QUEEN'S BENCH DIVISION
B e f o r e :
| THE QUEEN
(on the application of) ELIZABETH HARVEY
|- and -
|LEDBURY TOWN COUNCIL
HEREFORDSHIRE COUNTY COUNCIL
Ms Lisa Busch Q.C. (instructed by Winkworth Sherwood LLP for the Defendant
Hearing dates: 17 April 2018
Crown Copyright ©
Mrs Justice Cockerill:
i) The Decision was ultra vires, such matters being within the ambit of the Code of Conduct for Councillors, which was found not to have been breached.
ii) In the alternative, it was substantively unfair, being in breach of Article 10 ECHR or substantively unfair at common law; and / or
iii) It was procedurally unfair as regards (paraphrasing somewhat) absence of investigation, absence of identified basis, absence of disclosure to the decision-making body of full evidence, absence of opportunity to respond or to defend herself.
The Legal Backdrop to Ground 1
"Subsidiary powers of local authorities.
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 …".
i) Section 27(1) of the Localism Act 2011 requires a "relevant authority" to "promote and maintain high standards of conduct by members and co-opted members of the authority".
ii) "Relevant authority" includes a parish council: s.27(6)(d). (It should be noted that legally the Council is a parish council.)
iii) Section 27(2) provides that, "in discharging its duty under subsection (1), a relevant authority must, in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity".
iv) Section 27(3) permits a relevant authority that is a parish council to comply with subsection (2) by adopting the code adopted under that subsection by its "principal authority". "Principal authority", in relation to a parish council, means the county council for the county that includes the parish council's area: s.29(9)(c). This is, in the present case, the Herefordshire Council ("the LA"). The Council is a parish council for that purpose and, in adopting the Code of the LA, complied with its obligation under s.27(2).
v) A county council in England (such as the LA here) is also a "relevant authority": s.27(6)(a)). Cllr Harvey is a "member" of the Parish Council for the purposes of s.27.
i) Sections 28(1)-(3) make provision for the contents of codes and are not in issue in this case.
ii) Section 28(4) provides:
"(4) A failure to comply with a relevant authority's code of conduct is not to be dealt with otherwise than in accordance with arrangements made under subsection (6); in particular, a decision is not invalidated just because something that occurred in the process of making the decision involved a failure to comply with the code".
iii) Subsections 28(6)-(9) set out the statutory process for investigating and determining complaints that a member has failed to comply with a code (as distinct from the statutory requirement for a relevant authority to adopt a code).
iv) Subsection (6) provides that:
"(6) A relevant authority other than a parish council must have in place- arrangements under which allegations can be investigated, and arrangements under which decisions on allegations can be made".
v) Subsection (7) states:
"(7) Arrangements put in place under subsection (6)(b) by a relevant authority must include provision for the appointment by the authority of at least one independent person—
(a) whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate, and
(b) whose views may be sought—
(i) by the authority in relation to an allegation in circumstances not within paragraph (a),
(ii) by a member, or co-opted member, of the authority if that person's behaviour is the subject of an allegation, and
(iii) by a member, or co-opted member, of a parish council if that person's behaviour is the subject of an allegation and the authority is the parish council's principal authority.".
vi) "Independent person" is defined in detail in s.28(8):
"(8) For the purposes of subsection (7)—
(a) a person is not independent if the person is—
(i) a member, co-opted member or officer of the authority,
(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority, or
(iii)a relative, or close friend, of a person within sub-paragraph (i) or (ii);
(b) a person may not be appointed under the provision required by subsection (7) if at any time during the 5 years ending with the appointment the person was—
(i) a member, co-opted member or officer of the authority, or
(ii) a member, co-opted member or officer of a parish council of which the authority is the principal authority;
(c) a person may not be appointed under the provision required by subsection (7) unless—
(i) the vacancy for an independent person has been advertised in such manner as the authority considers is likely to bring it to the attention of the public,
(ii) the person has submitted an application to fill the vacancy to the authority, and
(iii) the person's appointment has been approved by a majority of the members of the authority….".
vii) Subsection (9) provides
"…. "allegation", in relation to a relevant authority, means a written allegation—
(a) that a member or co-opted member of the authority has failed to comply with the authority's code of conduct, or
(b) that a member or co-opted member of a parish council for which the authority is the principal authority has failed to comply with the parish council's code of conduct."
viii) Section 28(10) deals with relatives and is not relevant in this case.
ix) Section 28(11) states:
"(11) If a relevant authority finds that a member or co- opted member of the authority has failed to comply with its code of conduct (whether or not the finding is made following an investigation under arrangements put in place under subsection (6)) it may have regard to the failure in deciding—
(a) whether to take action in relation to the member or co- opted member, and
(b) what action to take".
