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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lashley, R (on the application of) v Broad District Council [2000] EWHC Admin 358 (16 June 2000)
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Cite as: [2000] EWHC Admin 358
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QUEEN V BROAD DISTRICT COUNCIL EX PARTE BARBARA JUNE LASHLEY [2000] EWHC Admin 358 (16th June, 2000)
CASE NO: CO/5011/1999
IN THE SUPREME COURT OF JUDICATURE
QUEENS BENCH DIVISION
CROWM OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
Friday 16 June 2000
HIS HON MR JUSTICE MUNBY
V
BROAD DISTRICT COUNCIL
EX PARTE BARBARA JUNE LASHLEY
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
____________________
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
Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE MUNBY 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 Bryant instructed 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 a faxed 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 serve only 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 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 of individuals."
In fact, Mr Bryant never sought ratification by the Committee of these or any "alternative sanctions".
By a faxed letter of 22 May the applicant told Mr Bryant that his allegations were "without foundation" and said that she would welcome an independent investigation. On 10 June the applicant's solicitors wrote to Mr Bryant challenging his actions and inviting an independent investigation by an appropriately qualified and experienced person nominated by the Local Government Association. Mr Bryant, however, on advice from the Council's solicitors proceeded to ask Mr Fennell "to prepare necessary statements and a report for possible onward transmission to the Standards Committee."
On 27 July 1999 the Council purportedly amended its standing orders to give the Committee delegated authority "to take appropriate action following investigations into allegations of misconduct by councillors." (Previously, it will be recalled, the Committee's only power had been to make "recommendations".) At its meeting on 28 September 1999 the Committee adopted a written `Procedure for hearings by the Standards Committee' prepared by Mr Bryant. Two paragraphs in particular are important:
"2.1 In considering a procedure for the Standards Committee, it is appropriate to look to the analogous process of the disciplinary procedure in respect of an individual employee. In disciplinary matters, it is equally important to comply with the principles of natural justice, bearing in mind the potential consequences to an employee.
4.2 To provide a consistent approach for Members, the following illustrate by way of example, the undefined concept of "misconduct" for this Committee :
1. Using confidential Council information for private gain.
2. Oppressive behaviour towards officers of the Council.
3. Breach of the National Code of Conduct within the Members' Handbook.
4. Breach of the Members' Protocol within the Members' Handbook."
On 30 September the applicant's solicitors received a copy of the report prepared by Mr Fennell. It was entitled `Allegations of Improper Behaviour by Councillor Mrs B Lashley.' The report, which is some five pages long, had attached to it a five page report from Mr Bryant dated 16 June 1999, signed statements, each dated 13 July 1999, from Mr Johnson (two pages), Mr Thrower (one page) and Miss Harman (two pages) and copies of memoranda from the Branch Secretary of the Broadland branch of UNISON dated 18 May 1999 and 1 July 1999.
The report stated that the "main allegation" of improper behaviour by the applicant related to Mr Johnson but said that "other examples of similar behaviour have been identified by staff and UNISON". Both the report and the attached statements contained a number of general and unparticularised allegations against the applicant. For example, Mr Bryant spoke in generalities of "occasions when her conduct towards staff has given some concern", Mr Johnson complained of what he called "repeated haranguing" by the applicant of himself and colleagues, Mr Thrower spoke of "numerous" examples over a long period of petty criticisms by the applicant of his own and the department's work, and UNISON alleged that the applicant had placed "undue pressure" on staff and made "derogative (sic) remarks to staff, often in front of colleagues".
The only specific instances of "improper behaviour" towards officers alleged in the report were:
Undated incidents prior to May 1999
(1) Mr Bryant's allegation that the applicant had interrupted a conversation he had been having after a Council meeting with Andrew Smith, the then Corporate Services Manager, and "shouted" at Mr Smith because of an incorrectly titled letter he had sent her.
(2) Hearsay accounts (by Mr Bryant and Miss Harman - Mr Smith did not make a statement) of a long telephone conversation between the applicant and Mr Smith at the end of which he was said to have replaced the receiver whilst the applicant was speaking because she had "refused to accept his position on a matter".
(3) A hearsay account by Mr Bryant that an unidentified member of staff had overheard the applicant criticising the Director of Planning and Community Services to a member of the staff of the Planning Department.
(4) A hearsay account by Miss Harman of an occasion when the applicant was said to have "publicly chastised" Mr Smith at a meeting of the Treasury Sub-committee.
March 1999
(5) Miss Harman's allegation that on 18 March 1999 the applicant had left an "abrupt" and "aggressive and intimidating" message on her (Miss Harman's) voicemail.
(1) Incidents during May 1999
(6) Mr Bryant's allegation that at the election count on 6 May 1999 the applicant had "shouted" and been "aggressive" to him.
(7) Mr Johnson's allegation that during their telephone conversation on 7 May 1999 the applicant's behaviour had been "unacceptable" and "amounted to harassment".
(8) Hearsay accounts by Mr Bryant
(1) that the applicant was saying openly to councillors and members of staff that Mr Johnson "was not capable of doing the job"
(2) that on 13 May 1999 he was told by a UNISON official that the applicant was saying that he (Mr Bryant) had "flipped" and
(3) that on 18 May 1999 the applicant had been critical of Corporate Services staff and rude to one member of the department in front of other members of the Labour group.
I should make it clear that during the course of Mr Fennell's investigation the applicant had not been asked for, and was therefore not able to volunteer, either her response to these allegations or her version of events.
The report indicated that, with the sole exception of Mr Bryant, it was not proposed to request the attendance of staff as witnesses before the Committee. Mr Fennell continued (in paragraph 3.3):
"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 [I have] no reason to doubt the accuracy and completeness of the witness statements provided."
Mr Fennell set out his `Conclusion' in paragraph 5.1:
"The allegations identified during this investigation amount to prima face evidence of possible breaches of the National Code of Local Government Conduct, and the Council's own harassment at Work policy."
He referred to that part of paragraph 24 of the National Code that states that "Mutual respect between councillors and officers is essential to good local government". He concluded in paragraph 6.1 of his report as follows:
"The Committee is RECOMMENDED to 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."
On 15 October 1999 the applicant's solicitors wrote to Mr Bryant asserting that the restrictions imposed on her by his letter of 21 May 1999 were unlawful and asking for them to be lifted. The letter also challenged the legality of the proposed proceedings before the Committee, emphasizing that any suggestion that the applicant had been guilty of "improper behaviour" was strongly disputed. The restrictions were not, however, lifted.
