England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		22 March 2007

Mr Justice Keith:

Introduction

1. There is an association in North London called the Bridge NDC Seven Sisters Partnership ("the Association"). It is funded by central government and works closely with the London Borough of Haringey. It is run by a partnership board ("the Board"). On 22 September 2004, the Board resolved to remove the claimants, Joyce Oyeyi-Effiong and Ibiola Campbell, from membership of the Board, from any sub-body of the Association, and from any office of the Association. Their removal was to be permanent, i.e. for the life of the Association. In this claim for judicial review, the claimants challenge their removal on a number of grounds.

The procedural history of the claim

2. Permission to proceed with the claim was originally refused by Paul Walker J on a consideration of the papers. The claimants asked for that decision to be reconsidered at a hearing. Following such a hearing, Mitting J refused the claimants permission to proceed with their claim. The claimants appealed against that decision to the Court of Appeal. On considering the papers, Carnwath LJ gave the claimants permission to appeal on two of the grounds relied upon, but refused them permission to appeal on the others. He confirmed that refusal at a subsequent hearing. His initial view was that there should be a "rolled-up" hearing in the Court of Appeal of (a) the appeal against the refusal of permission to proceed with the claim and (b) the substantive claim itself, no doubt only on the grounds for which permission to appeal had previously been given. However, he subsequently ordered that the case be remitted to the Administrative Court, since he had decided, pursuant to rule 52.15(3) of the Civil Procedure Rules, to grant the claimants permission to proceed with the claim for judicial review, albeit on the limited grounds he had previously identified.
3. There are two other procedural matters which arise. First, the claim form names only Ms Oyeyi-Effiong as a claimant. A claim form for Ms Campbell's claim was prepared, but it was never issued. Certainly, the copy of it in the bundle of documents prepared for this hearing does not have the Administrative Court Office's stamp on it, and a CO number has not been assigned to it. That was not the fault of the Administrative Court Office. When the claim forms were lodged for issue, they were both in a bundle with the evidence relied upon by the claimants, but the index to the bundle only referred to one claim form. The fact that Ms Campbell's claim form had never been issued was overlooked. It was not spotted by the claimants' advisers, and those advising the Board understandably proceeded on the assumption that both claim forms (copies of which had been sent to them) had been issued. But the problem can be resolved. In the course of the hearing, I gave permission for Ms Oyeyi-Effiong's claim form to be amended by adding Ms Campbell's name as a claimant and for such consequential amendments as are necessary to be made. Now that this has been done, I extend Ms Campbell's time for bringing her claim to today, and I grant her permission to proceed with her claim on the grounds for which Carnwath LJ gave leave.
4. Secondly, the claim form names two defendants: the Association itself, i.e. the Bridge NDC Seven Sisters Partnership, and the Board. Mr Sibghatullah Kadri QC for the claimants accepted that that was inappropriate, and provided that the decision of the Board to remove the claimants is one which is amenable to judicial review, he was content for the Board to be treated as the only defendant. After all, it was the Board's decision which was being challenged.

The background facts

5. NDC stands for New Deal for Communities. It is a key programme in the Government's strategy to regenerate deprived areas. It is intended to give those neighbourhoods the resources to tackle their problems in an intensive and co-ordinated way, with the aim of bridging the gap between them and the rest of the country. Local partnerships are formed to identify the pressing needs of their particular neighbourhoods and to propose appropriate solutions to combat local problems. The funding provided to the partnerships to implement their proposals comes from the Office of the Deputy Prime Minister under the discretionary grant-making power contained in section 126(1) of the Housing Grants, Construction and Regeneration Act 1996.
6. The Association is one of ten NDC partnerships in London. In 2001, the Government offered to contribute up to £50.121m. to the cost of the proposals set out in its delivery plan. But as with other NDC partnerships, the grant is not paid to the Association itself. It is paid to an "accountable body", usually (though not always) the relevant local authority. It is the local authority who is accountable to central government for the use of the funds. In the case of the Association, the accountable body is the London Borough of Haringey.
7. Each NDC partnership has its own separate constitution. There is no standard form, and the various constitutions differ from each other. The Association's constitution shows that its status is that of an unincorporated association. Its principal organ is the Board, which by clause 6.1 of the constitution is "responsible, in co-operation with the Association's Accountable Body (Haringey Council) and the Government Office for London, for the overall direction, management and operation of the Association." Membership of the Association is limited to members of the Board. That is the effect of clause 3.1 of the constitution, which provides: "The Association membership shall be the membership of the Partnership Board."
8. The Board's terms of reference specify the membership of the Board. It has 23 full voting members. They consist of 12 local residents who were originally elected every three years, but are now elected for four, and 11 representatives of local and community bodies who are appointed annually. The electorate for the elected members is confined to residents within the Association's area, and the elections are supervised by the Electoral Reform Society. The Board can also co-opt up to six other members, but they do not have voting rights on the Board. The two claimants were both local residents who were elected to the Board for three years in 2001.
9. On 9 March 2004, a meeting of the Association's Health and Social Care Theme Group took place. It was chaired by Randolph Flatts. After the meeting, the Association received three complaints about the behaviour of the claimants at the meeting. One complaint was from Dr Ann Marie Connolly, the Director of Health Improvement at the Haringey NHS Primary Care Trust. She had not been at the meeting, and therefore she was only going on what she had learned from people who had been there. She wrote:

"There are a number of key problems that emerged at this meeting as follows:

1. Aggressive behaviour in general and in particular directed towards the Theme Group Manager.

2. A general disregard for the functioning of the group and processes within that.

3. A disregard for the actual Chair of the group who was acting in the absence of Richard Reynolds.

4. Unacceptable behaviour directed towards a voluntary sector body that had been invited to present their work to the group.

I have discussed this with Di Janus [the Health Theme Group Manager] and I have also seen written accounts of the meeting. I have also discussed with Cameron Lugton a member of my team who attended on that night and also on previous evenings. Particular concerns were raised about the behaviour of Joyce Oyeyi-Effiong and Ibi Campbell [the claimants] who are local Board members, and […] who are unhappy about the allocations to their projects.

I do not think that it is acceptable that a manager should be treated in the way in which Di Janus was treated. This goes against our code of conduct for the NDC. Di has worked tirelessly to deliver projects and to keep members informed but no explanation seems to satisfy the members who were showing particularly disruptive behaviour.

Behaviour at meetings needs to take place in line with our code of conduct for meetings. Chairs need to be respected."

The references to "our code of conduct" were references to the Association's Code of Conduct by which members of the Board were bound.

10. Another complaint came from the Council itself. It was written by Frank Booth, the Head of Health, Safer Communities and Voluntary Sector. He had not been at the meeting either, and so he was also going on what he had been told. He wrote:

"Recent meetings of the theme group have become very difficult and unproductive due to the destructive behaviour of two board members. At the last meeting The First Step Trust had been invited to give a presentation outlining the café training project that they have been commissioned to provide. I understand that First Step gave an excellent presentation but were aggressively interrupted and insensitively interrogated by the two members of the New Deal [for] Communities Board. First Step Trust maintained their professionalism throughout and managed the process well …

I understand that inappropriate behaviour by the individuals continued throughout the remainder of the meeting. One board member continually interrupted with 'points of order' to the chair as a means to dominate and manipulate all discussion. Their views were not representative of the majority and they would not listen to others when their opinion differed. They were obstructive and challenging on issues of procedure, either argued or disagreed with most of the suggestions that the theme group manager made in order to move the discussion on. I am therefore concerned that these individuals are using their position of joint Chair of the Finance and Performance Scrutiny Committee to dominate the proceedings of this theme group. It does not promote confidence in the integrity or professionalism of the New Deal for Communities Board to any group members or visitors in attendance at meetings.