The LA's Code was set out in the Council's Standing Orders 30(a) and (b) which stated:
"a. On receipt of a notification that there has been an alleged breach of the code of conduct the Proper Officer shall refer it to the Monitoring Officer of Herefordshire Council.
b. Where the notification relates to a complaint made by the Proper Officer, the Proper Officer shall notify the Chairman of Council of that fact, who, upon receipt of such nomination shall, in conjunction with available members of the Standing Committee, nominate a person to assume the duties of the Proper Officer set out in the remainder of this standing order, who shall continue to act in respect of that matter as such until the complaint is resolved.
31. Where a notification relates to a complaint made by an employee (not being the Proper Officer) the Proper Officer shall ensure that the employee in question does not deal with any aspect of the complaint.…
g. References in Standing Order 30 to a notification shall be taken to refer to a communication of any kind which relates to a breach or an alleged breach of the code of conduct by a councillor".
"Members of the Ledbury Town Council Grievance Panel request that you meet with them in the Market House at 11.30 a.m. on Monday 29th February. The purpose of the meeting (which will last no longer than two hours) is to enable you to respond to the allegations made against you and allow members of the Grievance Panel to ask you questions for clarification. If you wish you may attend with a companion who is not directly involved in the matter but your companion will not be able to answer questions on your behalf. In attendance at the meeting will be the following members of the Grievance Panel and myself, to take notes:
To enable you to prepare your response, both officers have been asked to provide a pack of relevant information in support of their allegations and you will be able to collect a sealed pack from the Town Council offices from 10a.m. on Monday 15th February 2016. These packs must be treated as strictly confidential and none of the contents should be discussed or shown to anyone other than your identified companion or colleague.
Please confirm in writing that you are able to attend on 29th February and, if you intend to be accompanied, the name of your companion.
To ensure that the investigation can be conducted as fairly as possible it is requested that you keep the matter, and anything discussed at the investigation meetings, confidential".
"I take this accusation very seriously and consequently would like to report myself to the standards board via this complaint form so that this matter can be properly investigated. If I have acted in a way which breaches the councillor code of conduct I would wish to be informed as such and to be advised how best I should comport myself in future."
At the meeting, following oral debate, the Council resolved to impose a number of prohibitions on Cllr Harvey (and Cllr Harrison) and take additional steps. The minutes stated:
"5. CONSIDERATION OF ACTION IN THE LIGHT OF THE ABOVE DECISIONS
Following detailed discussion, and mindful of the Town Council's duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees and that failure to address the issue could result in a fundamental breakdown of trust and confidence between the Town Council as employer and its employees, it was RESOLVED to take the following action, in order to reduce contact between the two officers and the two concerned, and thereby help prevent the on-going bullying, intimidation and harassment of staff …"
i) she should not serve on any of the Parish Council's committees, sub-committees, panels or working / steering groups;
ii) she should not be eligible to substitute for a member of any of the Parish Council's committees, sub-committees, panels or working / steering groups;
iii) she should not represent the Parish Council on any outside body;
iv) all of her communication with the Clerk or Deputy Clerk should go through the Parish Council Mayor (or Deputy Mayor in his / her absence);
v) the LA be informed of the above actions taken by the Council;
vi) all bodies affiliated to the Council be informed of the above actions; and that the prohibitions should remain in place "until the Annual Meeting of [the Parish Council] in May 2017, when the matter may be reviewed".