The Committee met to consider Mr Fennell's report on 9 November 1999. The applicant was represented by solicitors and counsel. Submissions were made on her behalf as to the unlawfulness both of the restrictions imposed by the 21 May letter and of the proposed proceedings, the latter including the submission that the procedure adopted was fundamentally unfair in various respects and that the purported proceedings before the Committee were ultra vires. The Committee was told that in these circumstances the applicant would not participate in the proceedings, beyond making submissions, and that she wished to pursue her challenges by way of proceedings for judicial review. The Committee then adjourned to 6 December 1999 to seek further legal advice as to the various points raised on behalf of the applicant. The restrictions remained in place.
Following the meeting on 9 November, the applicant on 16 November 1999 commenced judicial review proceedings against both the Council and Mr Bryant challenging the restrictions. The following day, being the day before the hearing of the applicant's oral applications for leave and for interim relief on 18 November 1999, the restrictions were lifted. At the hearing, which took place before Hidden J, the Council and Mr Bryant undertook "to lift permanently the restrictions upon the Applicant's freedom to communicate with Council Officers and to enter Council premises, set out in the ... letter of the 21st May 1999". The applicant was granted leave to discontinue the proceedings and the Council was ordered to pay the applicant's costs.
Following the application on 18 November, it was decided to convene a second meeting of the Committee on 6 December 1999, immediately following the scheduled meeting, in order to complete the "hearing" of the case against the applicant. Both meetings went ahead on 6 December. The Committee consisted of seven councillors: three Conservatives, two Labour, one Liberal Democrat and one Independent. This reflected the overall make-up of the Council, which at that time consisted of 49 councillors: 25 Conservatives, 11 Labour, nine Liberal Democrats, three Independents and one other Conservative. The applicant attended in person but, having asked unsuccessfully for the conclusion of the "hearing" to be rescheduled, took no further part in the proceedings. Counsel for the investigating officer, Mr Fennell, put the case against the applicant on the basis, inter alia, that she had breached the paragraph of the National Code to which I have already referred. Mr Bryant was the only witness called by the investigating officer.
At the conclusion of its deliberations the Committee agreed (1) by a majority, the two Labour members dissenting, "that Mrs Lashley's conduct on or about May 1999 (sic) fell short of the highest standards expected of Councillors"; and (2) "that no further action be taken in this case." What exactly was intended to be embraced in the curious phrase "conduct on or about May 1999" has never been spelt out: it will be recalled that, hearsay allegations apart, the only specified instance of alleged misconduct in May 1999 other than the telephone conversation between the applicant and Mr Johnson was Mr Bryant's allegation that the applicant had been "aggressive" towards him at the count on 6 May 1999.
The present proceedings were commenced on 21 December 1999. On 13 January 2000 permission to apply was refused on paper by Latham J. Following a renewed application made orally on 31 January 2000 Maurice Kay J granted permission. The hearing before me took place on 23 and 24 May 2000, when I reserved judgment. On 8 June 2000 I sent a draft judgment to counsel and their instructing solicitors. On 14 June 2000 I made an order dismissing the application, ordering the applicant to pay the Council's costs and giving the applicant permission to appeal. I now (16 June 2000) give my reasons for making that order.
THE ISSUES
Counsel are agreed that there are two issues for decision, which I can summarise as follows:
(1) 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 whether the Committee, in relation to the proceedings involving the applicant, was discharging a statutory "function" of the Council.
(2) Whether the conduct of those proceedings was unlawfully unfair.
Mr Millar in his skeleton argument on behalf of the applicant raised an additional point as to whether the Council's power of delegation under section 101 of the 1972 Act had been properly exercised. This point was not, however, pursued before me. Mr Baker submitted that in this respect there is no warrant for reading section 101(12) as narrowly as Mr Millar would have it and that in any event there is clear authority to the contrary. He referred me to Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB 697, 785G-787G, approving Bar Hill Developments Ltd v South Cambridgeshire District Council [1989] 2 EGLR 109, 111E-F. Mr Millar accepted that, in the light of those authorities the point was not open to him in this court, though he expressly reserved the right to argue to the contrary in another place.
Nor did Mr Millar seek to take any point to the effect that the proceedings before the Committee were, as a matter of construction of the Council's standing orders, outside the ambit of what had been delegated by the Council to the Committee. Mr Millar's submission is that, even if those powers had never been delegated to the Committee, it would have been ultra vires the Council itself to act in the way in which the Committee acted. Thus formulated, the issue before me accordingly raises a question not merely as to the vires of the Committee but as to the vires of the Council, indeed of every local authority - hence the importance of the case.
Before turning to consider these issues I must make clear what this case is not about. First, and this ought to go without saying, the court is not concerned in any way with considerations of party politics. Secondly, I am not in any way concerned with the wisdom, expediency or desirability of the Council's decision (if otherwise lawful) to delegate to the Committee the powers which have been exercised in relation to the applicant. That is a responsibility which the law places firmly in the hands of the Council. Thirdly, the applicant's conduct, the contents of Mr Fennell's report and the correctness or otherwise of the Committee's finding against the applicant are not the subject of the present proceedings. Accordingly I express no views about them. It is not the purpose of these proceedings to reach findings of fact on allegations which, it is important to note, the applicant has always denied and continues to deny. These proceedings are concerned simply and solely with a question of law: my function is to decide, and to decide only, whether, as the applicant contends, the Committee's actions were unlawful or whether, as the Council contends, they were lawful.
ULTRA VIRES
It is common ground that there is no specific statutory provision which in terms authorises the Committee's activities. Mr Baker asserts, though Mr Millar denies, that sufficient authority is, however, to be found in the general provisions of sections 101 and 111 of the 1972 Act. So far as is material for present purposes those sections provide as follows:
"101 Arrangements for discharge of functions by local authorities
(1) Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions -
(a) by a committee, a sub-committee or an officer of the authority; ...
(12) References in this section ... to the discharge of any of the functions of a local authority include references to the doing of anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of those functions.
111 Subsidiary powers of local authorities
(1) 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."
It will be necessary also to refer to sections 94 and 102 of the 1972 Act. So far as is material for present purposes they provide as follows:
"94 Disability of members of authorities for voting on account of interest in contracts, etc
(4) A local authority may by standing orders provide for the exclusion of a member of the authority from a meeting of the authority while any contract, proposed contract or other matter in which he has a pecuniary interest, direct or indirect, is under consideration.