In conclusion I am concerned that if this situation is not resolved quickly and effectively, that other health theme group members and in particular local residents, will cease to attend the meetings. This will mean that the process will no longer be inclusive and equitable and defeats the original vision of the New Deal for Communities programme."

The two claimants were the chair and vice-chair of the Finance and Performance Scrutiny Panel (which was what Mr Booth was referring to), and so this letter was referring to them. It is plain that Mr Booth was complaining not only about their behaviour at the meeting on 9 March 2004. His reference to "recent meetings" of the theme group having become very difficult and unproductive because of the claimants' behaviour shows that their conduct at other meetings was being criticised as well. Dr Connolly had been making much the same point when she had spoken of "previous evenings" in the context of concerns having been raised about the claimants' behaviour.

11. The third complaint came from Rina Nirmal, the co-ordinator of a project which provided services to the Association. She had been at the meeting. She wrote:

"I would like to register my unhappiness with the behaviour of two service providers and two local resident board members towards Di Janus and First Step Trust who were presenting their project on this occasion.

Language and physical behaviour was aggressive, rude, unprofessional and entirely unacceptable. Di and the First Step Trust were extremely professional in their response, but they should not have to deal with this sort of behaviour again.

Just as worrying were board members' consistent attempts to divert from the stated agenda, something the chair of the meeting and other service providers, including myself, were forced to intervene over on a number of occasions."

She ended her letter by asking the chair of the Association to

"… attend the next meeting [himself] to judge the problem and support Di herself, otherwise I and others will seriously consider sending our apologies. This would be a shame as it should be a place for sharing information and good practice. At present this is far from the case and the NDC process is being brought into disrepute."

It is accepted by Mr Kadri that Ms Nirmal was referring to the claimants in this letter.

12. These complaints were not the first time that the conduct of the claimants had been called into question. In 2002, the Board had considered two separate complaints about their behaviour. One related to a meeting which they had attended with officials from the Government Office for London at which they had criticised the Association, without having previously brought their concerns to the attention of the Board. The other related to their conduct as chair and vice-chair of the Health and Social Care Theme Group, which included "destructive criticism and the challenging of professional advice". Their behaviour was regarded by the Board as amounting to breaches of the Association's Code of Conduct. For their behaviour at the meeting with officials from the Government Office for London, they were censured. For their conduct at meetings of the Health and Social Care Theme Group, they were removed from the offices of chair and vice-chair of the theme group until they had successfully completed training in chairing meetings and working in partnership.
13. The three complaints about the claimants' behaviour at the meeting of 9 March 2004 and at other meetings were considered by the Board at a meeting on 7 April 2004. The Board decided to request the Government Office for London to appoint a neighbourhood renewal adviser to carry out an initial investigation into the complaints. The adviser's role would be to interview the complainants, the claimants and anyone else involved. If the adviser decided that there may have been a breach of the Association's Code of Conduct, a report would be made to that effect to a special meeting of the Board. The Board would then decide whether or not a breach of the Code had occurred. If it had, the Board would then have to decide whether to impose a sanction, and if so, what that sanction should be. The claimants were notified of all this by letter the following day, which also contained relevant extracts from the three letters of complaint.
14. It took some time for the Government Office for London to identify a suitable neighbourhood renewal adviser to conduct this investigation. One had been identified by the end of June 2004, but the adviser would not have been able to conduct the investigation "at least until late summer". However, by then the Association had been engaged in an internal debate for some time about the direction it was going. Feelings were running high. That had prompted the Government Office for London to suggest that the internal friction within the Association might benefit from mediation. It had identified two neighbourhood renewal advisers who were prepared to act as mediators. At that stage, someone had the idea that it might be possible for the complaints made against the claimants to be resolved by a similar process of mediation. It is unclear whether the idea came from the Government Office for London or from someone within the Association. The claimants have no doubt that it came from someone within the Association, and was seized upon as an opportunity to get out of the investigation by someone from outside which the Board had commissioned. But it struck the chair of the Board, Lorne Horsford, as a possible way forward. He prepared a report for the Board recommending that this course be adopted, stating that the Government Office for London had said that the advisers could be available "over the next few weeks".
15. The Board considered this report at a meeting on 30 June 2004. Those members of the Board who voted on the proposal unanimously agreed with it, subject to the claimants agreeing to it, and mediation was offered to the claimants as a way of resolving the issues which had arisen over their behaviour. It is not disputed that this initiative foundered over the claimants' unwillingness to respond to the offer. Accordingly, Mr Horsford wrote to the claimants on 1 September 2004 to notify them that as a result of their refusal to participate in a process of mediation, he had "no alternative but to proceed to a full Board hearing of the complaints against you". The letter went on to notify the claimants that a special Board meeting had been fixed for 22 September 2004. Copies of the three letters of complaint were enclosed with the letter, as was a report to the Board from Mr Horsford. The letter concluded:

"The meeting will be held in accordance with our Code of Conduct. It is [a] confidential meeting which only Board members and relevant senior officers may attend. It is not a public meeting. You may be accompanied at this meeting by someone to give support in presenting your case, please ensure that you inform me or Sean Burke [the Association's Acting Programme Director] of the name of anyone you wish to have supporting you. If you wish to present any written response to the allegations against you please ensure that a copy is sent to the office in time for despatch at least 14 days before the meeting (i.e. by the 7 September 2004)."

16. Mr Timothy Straker QC for the Board argued that by 1 September 2004 no decision had been made about how the complaints were going to be investigated. Mr Horsford's report merely contained a recommendation that the Board should consider the complaints, but it was open to the Board when it met on 22 September 2004 to take some other course – for example, to resurrect the previous proposal for an initial investigation by a neighbourhood renewal adviser. I do not agree. The reference in the letter of 1 September 2004 to the matter proceeding "to a full Board hearing of the complaints" suggests otherwise, and the whole of the letter's concluding paragraph implies that at the meeting the Board would be deciding whether breaches of the Code of Conduct had occurred. And if there had been any doubt about it, the agenda which accompanied the letter was crystal clear. The one item for consideration arose from the report of the chair, and that item was:

"To consider complaints concerning the behaviour of Board members Joyce Oyeyi-Effiong and Ibiola Campbell. The Board is to determine whether or not the alleged behaviour occurred and was in breach of the Code of Conduct. If either member's behaviour is found to be in breach of the Code of Conduct, the Board shall determine what sanctions to apply."

Finally, the minutes of the meeting of 22 September 2004 do not support Mr Straker's argument. They do not refer to any discussion about how the complaints against the claimants were to be investigated. As we shall see, this was a body which decided matters by formal vote. There was no vote on whether the Board should proceed to adjudicate on the complaints there and then. That that was what the Board was about to do was taken as read.