"I do not feel that the current investigation being carried out by Herefordshire Council will change Councillor Harvey's behaviour. Her attitude towards us has not altered even after the Town Council upheld our complaint of bullying, harassment and intimidation and imposed actions ... At both the Full Council meetings held on 9th June and 21st July, we have come under attack for carrying out our duties; …"
"The prohibitions imposed on me in May 2016 … hollowed-out a core part of my councillor role. In particular: I was no longer able to sit on any committees, panels, working or steering groups (even by substitution for another member), could not represent the Council on any outside body (even if, for example, the Clerk or Deputy Clerk had nothing to do with such a body), and these prohibitions were to remain in place for at least a year (representing, in context, a very substantial amount of my time as an elected Councillor: my current term will conclude in May 2019). Whilst the prohibitions fell short of purporting to remove me as a Councillor altogether, they have had a very severe effect."
"…the problem you have is that the staff grievances allege bullying by two councillors. Clearly this is behaviour prohibited by the code of conduct. Therefore in my opinion although these staff have written these allegations within the grievance procedure their allegation is in fact that a member has failed to comply with the authority's code of conduct. As a result you know that my view is that such an allegation cannot be dealt with otherwise than in accordance with the arrangements made under s.28(6) of the Localism Act 2011.
I understand the duty of care to your own staff and why therefore you have followed the grievance procedure and made decisions at the extra ordinary meeting on 5 May. However this is in conflict with the requirements in the Localism Act ..."
i) The public participation session of the Standing Committee meeting (item 3) took place before the Committee referred to the "report on staff interviews" and discussed the prohibitions on Cllr Harvey (item 5).
ii) Cllr Harvey could not have been present during item 5. That is because, prior to item 5, a resolution was passed "to exclude members of the public and councillors who were not members of the Standing Committee" from the meeting.
i) In the public participation session, the husband of the Clerk was permitted to address the Standing Committee and "spoke of his concern for the health and wellbeing of the clerk in relation to the on-going actions of two members of her employing body (Ledbury Town Council) i.e. Councillors L Harvey and A Harrison". There appears to be no record of what he said.
ii) Thereafter, in private session, "Cllr E Fieldhouse reported that she and the mayor (Cllr D Baker) had interviewed staff to ascertain whether measures put in place by the Council in May 2016 had been helpful in improving their health, safety and welfare whilst at work". The evidence before me is that Cllr Fieldhouse "provided a verbal update to the Standing Committee meeting that we considered that there had been little or no improvement in Cllr Harvey's behaviour".
iii) The minutes then record that there was a discussion following which, for the same reasons as were recorded in relation to the EFCM in May 2016, the Standing Committee resolved to recommend to full Council not merely the continuation of the measures but also a further prohibition on Cllr Harvey, namely that she be restricted from communicating directly within "all office staff", (and not merely the Clerk and Deputy Clerk).
i) She had appointed an external firm (Paul Hoey Associates) to undertake an investigation into the Complaint;
ii) Paul Hoey Associates had used a solicitors' firm (Wilkin Chapman solicitors) to investigate the Complaints, gather further evidence, and produce a report. The Monitoring Officer had now received their conclusions;
iii) The Monitoring Officer had met with the independent persons on 28 April 2017 to consider the reports and had taken into account their views;
iv) The investigation had found, in relation to the Complaint, that there was no basis to support a finding that the Claimant had breached the Code; and the Monitoring Officer's decision was that there had been no breach of the Code, and she would be taking no further action on the Complaints.
On 11 May 2017, the Monitoring Officer wrote to the Mayor:
"I have had a number of enquiries about the impact my resolution has on the town council.….
My opinion on a town council taking sanctions against a member where there has either not been a code of conduct allegation or where one has been determined, remains. A town council can only take sanctions against a member where the principal authority [i.e. the local authority] has recommended them following a breach of the code.…"
Ground 1: ultra vires
"It would make a nonsense of that scheme if the parish council were able to take its own decision without having any of those arrangements in place. The whole point of the scheme is to remove decision-making powers and duties from very small authorities which do not have the resources to manage them effectively and who may be so small that any real independence is unattainable" .