102 Appointment of committees
(1) For the purpose of discharging any functions in pursuance of arrangements made under section 101 above ... -
(1) a local authority may appoint a committee of the authority; or ...
(3) any such committee may appoint one or more sub-committees.
(2) Subject to the provisions of this section, the number of members of a committee appointed under subsection (1) above, their term of office, and the area (if restricted) within which the committee are to exercise their authority shall be fixed by the appointing authority ... or, in the case of a sub-committee, by the appointing committee."
It will be seen that the word "functions", which Mr Millar and Mr Baker are agreed lies at the heart of this case, is a component both in the definition of the subsidiary powers of a local authority in sections 101(12) and 111(1) ("anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any ... functions") and in the definition of the power of a local authority to delegate in section 101(1) ("may arrange for the discharge of any of their functions").
The meaning of the word "functions" in this context has been considered in a number of authorities to which I was referred. In R v Eden District Council ex p Moffat (1988) Times November 24 (cited by Watkins LJ in Allsop v North Tyneside M.B.C. (1992) 90 LGR 462, 474-475) Nourse LJ said:
"The functions of a local authority are not confined to the acts which they have a duty to perform. They include all the acts which they are expressly or impliedly required or empowered to perform by the legislation to which they are subject. Here section 111(1) of the Act of 1972 expressly empowers a local authority to do anything which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions. The setting up of a working party was calculated to facilitate the discharge of the council's function of improving their structure and efficiency. They therefore had power to set it up under section 111(1)."
In the same case (see Allsop at p 475) Sir Deny Buckley said:
"I cannot find anywhere in the Local Government Act 1972 any definition of the meaning of the term `function'. It is, I think, a word of wide signification capable of embracing any form of activity proper to the person or body whose functions are under consideration."
The word was also extensively considered by the Divisional Court, the Court of Appeal and the House of Lords in Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB 697, [1992] 2 AC 1. In the Divisional Court Woolf LJ, [1990] 2 QB 697, 722G-723A, said of section 111(1):
"What is a function for the purposes of the subsection is not expressly defined but in our view there can be little doubt that in this context "functions" refers to the multiplicity of specific statutory activities the council is expressly or impliedly under a duty to perform or has power to perform under the other provisions of the Act of 1972 or other relevant legislation. The subsection does not of itself, independently of any other provision, authorise the performance of any activity. It only confers, as the side note to the section indicates, a subsidiary power. A subsidiary power which authorises an activity where some other statutory provision has vested a specific function or functions in the council and the performance of that activity will assist in some way in the discharge of that function or functions."
At p 723G he observed:
"In our judgment there must be a sufficient nexus between the activity and the function or functions if the activity is to be authorised by the subsection. Whether or not there is such a nexus can involve problems of degree. The necessary nexus can be broken if the activity is not subsidiary to the discharge of the function of the council or if it involves setting up a separate business or undertaking."
In the Court of Appeal Sir Stephen Brown P, [1992] 2 QB 697, 785C, said of section 111(1):
"We agree with the Divisional Court that in this subsection the word "functions," which is accompanied by no statutory definition, is used in a broad sense, and is apt to embrace all the duties and powers of a local authority: the sum total of the activities Parliament has entrusted to it. Those activities are its functions. Section 111(1) confirms that, subject always to any contrary statutory provision, a local authority has power to do all the ancillary things requisite for carrying out those activities properly. This construction accords with the codifying purpose for which the subsection was enacted. It also accords with the views expressed by Glidewell J in R v Greater London Council ex p Westminster City Council, The Times, 27 December 1984, and by Nourse LJ and Sir Denys Buckley in Moffat v Eden District Council."
This broad approach was specifically approved by the House of Lords: see per Lord Templeman [1992] 2 AC 1, 29F.
Sir Stephen Brown, as we have seen, pointed out that the operation of section 111(1) is, of course, subject always to any contrary statutory provision. In the Divisional Court Woolf LJ, [1992] 2 QB 697, 724G-725D, had explained that section 111(1) cannot be relied upon to justify transactions which are, as he put it, "inconsistent with the structure of the Act of 1972 as a whole". In the House of Lords Lord Templeman said, [1992] 2 AC 1, 31D:
"The authorities deal with widely different statutory functions but establish the general proposition that when a power is claimed to be incidental, the provisions of the statute which confer and limit functions must be considered and construed. The question is not whether swap transactions are incidental to borrowing but whether swap transactions are incidental to a local authority's borrowing function having regard to the provisions and limitations of the Act of 1972 regulating that function. The authorities also show that a power is not incidental merely because it is convenient or desirable or profitable."
At p 33H he said:
"Schedule 13 [of the 1972 Act] establishes a comprehensive code which defines and limits the powers of a local authority with regard to its borrowing. The Schedule is in my view inconsistent with any incidental power to enter into swap transactions."
In Credit Suisse v Allerdale Borough Council [1997] QB 306, 332B, Neill LJ said:
"It is also necessary, however, in any particular case to examine the context in which the implied powers are to be exercised."
A little later at p 332G he said:
"The implied powers in section 111 do not provide an escape route from the statutory controls. In my view that is clear ... as a matter of principle".
And at p 333E-H he said:
"It was argued on behalf of the bank that ... the fact that the chosen route had the effect of avoiding the statutory financial limits did not render the scheme unlawful ... I feel bound to reject the bank's arguments. The scheme was plainly designed to circumvent statutory controls ... The statutory powers conferred on local authorities to be exercised for public purposes can only be validly used if they are exercised in the way which Parliament, when conferring the powers, is presumed to have intended. This is a general principle of public law."
There is no disagreement between Mr Millar and Mr Baker as to these principles; their disagreement is as to how they are to be applied. Their disagreement on what may at first sight appear a fairly narrow point masks what is in fact a dispute of substance on matters of fundamental importance. It is, therefore, as it seems to me, necessary to stand back a little from the detailed arguments addressed to me and to look at the wider context.
For reasons that will become apparent in due course it seems to me that there is an important distinction to be drawn in this context 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'.
As Mr Baker pointed out, I am strictly speaking concerned only with the first of these, for the only action taken by the Committee on 6 December 1999 was to state publicly that the applicant's behaviour "fell short of the highest standards expected of Councillors". No other action was taken and no other sanction was imposed. In particular, the Committee did not follow up Mr Fennell's suggestion that it might be appropriate to continue some or all of the restrictions which Mr Bryant had purported to impose in his letter of 21 May 1999. Those restrictions, of course, formed the subject of the earlier judicial review proceedings, although in the event the lawfulness of Mr Bryant's conduct did not fall to be judicially considered. Nonetheless, I do not think that I can avoid expressing at least some views on the question that Hidden J was spared from deciding (a matter on which I have had a certain amount of argument from counsel) both to explain why it is that I have come to the conclusion I have on the issue which is before me and also to explain why in my judgment it is important to draw the distinction to which I have just referred.
