillors and officers are servants of the public, and they are indispensable to one another. But their responsibilities are distinct. Councillors are responsible to the electorate and serveonly so long as their term of office lasts. Officers are responsible to the council. Their job is to give advice to councillors and the council, and to carry out the council's work under the direction and control of the council, their committees and sub-committees.
24 Mutual respect between councillors and officers is essential to good local government. Close personal familiarity between individual councillors and officers can damage this relationship and prove embarrassing to other councillors and officers."
There is no statutory provision for enforcement of the National Code as such against a councillor, whether by the Secretary of State, a local authority or anyone else. Parliament has, however, provided by section 30(3A) of the Local Government Act 1974 ("the 1974 Act"), as inserted by section 32 of the 1989 Act, that where a Local Commissioner has conducted an investigation and reported in accordance with Part III of the 1974 Act and
"is of the opinion -
(1) that action constituting maladministration was taken which involved a member of the authority concerned, and
(2) that the member's conduct constituted a breach of the National Code of Local Government Conduct,
then, unless the Local Commissioner is satisfied that it would be unjust to do so, the report shall name the member and give particulars of the breach."
I resume the narrative of events.
The applicant did not provide Mr Bryant with an apology but sought advice as to her position. While she was doing so she received a further letter from Mr Bryant dated 12 May 1999 indicating that if he did not receive an apology "for onward transmission"to Mr Johnson by the end of the week he would take the matter further "and, if necessary, refer it as the first item to the new Standards Committee."By a letter of 21 May Mr Bryant said that he had received "other reports"about her conduct towards Council officers and that he intended "to carry out an investigation and report accordingly to the Standards Committee."The letter continued:
"Today, I have issued an instruction to all staff that, for their protection, they are not to have any dealings with you. If you require any information, I request that you contact Mr Bland, Mr Kirby or myself, in writing, and we will ensure that any response is dealt with by the appropriate person in the organisation. With regard to the inspection of planning files relating to your duty as a Councillor, please make an appointment, in advance, in order that arrangements can be made for you to view the files.You are not permitted to enter this building, or the Training Centre, other than to attend Council meetings and you are requested to report to the main Reception on each occasion. I will be recommending to the Standards Committee that these arrangementsare ratified unless the Committee is prepared to consider alternative sanctions against you. As Head of Paid Service, I am not prepared to tolerate any improper behaviour by Members towards Council staff and I have instituted the above actions to prevent any further harassment of individuals."
In fact, Mr Bryant never sought ratification by the Committee of these or any "alternative...
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