"Parliament clearly contemplated that a relevant authority may take "action" following a finding of non- compliance with a code, and does not seek to define or limit what action that may be. The abolition of the old regime carries with it, as Hickinbottom J observed, the abolition of the power to disqualify and suspend but otherwise the powers appear to be undefined, at least where the breach does not involve any impropriety in relation to pecuniary interests".
i) Parliament regarded the role of the independent person as a matter of "real importance" and an "important safeguard". If qualifying allegations could be dealt with otherwise than under "arrangements" put in place under s.28(6), it would as the judge noted at  "frustrate that important safeguard".
ii) The present case is a fortiori Taylor: that showed that in a town council case, the town council does not have power to go behind decisions of the principal authority (whether as to breach or to action consequent on breach). Here the Council has frustrated the safeguard of the independent person not merely by departing from decisions of its principal authority, but by dealing with the allegation through a wholly different procedure than that provided for by the arrangements.
iii) The case also sheds light specifically on the question of the position in relation to parish councils (as town councils technically are). The judge noted the requirements in the Act that the arrangements for dealing with qualifying allegations against parish council members be those of the principal authority. That, it is said, indicates that qualifying allegations should not themselves be dealt with by parish councils who, as Edis J explained, "do not have the resources to manage them effectively and who may be so small that any real independence is unattainable" (). It follows that Parliament has thus prescribed not merely part of how allegations must be dealt with, but also by whom. For the Council here to have dealt with the allegation otherwise than under the LA's arrangements has frustrated that aspect also.
"once an authority determines upon a formal inquiry into an allegation of breach of a code then it must, prima facie, utilise its formal arrangements. But there is no prohibition on pre-formal inquiries and investigations. Such pre-formal inquiries may be necessary to see whether a complaint brought to its attention is frivolous or vexatious or whether even if it has substance it should be dealt with by some other procedure or avenue such as civil proceedings in a court or a complaint to the police." 
"Allegations against members can be investigated formally or informally. If the Council finds a breach by a member then it can impose no sanction open to it under its arrangements unless it then invokes the formal arrangements (as per section 28(4)). Only then does it become empowered to take "action" and impose any form of sanction. For the reasons I have given above I consider that this interpretation accords with the intent of Parliament. It ensures however that no sanction can be imposed upon a member without the formal arrangements having been invoked."
i) Paragraph 138, 140 and 141 where Green J set out the submission of the Claimant that the regime set out in the 2011 Act was comprehensive and exclusive by virtue of section 28(4) and the contrary submission advanced by reference to section 1 and section 28(11) , ultimately preferring the latter analysis in the passage I have quoted above at  of the judgment and the later passage where he says:
"In my view, a Council is entitled to investigate in order to find out whether a prima facie case exists and in order for them to receive advice as to the appropriate next steps. Were the distinction between pre-formal and formal inquiries not to exist it would mean that every allegation, however trivial or absurd, could only be investigated through a formal process even if that were wholly disproportionate and represented an unnecessary squandering of the Council's scarce resources or would involve the addressee of a complaint in an unnecessary expenditure of time, money and effort."
ii) The six points at paragraph 142 which, in his view, supported his conclusion. The Council submits that the thrust of the points in question was that section 28(4) "is concerned with what happens after there is a 'failure to comply' with a Council's code" and with how that failure is dealt with; or in other words with "the effects of prior findings of breach".
"[Counsel for the claimant] recognises, as he must, that if a local government officer complains to his senior officer about the way in which he has been treated by a councillor the complaint has to be investigated. Ordinary principles of good management so require, and such an investigation is plainly a function which a local authority is entitled to carry out pursuant to its statutory powers as set out in the 1972 Act. In reality it makes sense for the investigating officer to report to a committee, such as the Standards Committee which can then consider what action to take. So far as the councillor is concerned, the Committee's powers are restricted, but they are not non-existent. In extreme cases it can report matters to the police or to the auditors. In less extreme cases it may recommend to the Council removal of a councillor from a committee, or simply state its findings and perhaps offer advice. On the other side of the equation, the committee can dismiss the complaint or, for example, suggest changes to working practices to prevent such problems arising in the future."
"[Counsel for the Claimant] asserts that the activity of the Committee was not linked to any particular function or functions of the Council. I disagree. As [Counsel for the Council] correctly submitted, the activity of the Committee was in my judgment linked to, that is to say it was calculated to facilitate and was conductive 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."
"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".
"…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."
i) to bar councillors from particular meetings;
ii) to bar councillors from access to particular papers;
iii) to bar councillors from particular premises;
iv) to restrict their contacts with named staff;
v) to suspend or remove councillors from particular committees;
vi) to suspend or remove councillors entirely from council meetings and council business.
