COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
MR JUSTICE MUNBY
Strand, London, WC2A 2LL
Wednesday 7th February 2001
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE RIX
|THE QUEEN ON THE APPLICATION OF|
|BROADLAND DISTRICT COUNCIL|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Christopher Baker (instructed by Eversheds, Norwich) for the Respondent [Broadland District Council]
Crown Copyright ©
LORD JUSTICE KENNEDY :
"This officer is now on sick leave suffering from stress which I believe can be attributed to your remarks on the telephone to him on Friday. Any further outburst to any member of staff will result in me making a formal complaint to the Council's Standards Committee about your conduct. I expect a full written apology from you to Mr Johnson since, clearly, he was only attempting to do his job."
The fax then dealt with the allocation issue. The Appellant did not apologise, and the only explanation for her silence we have seen is in the witness statement of her solicitor where it is said that she was seeking advice as to her position from the Labour Party. Whilst I recognise the significance of her contention that on the Friday evening she had said nothing of which she need be ashamed, and the fact that without hearing from her Mr Bryant had accepted in full the version of events given by Mr Johnson, it seems to me surprising that she did not at least make the effort to say that if Mr Johnson was upset by anything she had said she was sorry. Had she done so events would probably have taken a different course, and this interesting but expensive and in my judgment wholly unnecessary litigation would have been avoided. Sadly that was not the only missed opportunity in this sorry tale.
"It is becoming increasingly common to hear of incidents of Councillors taking on the self appointed role of criticising members of staff. These incidents involve councillors making derogative remarks to staff, often in front of colleagues, and seeking to undermine the authority of senior managers by expressing disparaging remarks about them to junior members of staff."
The memo went on to point out how difficult it was for staff to respond, and asked Mr Bryant "as Head of Paid Service to investigate this matter and to take appropriate action." He was invited to remind councillors of the Harassment Policy adopted by the Council. The memo made it clear that only "a very small minority of councillors" were the subject matter of complaint, and they were not identified. According to Mr Bryant the memo was preceded by a telephone call from Mr Horspole, but for present purposes I need not refer to the alleged content of that telephone call.
"Further, I have had other reports that you have made derogatory remarks about other members of staff to their sub-ordinates. I have now received a letter from Unison in Broadland about the conduct of Councillors towards members of staff. I intend to carry out an investigation and report accordingly to the Standards Committee.
Today, I have issued an instruction to all staff that, for their own 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 arrangements are 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 to individuals."
That letter did produce a response. On 22nd May 1999 the Appellant, by fax, said that the allegations were without foundation, that she would welcome an independent investigation, that she was taking legal advice, and that Mr Bryant would be hearing from her solicitors shortly.
Mr Bryant acknowledged the letter of 10th June, saying that he would seek advice from the Council's solicitors. Whether the form of investigation proposed in the letter of 10th June would have been a practical way of proceeding I do not know, but it does seem to have focused on the propriety of the conduct of the Councillor without any reference to the alleged affect of that conduct on the Council's employees. In addition to acknowledging the letter of 10th June Mr Bryant instructed Mr Fennell, the Council's Personnel and Central Services Manager, to prepare statements and a report for onward transmission to the Standards Committee, and set out his perspective of the history of the matter to date in a report dated 16th June. Mr Fennell obtained statements from Trevor Johnson, Martin Thrower and Jennifer Harman, all three statements being signed on 13th July 1999. He also obtained a medical report on Mr Johnson to which I have already referred, and his own report was prepared for the meeting of the Standards Committee which took place eventually on 9th November 1999.
Standards Committee, Code and Harassment Policy
Appropriate action to be taken by Council following investigations into allegations of misconduct by Councillors.
Any action arising from reports by the Local Government Ombudsman and other external investigators."
Clearly its remit envisaged that in the event of there being an allegation of misconduct by a councillor some form of investigation would be made before the matter was placed before the Standards Committee, but it could only recommend action to be taken by the Council. It could not itself take any other action, and by mid 1999 it had no established procedure. Broadland District Council was not alone in establishing a Standards Committee. Other local authorities had taken similar action in response to the third report of the Committee on Standards in Public Life (the Nolan Committee) Command 3702-1. That action had been taken in advance of legislation now contained in the Local Government Act 2000.
Continuing the Narrative
"Once the investigation is complete and a report has been prepared, it will be made available to your client. If it demonstrates a prima facie case of inappropriate behaviour towards an officer on behalf of your client then the matter will be referred to the Standards Committee for consideration. This will ensure that your client is treated in accordance with natural justice."