17. It has not been argued that Mr Horsford did not have the power to take it upon himself to decide, once mediation was no longer a viable option, that the Board should proceed to investigate the complaints itself rather than resurrect the proposal for an initial investigation by someone from outside the Association. His power derived from the Board's terms of reference which gave the chair the power to take decisions "on urgent matters that must be advanced too quickly for their inclusion in meetings". That power had been triggered because there was no meeting of the Board scheduled to take place between 30 June and 22 September 2004.
18. The decision to proceed straight to a meeting of the Board represented a shift in the Board's stance. If an initial investigation by a neighbourhood renewal adviser had been considered appropriate before mediation was mooted as a possibility, why was the proposal for such an investigation not resurrected after mediation had ceased to be a viable alternative? And why did Mr Horsford think that the issue concerning the claimants' conduct had to be conducted at a meeting of the Board without an initial investigation preceding it? No answer has been given to these questions, though one can readily understand why Mr Horsford would have wanted to proceed without an initial investigation from outside the Association. About six months had elapsed since the meeting which had given rise to the complaints about the claimants' behaviour, and things could not be allowed to drag on. If at the end of June a neighbourhood renewal adviser could only have conducted an investigation in "late summer", how much later would an investigation have been concluded by if attempts to find a suitable adviser were only to be started again at the beginning of September?
19. But that does not explain the decision to proceed straight to a meeting of the Board. The evidence of Cllr. Richard Reynolds, a previous chair of the Board, is that if an initial investigation was not to be carried out by someone from outside the Association, there should have been one by an officer from within the Association, who could then present their findings to a specially convened meeting of the Board. The Board could then consider their findings in the light of what the members whose conduct was being scrutinised and any witness they called had to say. No explanation has been given by the Board for why Mr Horsford chose not to have the complaints investigated in that way.

The previous claim for judicial review

20. The claimants were concerned about this turn of events. They suspected that politics had been behind the earlier decision to jettison the initial investigation by a neighbourhood renewal adviser in favour of mediation, as well as the subsequent decisions not to resurrect the proposal for such an investigation when mediation was abandoned and not to have the complaints investigated by an officer of the Association. Because they had themselves complained about the Board to the Government Office for London in the recent past, they did not think that the Board would give them a fair hearing. They thought that the Board wanted them out of the way, and would be using the complaints which had been made against them as a convenient pretext for getting rid of them. In any event, if the Board was to decide their fate, they wanted it to be done in the open, they wanted to be able to question their accusers, they wanted to be able to call witnesses to support their version of events, and they did not want members of the Board who either were, or were associated with, their accusers to be sitting in judgement on them. Most important of all, they wanted the criticisms of them to be considered in the context of the internal debate in which the Association had been engaged in recent months.
21. The claimants did not bring their concerns to the attention of the Board. Instead, on 20 September 2004 (two days before the meeting was due to take place) they issued a claim for judicial review challenging the Board's decision to hold the meeting. They applied for interim relief in the form of an order prohibiting the Board from proceeding with the meeting. As is usual with urgent applications for interim relief, the papers were placed before a judge immediately. The judge happened to be me. I refused the application for interim relief, and the reasons I gave were as follows:

"Although the claimants were notified by letter dated 1 September of the decision to convene a meeting of the Board on 22 September to consider the complaints against them, no explanation has been given why this claim was not lodged until 20 September. Nor is there any suggestion that the claimants have put to the Board their concerns about the meeting for the Board to consider. In any event,

(i) the fact that the meeting would not be in public should not prevent the claimants from asking the Board to permit relevant witnesses to be present at the meeting while they give evidence,

(ii) if there are members of the Board who have an interest in the outcome, such as Dr Connolly and Mr Warwick, they can be requested to play no part in the deliberations of the Board,

(iii) there is nothing in the papers to suggest that, to the extent that the claimants' accusers will be at the meeting, the claimants will not be able to question them,

iv) it is questionable whether the hearing is one which has to be in public, and

(v) I need to be persuaded that the Board is a public body amenable to judicial review.

As it is, the complaints against the claimants may be dismissed. In that event, no harm will have been done. But if the complaints are accepted, the claimants will then be able to challenge the hearing in such further proceedings as they may be advised to bring."

The reason why I needed to be persuaded that the Board was a public body whose decisions were amenable to judicial review was because I had not been provided with sufficient material about the legal structure of the Association or the Board, how the Association was funded and what its functions were.

22. The Association receives legal advice from the Head of Legal Services of the London Borough of Haringey. On this occasion it was being advised by Raymond Prince, the principal lawyer in the Housing and Litigation Department. When a copy of my order was received, Mr Prince sent a fax to the claimants' solicitors. That was on 21 September 2004. Three of the points he made are important. First, he confirmed that the meeting would take place in private. Secondly, any request for "the makers" of the complaints to be cross-examined about the complaints they had made would be considered as a preliminary issue at the meeting. Thirdly, the claimants were asked whether the witnesses they wished to call would be available. If they were not, the Board would consider the position at the meeting. The latter point was also made in letters sent to the claimants the same day by Mr Burke, who confirmed that they could call witnesses provided that they spoke to matters which the Board was investigating.
23. The claimants' solicitors replied to that fax by fax the next day, 22 September 2004. Five of the points they made are relevant. First, they continued to object to the meeting being held in private, arguing that the issue was one of considerable public interest, and open democracy demanded meetings which could result in elected members being removed from office to be held in public. Secondly, they claimed that the claimants would not get a fair hearing from the Board. They argued that that must have been the Board's own view for it to have originally had an initial investigation by someone from outside in mind. Thirdly, they wanted to know whether those who had made the original complaints would be called as witnesses. Fourthly, they wanted to know whether the meeting would be expanded to cover complaints other than those relating to the meeting on 9 March 2004. Finally, they asked for an adjournment until January 2005 because (a) one of their key witnesses was in Ghana and would not be returning to the UK for some time, and (b) they needed time to prepare statements from their witnesses. Unfortunately, this fax did not arrive in time for Mr Prince to see it before the meeting took place.

The Association's Code of Conduct

24. Before turning to the meeting itself, it is necessary to look at the Association's Code of Conduct. There is an overarching requirement in the Code requiring members of the Association "not at any time [to] conduct themselves in a manner which may reasonably be regarded as bringing the [Association] into disrepute", but for the most part the Code addresses how persons attending meetings of the Association should behave. Under the heading "Respect for each other", the Code provides:

"Everyone involved in the NDC in any capacity has the right to be treated with respect and as an equal. This requires everyone to act towards each other with tact, understanding and tolerance.

The NDC's success will depend on its ability to ensure that representatives work in co-operation and reflect the diversity of the community. It is important that all those participating are given an equal opportunity to express their views and to be treated with courtesy.

All participants attending any NDC meeting have a responsibility to conduct themselves in a way that does not cause offence to others or limit in any way other peoples' ability to participate in meetings."

Under the heading "Behaviour at meetings", the Code provides:

"The NDC holds a great many meetings and for these to run smoothly and safely, everyone must accept the conventions of meetings. Meetings will be run by a Chair, whose job it is to make sure everyone has a chance to speak uninterrupted and that all the business of the meeting is dealt with.

People attending meetings should attend at the designated start time, must accept the authority of the Chair to direct the meeting, must only speak when asked to do so by the Chair and must not interrupt others speaking. This is essential for the smooth running of meetings and people who are not prepared to abide by this will not be tolerated."