"…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, … 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…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".
i) It was concerned only with the position under the different legislation prevailing at the time. It was not concerned with the issue arising in the present case, namely the effect of the standards provisions in the 2011 Act;
ii) It strongly indicates that, even putting the 2011 Act to one side, an authority's power to take action against a councillor beyond "naming and shaming" is significantly limited.
iii) It indicates that prohibitions 5.2.1 and 5.2.2 (the ban on serving on any committee, sub-committee, panel or working group) as well as 5.2.3 (ban on representing the Council on any outside body) and 5.2.4 (ban on direct communication with office staff) were, on any view, ultra vires.
i) S. 27(3) makes clear that a parish council's systems are to be the same as those of a superior authority, effectively by the process of adoption of those systems. There is no "two-track" system for smaller authorities;
ii) S. 28(6) makes the provision of two sets of arrangements mandatory: arrangements as to investigations of Code of Conduct breaches and arrangements as to making decisions on allegations which have been made;
iii) Under s. 28(7) the latter but not the former must include "at least" one independent person whose role is to provide views (which must be taken into account) to the authority before they take any decision on an allegation;
iv) The authority may also consult that independent person generally in relation to an allegation (but has no obligation to do so);
v) Section 28(4) is susceptible of being read as a broad obligation to refer all allegations under the code of conduct process. However in my view, in the context of the reference to "dealt with" in the first part and the wording of the second part of the section, it is best seen as directed to established breaches and remedies. It imports that a council may not deal with an established breach (eg. as to conflicts of interest) simply by striking down the decision affected by it;
vi) Section 28(11) makes clear that some action may be taken in relation to established breaches;
vii) The same section also indicates that action may be taken in respect of a finding where the investigation was made under different arrangements to those contemplated by sub-section (6) ie under some arrangements which are not the formal investigation process which a council has to have in place.
"The LA 2011 was intended to strengthen the regime and incorporate expressly the "Nolan principles" on standards in public life. The parliamentary purpose behind the change was twofold. First, to move from a centralised regulatory system to a decentralised system based on "localism". Second, to move away from a system which could amount to a vehicle for vexatious and politically motivated complaints which deterred freedom of speech and which could be used to silence or discourage members from whistle-blowing."
Ground 2: substantive unlawfulness
"depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine:
(i) whether its objective is sufficiently important to justify the limitation of a fundamental right;
(ii) whether it is rationally connected to the objective;
(iii) whether a less intrusive measure could have been used; and
(iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community."
i) The Council has not clearly identified to the Court the conduct which it found proven and which it says justifies the action.
ii) Insofar as the action was based on conduct said to have occurred between May 2016 and May 2017, this was set out to Cllr Harvey for the first time in Cllr Fieldhouse's evidence to the Court and is disputed by Cllr Harvey.
iii) Even if the Council could in principle justify action taken on the basis of conduct which is either unidentified or has not been proven through a fair process, it would have to demonstrate that the action was "rationally connected to the objective", that "a less intrusive measure could[not] have been used" and that it struck a "fair balance". This it is said it has not come close to doing, particularly in the light of the decision of the Monitoring Officer in her letter of 9 May 2017 (following a Code of Conduct compliant investigation), that there was "no basis to support a finding that" Cllr Harvey had breached the Code as alleged in the Complaint.
iv) Cllr Harvey also notes in terms of this last element of the test that the only persons who had raised a formal complaint about Cllr Harvey's conduct had been the Clerk and Deputy Clerk in December 2015 (although neither of them had raised any formal complaint after May 2016). Yet the Council's actions restrict Cllr Harvey in ways which go clearly beyond what would be necessary to achieve the protection of those two persons. In particular she points to the restriction from sitting on any committee and from representing the Council on any outside body and the ban from communicating with any office staff.
"But the views of the local authority are bound to carry less weight where the local authority has made no attempt to address [the] question. Had the .. Council expressly set itself the task of balancing the rights of individuals ... against the interests of the wider community, a court would find it hard to upset the balance which the local authority had struck. But where there is no indication that this has been done, the court has no alternative but to strike the balance for itself, ..."
"... civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism. Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions.