The letter goes on to indicate that "to protect individuals while the investigation continues" measures set out in the Chief Executive's letter of 21st May will remain in place, and, in paragraph 8, the letter reiterates the suggestion that a letter from the Appellant to Mr Johnson might be appropriate. In paragraph 10 the letter says -
"Without prejudice to the importance of proceeding properly as set out above, we confirm that if your client considers it would be helpful to have a round table discussion, with or without the attendance of lawyers, then the Chief Executive would be pleased to arrange and attend."
Plainly, as it seems to me, even if (as indicated by later events) the actions of the Chief Executive thus far had been somewhat high handed and had gone too far that proposal suggesting a round table discussion called for a positive response which, so far as I am aware, it did not receive. Instead of sensible conciliation, unnecessary confrontation became the order of the day.
"It is not therefore proposed to request (with the exception of the Chief Executive) the attendance of staff as witnesses."
In paragraph 3.3 there was a qualified warning -
"The Committee should recognise that the weight which can properly be given to disputed evidence contained in witness statements, in respect of which there has been no opportunity to question those witnesses, may be reduced unless, for example, that evidence is also given or corroborated by other witnesses who attend and are questioned. However, the Personnel and Central Services Manager has no reason to doubt the accuracy and completeness of the witness statements provided."
"The allegations identified during this investigation amount to prima facie evidence of possible breaches of the National Code of Local Government Conduct, and the Council's own Harassment at Work policy."
"Consider the contents of this report, together with any representations from Councillor Mrs Lashley, and to take appropriate action (if any). Such action should be within the legal powers of the Committee and, proportionate to the seriousness of the conclusions reached. One action available to the Committee would be the continuation of some or all of the Chief Executive's current restrictions, subject to a review after a fixed period of time."
First application for judicial review
On 9th November the Standards Committee met, and the Appellant, who had legal representatives, challenged the legality of the restrictions imposed on 21st May. She also questioned the status, powers and procedure of the Committee. On her behalf it was submitted that "it was appropriate to infer the motive behind the proceedings was tainted by bad faith". As to that I need not repeat what I have already said.
On 16th November 1999 the Appellant commenced proceedings for judicial review in which she challenged the lawfulness of the restrictions imposed on 21st May. Those restrictions were lifted on the following day, and on 18th November 1999 Hidden J, sitting in the Crown Office List gave leave to discontinue the proceedings for judicial review, and made an order for costs in favour of the Appellant, hence my earlier comment as to the actions of the Chief Executive having gone too far. The formal order records -
"(1) The Respondents asserting their contention that the First Respondent's Standards Committee may, upon disposal of the item numbered 7 ("Allegation of improper behaviour by a Member") in its agenda of 9th November 1999, take appropriate actions." and -
The Respondents undertaking to lift permanently the restrictions upon the Applicant's freedom to communicate with Council Officers and to enter Council premises set out in the Second Respondent's letter of the 21st May 1999."
Clearly, as a matter of construction, the assertion at (1) has to be read subject to the undertaking at (2) both appearing in consecutive paragraphs in the same document.
The meeting of 6th December 1999
"I refute all allegations made against me entirely. I want to have them heard in a proper forum and when that is resolved these matters can be heard.
You will recall that in the meeting on 9th November Gavin Miller stated that we would not participate in the proposed hearing but that he and the others in our legal team would remain present as observers. On clear legal advice this position has not changed. Should you proceed, we will be taking the appropriate actions already advised, namely judicial review."
By a majority, that Mrs Lashley's conduct on or about May 1999 fell short of the highest standards expected of councillors: and
Unanimously - that no further action be taken in this case.
As at 6th December 1999 the Standards Committee was not discharging a statutory function of BDC within the meaning of Section 101 of the Local Government Act 1972 and was not therefore a lawfully constituted committee of the Council and/or;
There was procedural impropriety in the making of the said decision;
In consequence of which the said decision was null and void.
There was also an application for an order of certiorari.
Whether, in the light of Sections 101 and 111 of the 1972 Act, the proceedings against the Applicant before the Committee were ultra vires. Without at this stage seeking to anticipate the arguments in full this involves the question of whether the Committee, in relation to the proceedings involving the Applicant, was discharging a statutory "function" of the Council.
Whether the conduct of those proceedings was unlawfully unfair.
Having examined the authorities the Judge detected no disagreement between counsel as to the principles, the disagreement being as to how the principles were to be applied, and the Judge himself drew what he described as an important distinction between -
(a) A process which, whether carried out in private or public, involves one or more of the following: investigation (with or without formal hearings), findings (whether of fact, of breaches of the law, breaches of rules of professional conduct or codes of conduct, or of misconduct), attribution of blame and responsibility, criticism, censure or reprimand, and report, but which does not extend to the imposing of sanctions other than what is often colloquially referred to, and which for convenience I will also refer to, as "naming and shaming", and
(b) A process which, whether or not it includes some or all of these features, involves actions or sanctions extending beyond "naming and shaming"."