Mr Baker's submissions can be summarised as follows. He asserts that the Council has the power under section 111(1) of the 1972 Act to establish a Standards Committee. This is something, he points out, that many local authorities have done, albeit in advance of the proposed legislation which, as I understand it, is currently before Parliament, legislation intended to implement the Government's proposals in `Modern Local Government: In Touch with the People', July 1998, Cm 4014, which was itself the formal response to the recommendations of the Committee on Standards in Public Life chaired by Lord Nolan in its Third Report, `Standards of Conduct in Local Government in England, Scotland and Wales', July 1997, Cm 3702-1. According to Mr Baker, the misconduct of a councillor (that is, the misconduct of a councillor qua councillor) is a matter of legitimate concern to the local authority and directly relevant to the discharge by the local authority of its functions. He points out that the conduct of councillors is a part of the administration of a local authority, and that the standard of that conduct profoundly affects the manner, efficiency and propriety with which the authority discharges its functions generally. Further, the conduct of councillors is (or may be), he says, conduct of or attributable to the authority, for which the authority may be liable or challengeable, or in respect of which the authority may be the subject of a complaint to the Local Commissioner. In addition, he says, and pertinent particularly to the facts of the present case, the relationship between councillors and officers is, as paragraph 24 of the National Code makes clear, essential to the proper working of an authority. So, he submits, an investigation into possible misconduct by a councillor or councillors is within the powers of a local authority. It would be remarkable, he says, if a local authority was precluded from discovering facts relevant to misconduct by one or more of its members and which might have (or have had) an effect on the authority itself. For present purposes, there are, he says, two relevant "functions", within the meaning of section 111(1) of the 1972 Act, which the Committee's activities were "calculated to facilitate" or to the discharge of which the Committee's activities were "conducive or incidental": first, the general internal administration of the Council, and, secondly, and more particularly, the maintenance and furtherance of the welfare of the Council's employees.
In support of his argument as to the nature of the relevant "functions" in play in the present case Mr Baker referred me to four authorities. The first is R v Greater London Council ex p Westminster City Council (1984) Times December 27 in which Glidewell J held (see Allsop v North Tyneside MBC (1992) 90 LGR 462, 474) that the maintenance of good industrial relations with its staff was a proper function of a local authority, and accordingly that a decision by an authority to release staff with pay for that purpose and in order to avoid `industrial action' was within section 111 as it was an action which facilitated or was conducive or incidental to the discharge of its functions. The second case is R v Eden District Council ex p Moffat (1988) Times November 24 in which, as we have seen, Nourse LJ held that a local authority had power under section 111 to set up a working party because it was "calculated to facilitate the discharge of the council's function of improving their structure and efficiency". The third is Allsop v North Tyneside MBC (1992) 90 LGR 462, 480-481, in which Watkins LJ, giving the judgment of the Divisional Court, held, applying Hazell v Hammersmith and Fulham London Borough Council [1990] 2 QB 697, [1992] 2 AC 1, and following the two earlier cases (which, as we have seen, had themselves been cited with approval by Sir Stephen Brown P in Hazell [1990] 2 QB 697, 785D), that the functions of a local authority should be construed broadly and that they include the acts which such an authority is expressly or impliedly authorised to perform. He continued:
"We also accept that it is the function of the council, as a local authority, to maintain good staff relationships to avoid industrial strife, to provide services and to dismiss staff".
The final case is R v Portsmouth City Council ex p Gregory (1990) 89 LGR 478.
As Mr Millar correctly pointed out, the facts of this case need to be carefully examined and properly understood. So far as is material for present purposes they can be summarised as follows. In 1975 the city council adopted the National Code, which thereafter was printed in its standing orders. In 1982 the administration subcommittee ("the ASC") was created as a subcommittee of the council's policy and resources committee. Amongst the powers delegated to the ASC were powers by paragraph 19,
"(i) To be available to investigate and report on the conduct of any project or department or to examine any area of activity. (ii) To examine and make recommendations on the establishment of procedures or formulation of standing orders in respect of subjects investigated by the review subcommittee. (iii) To monitor, consider and report on compliance with approved procedures and standing orders. (iv) To exercise a general oversight over the arrangement for receiving and dealing with complaints".
In October 1988 the ASC held a meeting to consider various complaints against a councillor. After hearing evidence and submissions, the ASC found that the councillor had committed breaches of the National Code in respect of eight matters. It decided to recommend that he be removed from membership of the authority's housing and health committee and property subcommittee and that he be suspended from membership of those bodies during the remainder of his term as a councillor. In November 1988 a special meeting of the city council considered the recommendations of the ASC and appointed a special committee with full delegated powers to approve, reject vary or amend the recommendations of the ASC and to take any other action. A few days later the ASC, without notice to the councillor, resolved to recommend to the special committee that pending the determination of the complaints against him, he be temporarily suspended from his membership of council committees and from his representative positions on outside bodies. Two days later the special committee resolved to suspend the councillor from his office, his membership of committees and his representative posts on outside bodies pending the determination of the complaints against him.
The councillor sought judicial review of the decisions of both the ASC and the special committee, contending, inter alia, that the ASC did not have power to do what it did and that this vitiated all that followed. The Divisional Court (Mann LJ and Brooke J) agreed. Giving the judgment of the court, Brooke J said, (1990) 89 LGR 478, 491-492,
"Although paragraph 19(iv) referred to a "general oversight over the arrangements for receiving and dealing with complaints" it was not contended that this gave the ASC power to convene a hearing, hear evidence and submissions, make a finding against a councillor that he had been in breach of the code and make a recommendation about the disciplinary action which should be taken against him. In an affidavit, the city solicitor relied on paragraph 19(iii) which contains powers "to monitor, consider and report on compliance with approved procedures and standing orders". Counsel in our judgment quite rightly did not rely on that paragraph as empowering the ASC to do what it did. Counsel defended the actions of the ASC by reference to paragraph 19(i) which contains powers "to be available to investigate and report on the conduct of any project or department or to examine any area of activity". Although this paragraph could have been more clearly drafted it does, in our judgment, give ASC power to carry out an examination of an area of activity in the sense that if the council receives complaints about the conduct of any councillor which falls within the code of conduct the ASC can carry out, on behalf of the council, the sort of preliminary inquiry which in different contexts the police or the professional conduct committee of a professional body would carry out if complaints of criminal or unprofessional conduct are brought to their attention. But, in our judgment, the ASC was given no powers at all to make findings that a councillor had acted in breach of the code of conduct or to make recommendations consequential on such findings, even if those findings would have to be reconsidered by the council or by another body appointed specially by the council before they could take effect. For similar reasons, the action of the ASC in recommending that Mr Gregory be suspended after it had made adverse findings against him in causing a press statement to be issued announcing what it had done was, in our judgment, beyond its powers (emphasis added)."