The Code goes on to deal with the sanctions available to the chair of a meeting in order to maintain control of the meeting. One of the provisions reads:

"Behaviour by members of a meeting

If a member of a meeting persistently disregards the ruling of the Chair by behaving improperly or offensively or deliberately obstructs business, the Chair may move that the member be not heard further. If the member continues to behave improperly after such a motion is carried, the Chair may move either that the member leaves the meeting or that the meeting is adjourned for a specified period. If seconded, the motion will be voted on without discussion."

25. The Code of Conduct also addresses the sanctions for breach of the Code. The relevant part of the Code is para. 5.2. It is headed: "Breaches of the Code of Conduct by Members of the NDC's Partnership Board, its Working Groups, Advisory Groups and Sub-Committees". It reads:

"All members of the Partnership Board and any of the other meetings listed above, have a responsibility to ensure that they adhere to all rules agreed by the Partnership Board.

Members may from time to time be asked to attend meetings and functions on behalf of the Partnership Board and should conduct themselves in a manner that does not reflect badly on the Partnership Board.

It is the individual and collective responsibility of members to ensure that the highest standard of conduct is maintained through peer review and guidance. However, persistent or serious breach of the Code of Conduct will be dealt with in the following way:

1. The Chair will, following an investigation if necessary, in the first instance rule whether a person is in breach of the Code of Conduct and/or if necessary, refer the matter to a special meeting of the Partnership Board (see 3 below).

2. The Chair has the right to seek removal from any immediate meeting of any person causing disruption or offence, or who is alleged to be in breach of the rules, by a two-thirds majority vote of the members present and voting at the meeting.

3. The Partnership Board has the right to propose sanctions for breach of the Code of Conduct which can include removal from the Partnership Board, its Sub-Committees and working and Advisory Groups of any person causing serious or persistent disruption or offence. A specially convened meeting of the Partnership Board must be convened giving 14 days notice to all Partnership Board Members and the Chair of any particular group concerned. The only item of business for that meeting shall be that of the discipline of the member concerned. If the meeting agrees the person concerned is in breach of the Code of Conduct, it shall decide the sanction from the following options in proportion to the seriousness of the breach of the Code:

To record censure of the person;

To remove the person from any office or other position within the NDC, including membership of any NDC sub-body, either permanently or for a specified period;

To suspend the person from membership of the Board (if appropriate) either for a specified period or until a condition (e.g. an apology or agreement to undertake training) has been fulfilled;

To make a public apology.

4. The person subject to removal may be accompanied by someone to give support in presenting his or her case against the proposed sanction.

5. The matter will be decided in the absence of the person under consideration by a vote of those members of the Partnership Board present at the meeting whose decision shall be final and binding."

Mr Horsford's report to the Board

26. The report to the Board which Mr Horsford prepared for the meeting on 22 September 2004 reminded members of the original decision for an initial investigation to be carried out by a neighbourhood renewal adviser who would report his findings to the Board, so that the Board could decide, in the light of that report, whether breaches of the Code of Conduct had occurred. It reminded members of the subsequent decision to resolve the issue by mediation, and it informed them of the claimants' unwillingness to respond to that initiative. It quoted relevant passages from the three letters of complaint. A number of documents were attached to the report, and having referred to those attachments, the report concluded:

"This information provides copies of the original letters of complaint and additional evidence showing that [the claimants] appear to have worked to orchestrate complaints against the Partnership Board and the Bridge NDC Programme. This external action has been disruptive and undermining and I believe brings the Programme into disrepute. It is my view that there is cause for the Board to consider to what extent there has been a breach of the Code of Conduct and to determine appropriate sanctions.

The behaviour complained about has related predominantly to the Health Theme Group causing difficulties in its work in delivering the programme. There is a third section of attachments illustrating the positive views of our communities for the achievements of this Theme Group."

It is unnecessary to go into the documents attached to the report in any detail. It is sufficient to state that they show a deep rift within the Association, with a faction within it calling itself the NDC Involvement and Empowerment Group complaining bitterly, both within the Association and outside it, about what it saw as the Association's profligate use of public funds and its lack of accountability.

27. However, the concluding paragraphs in Mr Horsford's report show that the claimants' allegedly offending conduct was not limited to their conduct at meetings. They were being criticised for having orchestrated complaints about the Board and the Association's programme with a view to undermining the Association's work and bringing that work into disrepute. Accordingly, the conduct of the claimants which the Board was being asked to address was not just their allegedly offending conduct at meetings, but the action they were said to have taken to whip up support for the complaints they were making about the Board.

The meeting on 22 September 2004

28. A number of people had been requested by the Board to attend the meeting so that they could give evidence if necessary. They did not come into the meeting, having been asked to wait outside. They were the authors of the three letters of complaint, Ms Janus, Joan Badcock (who worked for the Council and who had attended the meeting on 9 March 2004) and the Rev. John Wood. I do not know what he would have been able to contribute to the issues under discussion. Having chaired the meeting on 9 March 2004, Mr Flatts would have been a highly relevant witness – if only to explain why, if the claimants' behaviour had been as bad as the complainants were saying, he had not exercised his power under the Code of Conduct to move that the claimants should not be heard further. Mitting J was told that the reason why he had not been invited to the meeting was because he was convalescing from surgery and would have been unable to attend. There is no evidence about that, but I was not told that what Mitting J had been told was being challenged, and I therefore proceed on the assumption that that was the reason why Mr Flatts had not been invited to attend.
29. The meeting was not chaired by Mr Horsford. Since he was going to speak to his report, the meeting was chaired by another member of the Board, Inspector Neil Hutchison of the Metropolitan Police. What occurred at the meting comes mostly from the minutes, but witness statements from Insp. Hutchison, the claimants and two members of the Board who were aligning themselves with the claimants, Cllr. Reynolds and Shillum Levi, also deal with what was said.
30. The minutes of the meeting are relatively lengthy, but ignoring those parts of the discussion which do not bear directly on the issues which the claim raises, the minutes show that the claimants were objecting to the meeting proceeding without a response to the points made in their solicitors' letter. A copy of the letter was handed to Insp. Hutchison and passed round. The claimants claimed that they had not had time to get their witnesses, and that they could not have a fair hearing if the people they were complaining about – presumably the other members of the Board who were not part of their faction – were to sit in judgement on them. It also looks, from a comment which the minutes attribute to an official from the Government Office for London who attended the meeting as an observer, that Ms Oyeyi-Effiong was complaining about the lack of an initial investigation by a neighbourhood renewal adviser, though whether she was complaining about the abandonment of such an investigation in favour of mediation, or about the non-resurrection of that proposal when mediation foundered, is not clear.
31. Insp. Hutchison's response to the claim that the claimants could not have a fair hearing was that the Code of Conduct provided for the Board to decide whether there had been breaches of the Code, and "it would be an impossible situation if the subject of a conduct inquiry could prevent Board members from carrying out their duty by complaining against them," As for the lack of time for the claimants to organise their witnesses, Insp. Hutchison said that "[w]hilst they had not been specifically informed that they could call witnesses they equally had not been told that they could not. If they wished to do so it would have been a simple matter to clarify and arrange this prior to the meeting." Insp. Hutchison also objected to Ms Oyeyi-Effiong's use of the word "trial". He did not consider it appropriate to refer to the meeting as a trial, or to "attempt to introduce court procedures".
32. It looks as if Insp. Hutchison may at times have thought that the court's refusal to grant an injunction prohibiting the meeting meant that the meeting had to go ahead. The minutes record him as saying fairly early on that "[g]iven the High Court's decision in relation to the meeting he could see no reason why it should not proceed now." They also record him later reminding members that "the purpose was to discuss these complaints and not to debate the NDC Board's right to hold the meeting an issue which he felt had been resolved in the High Court decision." In fact, the decision to proceed with the meeting that night was not cast in stone: following the court's decision, the Board had informed the claimants that they could call witnesses, but that if those witnesses were unavailable, the Board would have to decide how to proceed.
33. In the event, the claimants' request for an adjournment of the meeting until January 2005 was considered by the Board. The minutes say:

"Members felt that the issue had been affecting the work of the programme for too long and that it should be brought to an end. There seemed to be a desire on the part of [the claimants] to continually frustrate discussion of the complaints or their behaviour. There had been sufficient time since the notice of the meeting for [the claimants] to ensure any witnesses were available and ready to present their views; they had been able to raise with the Chair of the Board or the Acting Programme Director their wish to bring witnesses to the meeting at any time prior to the meeting. The fact that complaints had been made that would be considered by the Board had been known since the April meeting. The Board did not agree to an adjournment."

34. The members then proceeded to consider the complaints. Cllr. Reynolds made the point that the minutes of the meeting of 9 March 2004 had not revealed any "bad behaviour" on the part of the claimants. The chair of the Health and Social Care Theme Group (not Mr Flatts) commented that the minutes had not yet been approved since the theme group had been suspended and because of the disruption at the meeting. She also commented that the minutes of the meetings of the theme group recorded the decisions which were made and the action to be taken, and were not a full record of everything which was said. Having seen those minutes, I do not think that this comment can be correct, but the fact is that the minutes were not attached to the report provided to the members of the Board, no doubt because they had not been approved.
35. There was then a discussion about the witnesses who the Board had asked to attend. The minutes summarise that discussion as follows:

"Chair endeavoured to include witnesses in the interests of parity and fairness. He suggested that the witnesses who had been asked to wait outside the meeting should only be called if [the claimants] wished to question them. He then asked [the claimants] if they did wish to question the witnesses. [The claimants] felt that only one side of the story would be heard. Chair asked [the claimants] to comment on how the witnesses they may have wished to call would aid the Board in its deliberations. [Ms Oyeyi-Effiong] requested to minute that there were concerns about the impartiality of the witnesses of the theme group meeting on 9 March 2004. It was proposed and agreed that, in the interest of fairness, the complainants and staff at the relevant meeting should only be asked into this meeting if [the claimants] wished to question them. Despite repeatedly asking [the claimants] to indicate if they wished to question the complainants or the officers, there was no response. It was pointed out that at no time in the meeting had [the claimants] addressed the complaints' contents, they had continually challenged the process.

After further discussion and consideration, following confirmation by [the claimants] that they did not want to question the complainants or officers who had attended the March theme group meeting and the views of all other members of the Board that they did not wish to question the complainants, it was agreed not to ask the complainants to attend and to move on to a private discussion and decision process."

36. In his witness statement, Insp. Hutchison made the point that at no time did the claimants seek to engage with the issues which the meeting was addressing or offer any substantive defence or response. If the minutes are anything to go by, that is correct. The claimants' stance was that it was unfair to require them to engage with the process when their witnesses were unavailable and the members of the Board who would be judging them could not do so impartially. That should have been apparent to everyone at the meeting, even if the claimants had not said that in so many words. But there are two particular things which Ms Oyeyi-Effiong claims she mentioned to the Board which I must refer to. First, she claims that she kept on asking what she had done wrong, but she never got an answer. Secondly, when she was asked whether she wanted to question any of the witnesses who had been asked to come to the meeting, she claims that she said that she did not, because she did not know what her allegedly offending behaviour had consisted of. The minutes do not refer to Ms Oyeyi-Effiong making either of these claims, but that is not to say that she did not make them. Though full, the minutes are not verbatim and may not have been completely comprehensive.
37. Finally, Cllr. Reynolds' written statement makes one important point. He says that the Board decided not to ask the witnesses who came to the meeting to give evidence – not so much because the claimants did not want to ask them questions – but "to balance the inequity" of the claimants having been refused an adjournment to allow their witnesses to be available. That is not borne out by the minutes, but that is not to say that nothing was said along those lines. It is quite possible that one of the members of the Board expressed that view.
38. After asking the claimants and other non-voting members of the Board to leave, the remaining members of the Board discussed the matter. A variety of different views were expressed. The minutes set out some of them as follows:

"registered concern that the Board's policies/procedures in relation to addressing conduct procedures were not sufficiently clear;

reiteration that this was not a trial or hearing, but an issue of conduct of members and that the procedural issues raised by [the claimants] may be relevant to a trial or public body tribunal but that this meeting was neither of those. The NDC Code of Conduct had been accepted by all Board members including [the claimants] and was the relevant guideline for this meeting;

risk of losing the programme if Board members were not working together;

the fact that opportunities for conciliation were not taken up;

the view of failing the community by spending time, money and resources on this one issue."

39. I make three comments on that. First, these were the views of individual members. They may not have represented the views of the majority. Secondly, the comment that the meeting was neither a trial nor a meeting of a "public body tribunal" does not necessarily mean that the member who made that comment thought that the rules of fairness did not apply. It may be that the member was merely saying that technical rules of evidence and procedures appropriate to a court of law did not apply. Having said that, the possibility cannot be excluded that the member thought that the rules of fairness did not apply. If the member thought that, he or she was wrong. Thirdly, the list of views expressed did not include any discussion about whether the claimants had in fact behaved in the way which had been alleged against them, or whether that conduct amounted to a breach of those parts of the Code which addressed the need not to bring the Association into disrepute, to treat others with respect, to observe rulings of the chair and not to obstruct the business of meetings. That does not mean that those issues were not discussed, but if they were discussed, it is not without significance that whoever wrote the minutes did not regard them as sufficiently important to minute.
40. The Board then proceeded to a vote. Voting was by secret ballot. They concluded, by 9 votes to 0 with 2 abstentions, that Ms Oyeyi-Effiong had acted in breach of the Code of Conduct, and by 8 votes to 1 with 2 abstentions that Ms Campbell had acted in breach of the Code. The Board then considered the question of the appropriate sanction. Peter Richards, the adviser to the Board, read out part of the Code. An issue has arisen about the part of the Code he read out. The minutes record him as reading out page 47 of the Code. That page contains the latter part of para. 5.2, starting half-way through para. 5.2.3 and after the Code had referred to "persistent or serious" breaches of the Code being dealt with in a particular way. If that is right, it may be that some members decided on the sanction of removal without realising that the breach of the Code which could trigger that sanction had to be persistent or serious. On the other hand, Mr Richards says that he read out the whole of para. 5.2 which starts at page 46 of the Code. That is what he told counsel for the Board at a conference with counsel on 14 December 2005 according to a note made by Mr Prince at the time. I have no reason to doubt that, and I proceed on the basis that it is correct.
41. The minutes record Mr Richards advising members that the Board could take into account the claimants' response to the sanctions imposed on them in the past for a previous breach of the Code. The minutes do not record anything else being said on the topic, and although I have seen the minutes of the meeting in 2002 when those sanctions were imposed, they were not among the documents attached to Mr Horsford's report. That is not to say that members knew nothing about those sanctions. I suspect that the claimants' conduct was a hot topic among members of the Board, and they would have known about the previous sanctions even if they had not known the details of the claimants' offending conduct. Indeed, Insp. Hutchison says that the Board took the previous sanctions into account.
42. Before deciding on the appropriate sanction, the Board asked the claimants to return to the meeting. They were told that it had been decided that they had been in breach of the Code of Conduct, and they were asked if they had anything to say. Ms Campbell had no comment to make, but Ms Oyeyi-Effiong repeated the complaints which she had made earlier. She said that the meeting was like a "kangaroo court". After they left the meeting, the Board discussed the appropriate sanction. The minutes record them as discussing "temporary suspension; permanent removal from the Board; the effects on various theme groups; and timescales in terms of replacements". Voting was by a show of hands. They decided by 9 votes to 0 with 2 abstentions that the claimants should be removed from the Board, any sub-body of the Association and any office of the Association. By 8 votes to 1 with 2 abstentions, they decided that the claimants' "removal and exclusion" should be permanent, i.e. for the life of the Association.