An allegation of bias,
A complaint that charges should have been formulated,
The claim that there should have been a right to cross-examine witnesses, and
A complaint that the sanctions available to the Committee should have been identified in advance.
He rejected all four allegations, and concluded thus -
"Standing back, and looking at the matter in the round, I asked myself the question whether, having regard to the fact that these were proceedings of a disciplinary nature conducted before a body whose powers were, as I have held, limited in practical terms to "naming and shaming" the Applicant had a fair hearing, that is, a hearing conducted fairly before a fair and impartial body. In my judgment she did."
Grounds of Appeal: ultra vires
They were in reality disciplinary proceedings against a councillor:
They were proceedings to enforce a Code which the Council had no power to enforce, and
They were proceedings with a view to take action such as that taken by Mr Bryant on 21st May, and such action, it is now common ground, would have been ultra vires.
Mr Miller recognises, as he must, that if a local government officer complains to his senior officer about the way in which he has been treated by a councillor the complaint has to be investigated. Ordinary principles of good management so require, and such an investigation is plainly a function which a local authority is entitled to carry out pursuant to its statutory powers as set out in the 1972 Act. In reality it makes sense for the investigating officer to report to a committee, such as the Standards Committee which can then consider what action to take. So far as the councillor is concerned, the Committee's powers are restricted, but they are not non-existent. In extreme cases it can report matters to the police or to the auditors. In less extreme cases it may recommend to the Council removal of a councillor from a committee, or simply state its findings and perhaps offer advice. On the other side of the equation, the committee can dismiss the complaint or, for example, suggest changes to working practices to prevent such problems arising in the future.
"Mr Miller asserts that the activity of the Committee was not linked to any particular function or functions of the Council. I disagree. As Mr Baker correctly submitted, the activity of the Committee was in my judgment linked to, that is to say it was calculated to facilitate and was conducive or incidental to, the Council's functions (I) of maintaining its administration and internal workings in a state of efficiency and (II) of maintaining and furthering the welfare of its employees."
In my judgment the Judge was right, and I would go further. Even if at the outset of the proceedings on 6th December 1999 the Standards Committee mistakenly believed that it had power to re-impose the restrictions imposed by Mr Bryant on 21st May (despite the terms of the order made on 18th November 1999) the High Court in proceedings for judicial review is entitled and indeed bound to look at the matter as a whole, including the decision to take no further action. Given her decision not to participate, a proper evaluation by the Committee of its role and functions could not have led to a more favourable result so far as the Appellant was concerned, and accordingly there can be no good reason for the Court to intervene. I have considered whether the Appellant might be entitled to say that because she feared that the Standards Committee might misunderstand its powers she was entitled to take no part, and should not be at a disadvantage for having so decided, but that argument plainly cannot stand. Her proper course was to do what if anything she considered necessary in her best interests to assist the Committee to come to the correct conclusion, and then, if it exceeded its proper remit, to challenge its decision after the decision was made.
The next complaint is that the Appellant had no proper notice of the case she had to meet. It is suggested that she was entitled to "particularised disciplinary charges", but such charges would plainly have been inappropriate because she was not being charged with anything. Having seen Mr Fennell's report, and the documents annexed to it, it is clear from paragraph 14 of his statement that the Appellant's solicitor was in no doubt as to "the full extent of the criticism by Mr Johnson of Mrs Lashley's conduct." Plainly he knew, and thus she knew the case she had to meet.
As to the opportunity to cross-examine, Mr Miller accepts that the Council had no power to compel the attendance of witnesses for cross-examination, but he submits that "it was unfair to allow such damaging and unparticularised evidence to go before the SC when A had no chance to challenge the witness." As Mr Baker points out, the Committee was entitled to receive hearsay evidence, Mr Bryant and Mr Fennell were available for cross-examination, and Mr Fennell in his report gave a special warning as to the weight of the hearsay evidence. So the procedure adopted cannot be impugned.
Finally it is said that the Appellant needed to know in advance what the Committee might consider to be "appropriate action", so that she could decide how best to defend herself, but on the facts there is no substance in this point. The Fennell report had suggested "the continuation of some or all of the Chief Executive's current restrictions". That possibility ceased to exist as a result of the order made on 18th November 1999. If any other action was to be taken which would have an adverse effect on the Appellant then no doubt, as the Judge said, it would have been dealt with as and when the situation arose.
LORD JUSTICE LAWS: I agree.
LORD JUSTICE RIX: I also agree.
Order: Appeal dismissed. The respondents recover their costs in the sum of £12,639.20, those costs to be paid by the unsuccessful appellant. Permission to appeal to the House of Lords refused.