What is more, civil servants must enjoy public confidence in conditions free of undue perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive verbal attacks when on duty. In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant's remarks were not uttered in such a context."
The Council then directs my attention to the decision in Heesom where Hickinbottom J, having considered the Article 10 jurisprudence, remarked at :
"(1) Civil servants are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation (see Mamère at ), it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration. "
Ground 3: procedural unfairness
i) There was no investigation prior to the Standing Committee meeting on 8 May 2017 (or, apparently, at any time) as to whether the alleged conduct actually occurred and, if so, was justified. In essence, it was never investigated. The Council's actions were a long way from the process of investigation, officer report, and considered deliberation which occurred in Lashley.
ii) The alleged conduct was not identified to Cllr Harvey in advance of the Standing Committee meeting on 8 May 2017 other than by the provision of the complaints in the context of the 2016 Decision She was not even provided with the most basic information; never mind a report or other analysis. In particular, she was not told of the content of the "staff interviews" or about any updated complaints.
iii) The content of the "staff interviews" which supplemented the complaint were not even revealed to the Standing Committee itself. On this the evidence is that the Mayor and Cllr Baker told the Standing Committee that "[they] considered that there had been little or no improvement in Cllr Harvey's behaviour".
iv) the process before the Standing Committee did not allow Cllr Harvey any effective opportunity to respond to it in that the only opportunity for Cllr Harvey to address the Standing Committee at all was in its "public participation" session which took place prior to the private discussion of her case at which any of the allegations against her might have been identified and discussed. Furthermore, the private session meant that she could not hear (literally) the case against her, never mind respond to it.
v) the alleged conduct on the basis of which the Standing Committee made its recommendation was not identified to Cllr Harvey between the Standing Committee meeting and the meeting of full Council on 11 May 2017.
vi) the alleged conduct on the basis of which the Standing Committee made its recommendation was not even identified to full Council.
vii) against the above background, Cllr Harvey had in the circumstances no effective opportunity to defend herself at full Council.
i) As regards the complaint as to absence of investigation the Defendant says that the 2017 decision was a review of the protective measures imposed by way of the May 2016 decision and did not address any new or fresh grievances. In any case, the conduct in question, forming the subject-matter of the original grievances, was well-documented in the attachments to the Clerk's letter in which her grievance was spelt out. There was, therefore, no room for doubt as to whether or not the conduct in question had occurred.
ii) As regards absence of notice of the basis of the May review: the Council submits that it is not realistic to say that Cllr Harvey had insufficient understanding of the nature of the grievances made. Further, it says, she was well-placed herself to know whether she was continuing to indulge in such behaviour after those measures had been put in place.
iii) As regards the staff interviews and generally: the Council says that it should be borne in mind that the grievance procedure deployed by it was not akin to a civil or criminal trial. The Mayor confirmed that there had been little or no improvement in the Claimant's behaviour and this was, as might be expected in regard to a small entity in a small town, a matter of "common knowledge", including on the part of the Standing Committee.
iv) As regards absence of notification and opportunity to respond, the Council says that Cllr Harvey had speaking rights as a sitting Member at the various meetings to which she refers, and she could have submitted a written statement to the meetings in advance of them. Further, the Claimant has not indicated what she would have said which could have led the Council to decide the lift the protective measures and relies on the fact that Cllr Harvey continues to attempt to justify her conduct and refuses to engage with the Council's concerns.
Discussion – Grounds 2 and 3
"(2) Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which civil servants do not. ....
(3) Where critical comment is made of a civil servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that civil servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression: see also Mamère's case, para 27."
"I cannot accept this complaint .... 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"."
i) She should not serve/substitute on any of the Parish Council's committees, sub-committees, panels or working / steering groups: The necessary connection here may exist, but there must be doubts over whether a less intrusive measure could have been used (eg. substitute clerks) and whether the balance was fair
ii) She should not represent the Parish Council on any outside body: Here all three issues seem open to question.
iii) The ban on communicating with any office staff: on the evidence this aspect of the sanctions was plainly not rationally connected with the objective or compliant with minimum intrusion or fair balance indicators in that the complaints derived from two people only, one of whom had now left;
iv) The LA and all bodies affiliated to the Council be informed of the actions taken by the Council: again all three issues seem open to question.