Amenability to judicial review

43. When giving permission to appeal, Carnwath LJ noted that it had been accepted, for the purpose of the hearing before Mitting J, that the Board was a public body for the purpose of judicial review. His view was that the Court of Appeal would need much more information about the legal status of the Board. He wanted the proceedings to be drawn to the attention of the Government Office for London, so that they could provide the court with the necessary background and statutory framework.
44. Having considered the matter carefully since then, the Board has expressly conceded that the decisions it made to remove the claimants from the Board, from any sub-body of the Association and from any office of the Association for the life of the Association are amenable to judicial review. It makes no such concession about other decisions which it makes. Neither the Government Office for London nor the Department for Communities and Local Government accept that other decisions of the Board or the Association, or of any other NDC Partnership or its Partnership Board, would necessarily be amenable to judicial review. But they do not wish to contest the view taken by the Board about the decisions to which this case relates. In these circumstances, I do not think it appropriate to go behind the Board's concession, especially as the statutory provisions relating to the source of the Association's funding has been identified, and having regard to the Association's important public role in the regeneration of deprived areas.

The Board as the decision-making forum

45. Carnwath LJ gave the claimants permission to proceed with the claim on grounds 2 and 4 of the amended grounds of the claim for judicial review. Ground 4 related to the procedure which the Board adopted. Ground 2 related to the sanctions which the Board imposed. But included in ground 4, and therefore included in the grounds which Carnwath LJ may have thought were arguable, were two other arguments. One questioned whether the Board was the appropriate forum at all to consider the complaints. The other argued that its consideration of the complaints was premature. I must deal briefly with each of them.
46. The argument that the Board was not the appropriate forum for the determination of the complaints against the claimants is based on the assertion that they could not get a fair hearing from the Board because the members who were sitting in judgement on them would not be able to consider the complaints against them impartially. The way it was put in the amended grounds was:

"The claimants have made a formal complaint against the Board to the Government Office for London … That complaint is yet to be investigated by the Government Office. As the Chairperson of the Finance and Performance Scrutiny Panel, [Ms Oyeyi-Effiong] has made a formal complaint to the Audit Commission about financial irregularities … In the circumstances, the claimants could not possibly receive a fair hearing from the Board."

In his reasons for giving permission on ground 4, Carnwath LJ did not refer to this argument unlike most of the others. I can understand why not. The Code of Conduct identifies who is to rule on whether members of the Board have acted in breach of the Code: either the chair of the Board, or the Board itself at a special meeting. There is no power for any other body to rule on whether members of the Board are in breach of the Code. But in any event, Insp. Hutchison was right when he expressed the view that a meeting of this kind should not be put off simply because the Board itself was the subject of a complaint by the members whose conduct had been called into question. Otherwise, disciplinary meetings of this kind could easily be derailed by a complaint about the Board being lodged. It would have been different, of course, if the complaint had been made against particular members of the Board. It may then have been appropriate for those members not to participate in the meeting. It was not suggested that that was the case here.

47. The argument that it was premature for the Board to consider the complaints was based on the absence of an initial investigation by someone from outside the Association. The amended grounds said that the Association was "in breach of the minimum standard of fairness when it repudiated the fair process it started and decided to investigate the allegation by itself". I do not agree. The investigation by a neighbourhood renewal adviser was to be an "initial" investigation only. Although he or she would have prepared a report to the Board, it would still have been for the Board to decide whether breaches of the Code had occurred. Undoubtedly, the complaints had to be investigated, but there was no requirement for any initial investigation to be carried out by someone from outside. And although there is no evidence as to why the proposal for an initial investigation by someone from outside the Association was not resurrected when mediation foundered, there were in fact good reasons (see [18] above) for that proposal not to have been revived.
48. The decision for the Board to investigate the complaints itself, when its practice in the past had been for any initial investigation to be carried out by one of the Association's officers, is another matter. The absence of any evidence from Mr Horsford as to his reasons for proceeding as he did makes it difficult to say that the Board was justified in departing from its usual practice. But whether an initial investigation is required in any particular case is ultimately for the Board to decide, and had this been the only complaint which I had agreed with, I doubt whether I would have regarded it as justifying the quashing of the decisions which the Board reached.