Not surprisingly, Mr Baker relies in particular on that part of Brooke J's judgment which I have emphasised. Mr Millar points out, correctly as it seems to me, that the entire argument in that case turned on the construction of paragraph 19 and that the ultra vires argument, at least in the form in which he seeks to put it to me today, was not deployed in front of the Divisional Court in the way in which, as he would have it, it could successfully have been. Allowing that there may be detected this frailty in the forensic process to which Mr Millar rightly draws attention, and granted that in consequence the case on this point is at best from Mr Baker's perspective obiter - and, it may be, not particularly deeply considered obiter -, nonetheless, and accepting all that, it seems unlikely to me that two such acknowledged authorities on this part of the law should have said what they did if there had been any room for doubt in their minds as to the fundamental propriety of the ASC carrying out the kind of inquiry which they held to be within its powers.
In my judgment, the authorities to which Mr Baker referred me provide powerful support for his argument. I accept his submission that those authorities indicate, even if they do not in terms decide, that the internal workings of a local authority are or involve "functions" and, moreover, that it is in principle intra vires a local authority to investigate the propriety of a councillor's conduct.
Mr Millar's submissions were arranged under four headings. First, he submitted that it was important correctly to identify the "activity" upon which the Committee was engaged before turning to identify, if one could, some "function" which the "activity" was calculated to facilitate or to which it was conducive or incidental. I agree. Where I part company with Mr Millar is in his characterisation of the relevant "activities" here being undertaken by the Committee. As I understood his submissions, Mr Millar accepts that it is in principle intra vires a local authority to have a standards committee and, if it chooses, a local code of conduct binding its councillors. He accepts also that it is intra vires a local authority to entrust to such a committee the exercise of a general oversight over what Mr Baker would call the internal workings of the authority, as well as the monitoring of policy, the carrying out of a general investigation (even if that investigation involves dealing with a particular individual), and producing a report. In the present case, he says, the Committee was doing something different and impermissible. It was, he says, purporting to conduct a disciplinary hearing into allegations of misconduct against a serving councillor (in the form, inter alia, of a breach or breaches of the National Code) with a view to taking "appropriate action" against her. Three elements in what the Committee was doing made its activities ultra vires the Council he says: first, that it was acting as a disciplinary body; secondly, that it was purporting to enforce the National Code; and, thirdly, that it was not merely an investigative body, but a body purportedly authorised to take "action" and to impose sanctions.
I cannot accept these submissions which I have to say on occasions seemed to me to savour of semantics. If it is intra vires a local authority, as in my judgment it plainly is, to investigate and report on the activities of an individual, whether officer or councillor, where that is seen by the authority as appropriate in connection with the proper conduct, oversight, monitoring and, where necessary, correction of the authority's internal workings - and I did not understand Mr Millar to say that such activities would be unlawful - I do not see that it suddenly becomes unlawful, and indeed ultra vires the authority, merely because it might be said on one view of things that the proceedings are disciplinary in nature or in some sense involve enforcing the National Code. It would not in my judgment make much sense to say that it is intra vires a local authority to publish a report into the workings of its internal administration in the course of which it records, without comment, the fact that councillor A has done X, but that it is ultra vires the authority to add the comment that in doing X councillor A has broken some specified paragraph in the National Code or that for having done X councillor A is to be censured.
As I have already indicated, and this is matter to which I must return in due course, different considerations arise if a local authority or a body such as the Committee proceeds to "action" going beyond `naming and shaming'. But if it is intra vires a local authority to investigate and report on a councillor's activities qua councillor I cannot accept that it becomes ultra vires if, in addition to investigating and reporting, it `names and shames', as for example, by stating, that a councillor fell short of the standards properly to be expected of a councillor or, as the Committee did in the present case, that the applicant "fell short of the highest standards expected of Councillors".
Mr Millar 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.
Secondly, Mr Millar submitted that there was nothing in the language of any of the relevant statutory provisions (sections 94(4) and 111 of the 1972 Act, section 30(3A) of the 1974 Act and section 31(1) of the 1989 Act) which would justify or permit finding implied authority to conduct misconduct hearings with a view to taking action by way of sanctions against individual councillors. On the contrary, he says, such statutory provisions as exist are entirely consistent with a Parliamentary intention to create a regime for member conduct which, save in cases falling within the narrow reach of section 94(4), is the personal responsibility of each elected member, with only limited powers of enforcement external to the local authority (that is, through the jurisdiction of the Local Commissioner under section 30(3A)). The underlying purpose of the current legislative regime, he says, is to ensure standards of member conduct by personal responsibility to comply with the National Code after assuming office, rather than by enforcement and disciplinary arrangements through the standing orders of the Council. I do not accept this. I cannot see anything in what the Committee did in relation to the applicant which is inconsistent with the structure of the relevant legislation taken as a whole or with any of the specific statutory provisions to which I have been referred. The legislation does not in relation to the present subject matter establish a code, let alone a comprehensive code, in the sense in which that expression is used in the authorities to which I have referred. There is no scheme of statutory control which the Committee's activities were designed to circumvent. On the contrary, section 94(4) of the 1972 Act, which is directed to the exclusion of councillors from committees where there are conflicts of interest, is, as it seems to me, irrelevant to the question of a local authority's power to `name and shame' a councillor for misconduct. And section 30(3A) of the 1974 Act, insofar as it is part of a code, is part of the code regulating the activities of the Local Commissioner, not a code regulating the activities of councillors or of local authorities vis-a-vis councillors.
Thirdly, Mr Millar relied upon certain passages in the Third Report of Lord Nolan's Committee, in particular the following passages in paragraphs 170, 172 and 176:
"170 There is at present no way in which a council collectively can act against an individual councillor for non-compliance with the code of conduct, other than by exclusion from committees with the consent of the councillor's party group ...