The allegations of procedural unfairness

49. The claimants allege that the meeting of 22 September 2004 was infected with such procedural unfairness that the decisions which the Board reached should not be allowed to stand. This allegation has a number of components, and I must deal with each in turn.
50. Lack of information. One of the claimants' principal complaints is that prior to the meeting of 22 September 2004 they had not been provided with the information they needed. They had not been given a sufficient gist of the conduct for which they were being criticised, and they had not been informed which provisions of the Code of Conduct they were said to have broken. Carnwath LJ had an additional concern of his own. He queried whether the claimants had been given sufficient notice of the possible sanctions they faced in the event of the Board concluding that they had been in breach of the Code of Conduct.
51. If the only criticism of the claimants' conduct related to their behaviour at the meeting on 9 March 2004, I would have concluded that the letters of complaint from Dr Connolly, Mr Booth and Ms Nirmal contained sufficient information about the nature of the claimants' behaviour which was being criticised. But it was not just their behaviour at the meeting on 9 March 2004 which had been the subject of complaint. Their conduct at other meetings of the Health and Social Care Theme Group was being criticised in Dr Connolly's and Mr Booth's letters. No details about that conduct were ever given. But much more important than that was the conduct of the claimants to which the concluding paragraphs of Mr Horsford's report referred. Since the Board was to consider whether the claimants had been orchestrating complaints about the Board and the Association's programme with a view to undermining the Association's work and bringing that work into disrepute – which was the criticism of them in the concluding paragraphs of the report – they should have been told of the particular things which they were supposed to have done to achieve that aim. It should not have been left to them to work out what they were supposed to have done from the documents attached to the report. The lack of detail about these allegations may have been what prompted the claimants' solicitors to ask in their fax of 22 September 2004 whether the claimants would be asked to meet criticisms other than those relating to their conduct at the meeting on 9 March 2004.
52. The criticism of the Board for failing to spell out what the claimants had done in furtherance of their objective to undermine the Association's work was not one of the grounds for judicial review relied upon by the claimants. Its significance was presumably overlooked when the judicial review claim form was issued. Maybe Mr Horsford's report had not been provided to Mr Kadri when he drafted the original grounds for judicial review. Certainly, Mr Horsford's report was not among the documents which the claimants produced. But surprisingly it was not among the documents which the Board produced, when it filed its evidence in response to the claim, even though the letter to the claimants of 1 September 2004 and the agenda for the meeting of 22 September 2004 which accompanied it referred to Mr Horsford's report to the Board. A copy of the report was only provided to me on the second day of the hearing after I had asked to see it. In the light of that report, I have very considerable sympathy with the stance adopted by the claimants at the meeting – namely that they were not going to engage in the process while they did not know with sufficient precision (apart from their behaviour at the meeting on 9 March 2004) in what ways their conduct was being criticised.
53. I am far less concerned about the absence of any information being given to the claimants about the provisions of the Code of Conduct which they were said to have broken, or the particular sanctions which they faced. They would – or at least should – have realised that their conduct at meetings of the Health and Social Care Theme Group which was being criticised amounted to breaches of those provisions of the Code which required attendees to accept the authority of the chair, to behave with tact, understanding and tolerance, to give other persons attending the opportunity to express their views, and not to cause offence. They would – or at least should – have realised that the criticism that they had orchestrated complaints about the Board and the Association's programme amounted to a breach of the provision of the Code which prohibited conduct which could reasonably be regarded as bringing the Association into disrepute. And since the letter of 1 September 2004 informed the claimants that the meeting of 22 September 2004 was a special meeting of the Board (in place of the one scheduled for that date) held in accordance with the Code of Conduct, the claimants would – or at least should – have realised that it was a "specially convened meeting" of the Board to which para. 5.2.3 of the Code of Conduct related. Accordingly, they would – or at least should – have realised that the sanctions which could be imposed in the event of a breach of the Code were those set out in para. 5.2.3.
54. There is one other topic on which the claimants were not given any proper notice, and that was the form that the meeting would take. The Code of Conduct did not address that at all. Presumably it was thought best to leave it to the good sense of members of the Board, giving them the flexibility to adapt their procedures depending upon the nature of the complaints. But given that the complaints were not to be investigated by an officer of the Association, and on the assumption that the claimants were not going to admit the complaints made against them, how was the Board going to investigate the complaints? In relation to the complaint about the claimants' conduct at meetings, would the Board hear personally from the people who had made the complaints, or would the Board simply rely on what had been said in the letters of complaint? Even though Mr Flatts had not been well enough to attend the meeting himself, should not a statement have been taken from him about how he had viewed the claimants' behaviour at the meeting on 9 March 2004, and why he had not exercised his power under the Code of Conduct to move that the claimants be not heard further? If the Board was to hear personally from the people who had made the complaints, would the claimants be entitled to question them? How was the Board intending to investigate the complaint that the claimants had orchestrated complaints about the Board and the Association's programme with a view to undermining the Association's work? And in relation to all the complaints, could the claimants ask the Board to hear from people who the claimants claimed could support their case?
55. In view of the importance of the outcome of the investigation – namely the possible removal of elected members from a body entrusted with considerable public funds – all these questions should have been addressed beforehand, and the procedure to be adopted made known to the claimants. That was not done. It was only after the Board became aware of the reasons for the court's refusal of interim relief that some of these issues were considered. Even then, the claimants did not know where they stood. All they knew about whether "the makers" of the complaints would attend the meeting was that if they wanted to question them, that would be considered as a preliminary issue at the meeting. So they did not know prior to the meeting

(a) whether anyone would be asked to attend,

(b) if "the makers" of the complaints would be asked to attend, whether they would be the people who had written the letters of complaint, or since two of the letters were written by people who had not been at the meeting on 9 March 2004, whether they would be the people who the writers of the letters had got their information from, or

(c) whether they would be permitted to question them.

And although the claimants had been told on the day before the meeting that the Board would hear from people who the claimants claimed could support their case, the claimants did not know prior to the meeting what the Board would do if any of their witnesses were unavailable. In my view, fairness required them to have been given a much clearer picture of what form the investigation of the complaints at the meeting would take than they actually received.

56. The request for an adjournment. The reasons which members of the Board expressed for refusing the request for an adjournment contained in the claimants' solicitors' fax are set out at [33] above. What those reasons ignore was that it was only the previous day that the claimants had been notified that they could call witnesses. They should have been informed of that earlier. It is all very well saying that they could have asked the Board whether they could call witnesses themselves, but it had still been for the Board – who had, after all, decided upon this investigation and through its chair had convened this special meeting – to let the claimants know that they could call witnesses if they wanted to. It may be that the claimants should have taken steps to warn their potential witnesses to keep the evening of 22 September 2004 free in case they were permitted to speak on the claimants' behalf at the meeting. It would also have been prudent to ask the potential witnesses to prepare statements in support of the claimants in case they were not permitted to attend the meeting or were not able to do so that evening. But if the minutes are anything to go by, the Board did not inquire whether the witnesses would have been able to attend the meeting or to prepare statements, even if the claimants had been told on 1 September 2004 that they could call witnesses if they wanted to.
57. Two of the other reasons which members of the Board gave for refusing the request for an adjournment do not stand up to scrutiny. One was that the claimants were continually trying to frustrate discussion of the complaints. If that reason was based on the claimants' refusal to engage in the process, that was because the claimants had not been given the information about what they had done wrong (apart from their conduct at the meeting on 9 March 2004) to which they were entitled. The other was that they had known since April the complaints which would be considered. That is correct in so far as it relates to the complaints about their behaviour at meetings of the Health and Social Care Theme Group. It is not correct in relation to the complaint that they had been orchestrating complaints about the Board and the Association's programme with a view to undermining the Association's work.
58. I acknowledge that the claimants were not prepared to divulge what the witnesses they proposed to call would have said. Maybe they did not know that themselves at the time, because what the witnesses would have been asked to deal with depended upon the nature of the complaints which the claimants had to meet. But all in all, inconvenient though it was, and anxious though members of the Board were to get the issues relating to the claimants' behaviour resolved, the Board did not, in my view, give proper consideration to the request for an adjournment.
59. The Board's consideration of the complaints. The most serious of the criticisms of the Board is that it did not address the complaints made about the claimants. The discussion which the minutes record do not reveal any debate over whether the claimants had indeed behaved at the meeting on 9 March 2004 – or at other meetings of the theme group – in a way which could properly be criticised. Nor was there any reference in the minutes to any discussion about whether they had been orchestrating complaints about the Board and the Association's programme with a view to undermining the Association's work. If the minutes accurately reflect what was concerning members, what they show – leaving aside any concerns about or comments on procedural issues – is that members did not want things to drag on indefinitely, and that while there were different factions operating within the Association, continued funding for the Association's programme could be jeopardised. The minutes reveal a strong sense on the part of members of the Board that, whatever the rights and wrongs of the complaints about the claimants' conduct, something had to be done to bring the in-fighting to an end.
60. In short, because the claimants chose not to engage with the process, it looks as if the Board did not regard itself as under a duty to investigate the facts itself. The impression one gets from the minutes is that once the claimants had said that they did not want to question the complainants, the Board proceeded on the assumption that the complaints had been made out. At the very least, that possibility cannot be excluded.