172 These factors suggest that there would be merit in giving councils a collective right to control any misconduct by individual members which amounted to a breach of their code of conduct ...
176 The council itself should be given statutory powers of discipline, to be exercised only after a recommendation from the Standards Committee. We believe that the council should have power to bar councillors from particular meetings, from access to particular papers or premises, and to restrict their contacts with named staff. It should also have power to suspend or remove councillors from particular committees, and to suspend them entirely from council meetings and council business ... "
I do not read Lord Nolan's Committee as saying anything more than that local authorities do not at present, save to the very limited extent referred to in paragraph 170 of the report (a reference as I understand it to section 102 of the 1972 Act), have any power to control councillors by action of the kind recommended in paragraph 176. In particular, I do not read the report as denying that local authorities already have power to take action of the kind which in the present case the Committee took in relation to the applicant, that is, power to investigate individual councillors and to make findings in respect of alleged non-compliance with the National Code. If Lord Nolan's Committee was denying that local authorities already have power to `name and shame' individual councillors, and as I have already said I do not read the report as saying any such thing, then with great respect I would have to disagree.
Finally, Mr Millar reminded me that it has long been recognised that the fair, proper and efficient operation of local democracy depends upon a delicate balance between the interests of majority members, minority members and officers. I can readily agree with this submission without accepting in this context, and I do not, Mr Millar's supplementary submission that the introduction of disciplinary arrangements (the operation of which, he suggests, might have the effect of upsetting this balance on a particular authority) is properly a matter for primary and secondary legislation containing detailed procedural safeguards. If and insofar as this submission is directed to disciplinary sanctions of the kind recommended in paragraph 176 of the report of Lord Nolan's Committee - a matter which I return to below -, it has very considerable force. But so far as concerns action of the kind undertaken in the present case by the Committee in relation to the applicant I cannot agree.
For all these reasons I reject Mr Millar's submission that the proceedings against the applicant before the Committee were ultra vires.
I should here break off to record that the draft judgment sent out on 8 June 2000 continued at this point with a passage which began with the words "There is, however, as it seems to me, a much more fundamental reason why, on this part of the case, Mr Baker's submissions are to be preferred to those of Mr Millar" - that reason having to do with freedom of expression. Mr Millar pointed out that this part of the draft judgment referred to matters which had not been canvassed in argument. He indicated that there were relevant authorities which might throw a significant light on what I had said. He declined, however, as he was entitled to, an invitation to address any further argument to me. In these circumstances, and since this part of the draft judgment was not necessary to the decision at which I had arrived, as set out above, it seems to me better to omit it. Accordingly I say no more about it.
I turn now to consider, at rather shorter length, whether it would have been intra vires the Committee to proceed to sanctions extending beyond `naming and shaming', in particular, as suggested by Mr Fennell, to continue some or all of the restrictions which Mr Bryant had purported to impose in his letter of 21 May 1999.
On this aspect of the matter, as I have already indicated, Mr Millar's submissions seem to me to have very considerable force. This is not the place to attempt a delineation of the notoriously difficult line which divides `speech' from `action'. For present purposes the relevant distinction, as I have already suggested, is that between a process which does not extend to the imposition of sanctions other than `naming and shaming' a delinquent councillor and a process which involves actions or sanctions extending beyond `naming and shaming', specifically on the facts of the present case, the imposition on a delinquent councillor of restrictions such as those which Mr Bryant purported to impose on the applicant in his letter of 21 May 1999.
It seems to me that, as a matter of law, Lord Nolan's Committee was correct in asserting that local authorities at present lack power to control councillors by action of the kind recommended in paragraph 176 of the report. Accordingly, in my judgment, Mr Millar is correct in asserting that the imposition by the Council on the applicant of restrictions such as those which Mr Bryant purported to impose would have been ultra vires the Council. In this regard, the extent of Mr Bryant's legal powers of action as Chief Executive could not, of course, exceed those of the Council itself, and it therefore follows that the restrictions purportedly imposed on the applicant by Mr Bryant were themselves ultra vires.
Putting the point more portentously, the argument that it would have been intra vires the Council to impose on the applicant restrictions such as those which Mr Bryant purported to impose involves what in my judgment would be an unacceptable - indeed unlawful - restraint of the applicant's right to perform her functions and duties as a democratically elected representative.
In my judgment, both the law as it is to be found in authority and the argument from democracy which Mr Millar has properly put to me point, not surprisingly, in the same direction.
A councillor does not, merely qua councillor, have unrestricted rights of access to committees and sub-committees of the local authority, nor to the books, papers, records and files of the authority: R v Birmingham City Council ex p O [1983] 1 AC 578, R v Hackney London Borough Council ex p Gamper [1985] 1 WLR 1229, R v Sheffield City Council ex p Chadwick (1985) 84 LGR 563, R v Eden District Council ex p Moffat (1988) Times November 24. The councillor's sphere of competence is staked out by the law. Thus a councillor has no automatic right to attend meetings of committees, sub-committees or working parties of which he is not a member nor any automatic right of access to the documents of such a committee, sub-committee or working party. He has to demonstrate that such access is needed by him to enable him properly to discharge his duties as a councillor; in short he has to have a `need to know': R v Birmingham City Council ex p O [1983] 1 AC 578, 594C-E per Lord Brightman.
What is meant in this context by a `need to know' was explained by Woolf J in R v Sheffield City Council ex p Chadwick (1985) 84 LGR 563, 575:
"If a councillor has a need to know, in the sense of a legitimate interest in the subject about which he is seeking information, then he is not required to exhaust all other avenues by which he might obtain the same information before seeking the information as a last resort directly from the committee or subcommittee concerned. Of course the councillor must not act unreasonably, and if information which he legitimately requires could more satisfactorily and more readily be obtained by some other means, then he cannot unreasonably impose himself upon a committee or subcommittee."
On the other hand, as Lord Brightman had earlier observed, in the case of a committee of which he is a member, a councillor as a general rule will ex hypothesi have good reason for access to all written material of such committee - and, I would add, to attend all meetings of the committee. Thus, as Lord Brightman put it, [1983] 1 AC 578, 594B:
"So I do not doubt that each member of the social services committee is entitled by virtue of his office to see all the papers which have come into the possession of a social worker in the course of his duties as an employee of the council. There is no room for any secrecy as between a social worker and a member of the social services committee."
The councillor's membership of committees and sub-committees and his right of access to meetings of those committees or sub-committees of which he is a member are protected by law. Thus, although as Nolan J accepted in R v Brent London Borough Council ex p Gladbaum (1989) 88 LGR 627 the statutory power under section 102 of the 1972 Act to appoint to committees by necessary implication includes power to remove and replace committee members, that power, being as he put it "not merely incidental, but fundamental to the proper discharge of the functions which the council were elected to perform", cannot be delegated and therefore falls outside the statutory power of delegation in section 101. Moreover, a councillor who has been appointed to a committee or sub-committee in accordance with the provisions of sections 15 and 16(1) of the 1989 Act (sections described in the Act as relating to "Political balance on committees etc") can by virtue of section16(2) of that Act be removed from the committee or sub-committee only "in accordance with the wishes of" the political group pursuant to whose wishes he was originally appointed. Furthermore, although section 94(4) of the 1972 Act empowers a local authority to provide by standing orders for the exclusion of a member of the authority from a meeting of the authority, that power permits such exclusion only while a matter in which he has a pecuniary interest is under consideration. And finally, although as R v Bradford City Metropolitan Council ex p Wilson [1990] 2 QB 375n shows there is no objection to one councillor moving in full council a vote of no confidence in another councillor, it is equally clear from the judgments in that case that a councillor cannot be removed from office by such a vote.
In the present case, the investigation by the Committee did not result in any further action. Accordingly, as Mr Baker accepted, the issue as to what, if anything, beyond `naming and shaming' may comprise "appropriate action" within the meaning of the Committee's standing orders is academic. Nonetheless he suggested that, although the "action" which can lawfully be taken by a local authority in respect of misconduct by individual councillors may well be limited, it might comprise:
(i) new internal arrangements, such as changes to standing orders or working practices (which might involve controlling access to the authority's premises);
(ii) drawing up a protocol for member/officer relations (such as the one by Birmingham City Council, commended by Lord Nolan's Committee: see paragraphs 143-144 and Appendix III of its report);
(iii) giving instructions to staff, either general or specific;
(iv) giving advice or making observations, either generally or specifically about a councillor's conduct;
(v) reporting matters to the police, or to the authority's auditors;
(vi) a recommendation to the full authority to remove a councillor from a committee.
Without coming to any final view on questions which do not arise for decision, and on which I have had only limited argument, I am certainly inclined to agree with Mr Baker that, in principle, (ii), (iv), (v) and (vi) would be intra vires a local authority.
I am far from convinced, however, that (i) and (iii) would necessarily be intra vires. Much will depend upon the content of the "arrangements" or "instructions". Plainly a local authority has power, as part of the organisation of its general administration and internal working, to make appropriate general arrangements regulating such matters as access to its premises and files - always assuming, that is, that those general arrangements meet the criteria indicated by the authorities to which I have referred. A councillor obviously cannot demand the right to enter the authority's premises at any hour of the day or night and, as Woolf J's comments in R v Sheffield City Council ex p Chadwick (1985) 84 LGR 563 show, a councillor can normally be required to go through the `usual channels' to obtain access to papers and information. On the other hand, "arrangements" or "instructions" which sought to impose on a particular councillor or councillors specific restrictions more onerous than those imposed on councillors generally might very well be ultra vires, particularly if imposed for disciplinary or punitive reasons.
In approaching this question one needs always to have in mind that anything which fetters the otherwise appropriate activities of a democratically elected representative must, as it seems to me, be subjected to the most searching and rigorous scrutiny and is something which requires the most cogent and compelling justification. I confess to being sceptical as to whether any significant restraints of a practical nature imposed on an individual councillor's otherwise appropriate activities (that is, restraints more onerous than those imposed on councillors generally) can be justified in the absence of express statutory authority. But for present purposes it suffices to say that I agree with Mr Millar that the imposition by the Council on the applicant of restrictions such as those which Mr Bryant purported to impose would have been unlawful.
UNFAIRNESS
Although a number of grounds of alleged procedural unfairness were originally canvassed, Mr Millar in argument before me pursued only four aspects: (1) an allegation of bias, (2) a complaint that charges should have been formulated, (3) the claim that there should have been a right to cross-examine witnesses, and (4) a complaint that the sanctions available to the Committee should have been identified in advance. (It will be noted that the omission to identify precisely what "conduct on or about May 1999" had been found proved is not relied on as a matter of complaint.)
I shall deal with these four matters in turn. First, however, I should record that it was not disputed by Mr Baker that a general requirement of fairness is to be applied. Given that all parties correctly treated the proceedings before the Committee as being for this purpose disciplinary in nature, this concession was plainly correct. (I make the point because I should not want it to be thought that the principles of natural justice necessarily apply to local authority debates, whether in council or committee, merely because the debate involves criticism, even sustained criticism, of a councillor's conduct.) The issue, Mr Baker says, is the content and application in the present context of that requirement of fairness.
Mr Millar submits that it is axiomatic that the demands of the duty of fairness are dependent on the nature and context of the proceedings. A power to discipline an elected councillor (and in this instance the leader of a minority party group) through a committee with a majority from other political groups on the authority is, he warns, plainly open to abuse. In disciplining the member, the majority on the committee may be frustrating the will of the electorate and limiting his or her common law rights as an elected member. The officer bringing the proceedings may be seeking to (improperly) assert authority over the member or a political group. Because of this, says Mr Millar, the highest standards of procedural fairness should apply to any such proceedings.
Let me say at once that there is no basis in the present case for any suggestion that either Mr Bryant, or Mr Johnson or Mr Fennell was motivated at any time by any improper consideration. In particular there can be no suggestion that Mr Bryant acted other than entirely impartially between the political groupings, as he was required to be, in deciding to delay the calculation of committee seats. It is also relevant, as Mr Baker points out, to note the extremely limited content of the Committee's decision. For reasons which I have already sought to explain, merely `naming and shaming' a councillor does not in any way frustrate the will of the electorate or limit the councillor's rights as an elected member. In these circumstances, as it seems to me, Mr Millar sets the standard of fairness which ought to have governed the proceedings before the Committee too high.
The question which I have to ask myself is 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. That question, it seems to me, is to be asked both when examining the specific complaints made by Mr Millar on the applicant's behalf and, at the end, when considering matters in the round.