The sanction of permanent removal from the Board

61. The sanction which the Board imposed for the claimants' breaches of the Code of Conduct was their removal from the Board, from any sub-body of the Association, and from any office of the Association for the life of the Association. It is unclear what the Board meant when it referred to their "exclusion", but no-one has suggested that this added anything to their removal. Mr Kadri argued that although the Code of Conduct provided for the temporary removal from the Board of members of the Board, it did not sanction their permanent removal.
62. The argument went like this. Of the four disciplinary sanctions identified by para. 5.2.3 of the Code, only the second option permitted permanent removal. But that option did not permit permanent removal from the Board. It only permitted permanent removal "from any office or other position within the [Association], including membership of any [Association] sub-body". The argument is that the power to remove "from any office or other position within the [Association]" did not naturally apply to the Board itself, since membership of the Board was not "an office or other position" within the Association. That was the provisional view of Mitting J and Carnwath LJ. For my part, I do not share their scepticism about this provision's application to membership of the Board. I am inclined to the view that membership of the Board is just as much an office as, say, the chair or vice-chair of the Board. A councillor of a local authority, for example, is treated by section 83(1) of the Local Government Act 1972 as having been elected to an office. Indeed, the provision in the Code has to be construed in the context of para. 5.2.3 as a whole, which says in its first sentence that sanctions for breach of the Code of Conduct can include "removal from the Partnership Board", as well as from its sub-committees and working groups, "of any person causing serious or permanent disruption or offence". So if the Code itself contemplates removal from the Board as a permissible disciplinary sanction – albeit the most serious – should not the one option for removal which the Code provides for be construed as including removal from the Board?
63. But even if the power of removal in the second option should not be construed as including a power to remove from the Board one of its members, the fact remains that that is what the Code contemplates, albeit only in the case of someone causing "serious or permanent disruption or offence". That was what Mitting J said gave the Board the power to remove from the Board permanently one of its members. Carnwath LJ did not disagree with that. His concern was that he had found no indication that the Board had regarded the claimants' behaviour as amounting to a serious or persistent breach of the Code, or that the claimants were told that that was how their conduct was being viewed.
64. I understand entirely the concerns which Carnwath LJ expressed, but he did not know that the whole of para. 5.2 of the Code had been drawn to the attention of the Board. There is no reason to suppose that members of the Board did not realise (a) that for a special meeting of the Board to be convened the chair had to have regarded the alleged breaches of the Code as having been either persistent or serious, and (b) that to impose one of the four sanctions expressly provided for by para. 5.2.3 the Board had to be satisfied that the breaches of the Code had to have caused serious or permanent disruption or offence. In these circumstances, the members of the Board who voted to remove the claimants from membership of the Board permanently must be regarded as having appreciated all that. And if the claimants had read the Code of Conduct, as they claim to have done, they would – or at any rate should – have appreciated all that as well.
65. Mr Kadri took a further point. Even if para. 5.2 sanctioned the claimants' permanent removal from the Board, that could only have meant their removal until their period of office expired, rather than for the life of the Association, because the current Board could not legislate for the composition of the Board once the period of office of its members had come to an end. That is not an argument I need address, because the effect of removing a member of the Board until their period of office expires is tantamount to removing them from the Board for the life of the Association, since a candidate for membership of the Board (whether by election, by appointment or ex officio) has to be able to declare that they have not at any time been removed from membership of the Board.
66. The fact that the whole of para. 5.2 of the Code was drawn to the attention of the Board disposes of another understandable concern which Carnwath LJ expressed. He noted that the four disciplinary sanctions identified by para. 5.2.3 of the Code were to be applied "in proportion to the seriousness of the breach of the Code", but he could not see anything which showed that the members of the Board were aware of that, or that they had considered any alternative to the claimants' removal from the Board. However, since the whole of para. 5.2 was drawn to the attention of the Board, its members must be regarded as having been made aware of the various disciplinary sanctions available to them. Indeed, the minutes of the meeting show that they discussed at least one sanction other than the claimants' permanent removal from the Board, namely their temporary suspension, and Insp. Hutchison's witness statement confirms that. It was not contended by Mr Kadri that, if the Board had the power to remove the claimants permanently from the Board, the adoption of that sanction was not within the range of reasonable responses open to the Board in the light of what the claimants were supposed to have done.
67. For these reasons, I have concluded that the Board had the power to remove the claimants permanently from the Board, that members of the Board were alive to the various disciplinary sanctions which the Code of Conduct enabled them to impose, and that the exercise of the power of removal was not unreasonable in the public law sense in the light of the conduct for which the claimants were being investigated. However, all of that presupposes that the conclusion that the claimants had acted in breach of the Code had been reached by a process which was itself not procedurally flawed. I have concluded that, for the reasons set out in [50]-[60] above, the process was procedurally flawed.

Relief

68. The relief originally sought by the claimants included an order for their reinstatement to the Board. That is no longer possible since their terms of office, had they not been removed from the Board, would have come to an end by now. Their only route back to membership of the Board is by election, by appointment or ex officio. Accordingly, the only relief which can be granted to them now is the quashing of the decisions made in their cases, and an appropriate declaration about their right to be members of the Board in the future. Mr Straker contended that too much water has flowed under the bridge for even these to be appropriate remedies, especially as the funding for NDC programmes by central government was intended to last for only ten years. I am completely unpersuaded by that argument. It is important that the claimants' former constituents be represented by persons of their choice, and there has never been a fair determination by the Board of the allegations which were said to justify the claimants' removal from the Board. And although funding by central government is not indefinite, the plan is for partnerships like the Association to become self-financing from assets which they hold themselves or which are to be transferred to them by their "accountable body". Accordingly the removal of funding by central government will not necessarily result in the Association being disbanded.
69. In these circumstances, the relief which I grant the claimants is an order quashing the decisions that they acted in breach of the Code of Conduct, and that they be removed from the Board, from any sub-body of the Association, and from any other office of the Association for the life of the Association. I also declare, subject to [70] below, that their purported removal from the Board did not have the effect of preventing them from being considered for membership of the Board in the future, whether by election, by appointment or ex officio.
70. There are a couple of remaining issues upon which I was not addressed. The claimants may wish to stand for election to the Board again. For its part, the Board may regard it as inappropriate for the claimants to stand for election – or, if elected, to take up office as members of the Board – while the allegations made against them have not been properly (in the sense of fairly) adjudicated upon. That raises the question whether, now that the claimants are no longer members of the Board, the Board can nevertheless reconsider the allegations made against the claimants for the purpose of reaching a conclusion whether they would have been removed from the Board if they had still been members of it – a conclusion which could prevent the claimants from standing for election to the Board again. And if the Board cannot do that, and if the claimants are able to stand for election to the Board again and are elected, the question which then arises is whether the Board can at that stage reconsider the allegations made against the claimants in respect of their conduct during their previous terms of office. Since I was not addressed on these issues, I have not considered them further, but I give the parties liberty to restore this claim for those issues to be considered, since they might affect the nature of the declaration to which the claimants are entitled.
71. As I told the parties at the conclusion of the hearing, I do not want to put them to the expense of having to attend court when this judgment is handed down, and I leave it to them to see if they can agree costs. But if the parties cannot agree an appropriate order for costs within 14 days of the handing down of this judgment, they should refer the issue to me, and I will decide the appropriate order to make without a hearing on the basis of any written representations which are made. If either party wishes to apply for permission to appeal, their solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing. However, any appellant's notice will still have to be filed within 21 days of the handing down of this judgment.