Bias
Mr Millar says, correctly, that there was no independent element on the Committee, that it consisted entirely of other members of the Council and that it was constituted in accordance with the overall political make-up of the Council. He asserts, with less evidential justification, that the members of the Committee divided throughout the proceedings along party political lines. I simply do not know whether or not that was so. Mr Baker points out that the Committee was a cross-party Committee, that the majority party on the Council - the Conservative group - did not have a majority on the Committee and that, with the exception of the two Labour members, all the other members of the Committee (including the Liberal Democrat and an Independent member) voted in favour of the resolution. As Mr Baker would have it, the only sense in which the Committee members divided along party lines was that both Labour members voted against the resolution. Again, I simply do not know whether that was so. If there was evidence that the Liberal Democrat group and the Independents on the Council could normally be expected to align themselves with the Conservative group, there might be some force in Mr Millar's point. If there was evidence that the Liberal Democrat group and the Independents on the Council would not necessarily be expected to align themselves with the Conservative group, there might be some force in Mr Baker's point. But the simple fact is that there is no relevant evidence before me. All I know is the constitution of the Council, the constitution of the Committee and the breakdown of the voting at the Committee. I do not think I can fairly assume that the Committee divided along party lines, either in the way (prejudicial to the non-Labour members) in which Mr Millar seeks to put the point or in the way (prejudicial to the Labour members) in which Mr Baker would have it.
Mr Millar asserts that the circumstances giving rise to the investigation into the applicant's conduct were closely connected with party politics on the Council. Mr Bryant, he says, had apparently delayed notification of the statutory committee allocations in order to give the largest party more time to decide on the composition of its grouping and thereby possibly achieve overall control - which would in turn benefit that party in those allocations. The investigation into the applicant's behaviour had then been commenced at the behest of Mr Bryant, without any formal complaint from Mr Johnson, the very person, says Mr Millar, who had allegedly been criticised for following his instruction to delay the allocations. Apart from Mr Fennell (one of Mr Bryant's subordinates), who gave only hearsay evidence arising out of his investigation, the only witness before the Committee was Mr Bryant himself. Much of the other hearsay evidence came from Miss Harman, Mr Bryant's personal assistant. In these circumstances, submits Mr Millar, there was plainly a real danger of bias against the applicant at the hearing within the meaning of the test laid down by Lord Goff of Chieveley in R v Gough [1993] AC 646, 668B-E. The principal danger, according to Mr Millar, was that majority party councillors would want to ensure a finding against the applicant, either in order to defend the position of Mr Bryant (which, he asserts, was clearly hostile to the applicant) and/or by reason of party allegiance and/or personal hostility towards the applicant.
I cannot accept these submissions. There is no general requirement for an "independent element" on such a committee. In this connection, as Mr Baker commented, it may be noted that Lord Nolan's Committee was not inclined to be prescriptive about how a Standards Committee should operate (see paragraph 178 of the report), though it considered (paragraph 179) that it would often be "sensible" to have one or more co-opted members from outside. Mr Baker submitted, and I agree, that it is extremely tenuous to suggest that the genesis of the proceedings was closely connected with party politics. The uncertainty about the political groupings on the Council, and the consequent uncertainty about allocation of committee seats, was, as it seems to me, merely the occasion for the incident between the applicant and Mr Johnson which, somewhat in the manner of the straw that broke the camel's back, brought virtually to breaking point what had obviously been for some time the deteriorating relationship between the applicant and certain members of the Council's staff. As I have already said, there can be no suggestion that Mr Bryant acted other than entirely impartially as between the political groupings, as he was required to be, in deciding to delay the calculation of committee seats. Moreover, as Mr Baker points out, the decision to place the allegation of misconduct before the Committee was entirely that of Mr Bryant, and not councillors. There is nothing in the evidence I have seen to suggest that members of the Committee would have been particularly motivated either to defend the position of Mr Bryant or by hostility to the applicant. Indeed the Committee decided to take no action beyond stating its conclusion that the applicant's conduct "fell short of the highest standards", in other words, the Committee did not do what, on Mr Millar's view of him, Mr Bryant would have wanted them to do.
In the circumstances, there was in my judgment no "real danger" of bias.
Formulation of charges
Mr Millar submits that properly particularised disciplinary charges should have been formulated, whereas the applicant was required to defend herself against Mr Fennell's report which contained, he says, unparticularised instances of, for example, "aggressive" behaviour.
I cannot accept this complaint as having any real basis. I have already described Mr Fennell's report, and set out under eight headings the specific instances of "improper behaviour" alleged in the report. Mr Fennell's report very carefully set out each witness's allegations and copies of their statements were, as I have said, attached to his report. It is true that the report and the attached statements contained a number of what I have called general and unparticularised allegations against the applicant, but the specific allegations were all particularised in what seems to me to have been adequate detail.
In my judgment it was sufficiently clear to the applicant from Mr Fennell's report and its attachments what the substance of the complaint against her was. There was no need for "charges".
The right to cross-examine
Mr Millar complains that the case that the applicant was required to meet was simply an investigation report, compiled by an officer of the Council answerable to Mr Bryant, who had commissioned it, that Mr Fennell had prepared the statements attached to the report by asking his own questions and writing up drafts for the witnesses to sign, and all that without ever interviewing the applicant. He observes that there had been no complaint from Mr Johnson in connection with the telephone conversation on 7 May 1999, and that although the applicant's solicitors had asked for access to the background papers nothing had been provided. In these circumstances he submitted that the applicant should have been afforded the right to cross-examine any witness whose evidence was to be relied upon.
Mr Baker submits that it was a matter for the investigating officer as to which witnesses he chose to call before the Committee. In paragraph 3.3 of his report, which I have already set out, Mr Fennell had reminded the Committee of the need to be careful about the weight to be given to hearsay evidence. The applicant had the opportunity to question the investigating officer, Mr Fennell, and Mr Bryant, and to give evidence. In the circumstances, says Mr Baker, there was no requirement to compel the attendance of other witnesses, so that they could be cross-examined. I agree.
Identification of sanctions
Mr Millar says that it was plainly unfair to require the applicant to decide how best to defend herself against a report such as Mr Fennell's without any indication of the range of sanctions which the Committee considered were available to it as "appropriate action". In the light of events as they happened, I do not agree. No action beyond `naming and shaming' was in fact taken by the Committee. If any particular action had been contemplated by the Committee, or by the investigating officer at the meeting, this could - and no doubt would - have been dealt with as and when the situation arose. It did not, so the point does not arise.
Generally
Standing back, and looking at the matter in the round, I ask 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.
For all these reasons I reject Mr Millar's submission that the proceedings against the applicant before the Committee were unlawfully unfair.
CONCLUSION
It follows that this application for judicial review must be dismissed.
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