A Birmingham city councillor was found by the Administrative Court to have breached the council’s Code of Conduct after he had trespassed on to private property, filmed what he saw, and subsequently placed the video material on to the internet (R (Mullaney) v The Adjudication Panel for England [2009] EWHC 72 (Admin)).

The councillor argued that he had acted in the public interest and that he had a defence of necessity to the trespass since he had been trying unsuccessfully for two years to get the council’s planning department to act. This was given the councillor’s view that the building was unsafe, that criminal offences based on breaches of planning and health and safety laws had been committed, and that the proprietor had acted in a high-handed manner in ignoring such laws and the interests of his neighbours and the community.

The court was not persuaded, and noted that to avoid anarchy the law regards self-help remedies with the deepest suspicion and admits them only in special circumstances. There were different aspects to the concept of the public interest – and the councillor had failed to give any weight to other relevant aspects and to strike a proper and relevant balance.

The court cited the ‘. . . high-handed and one-sided approach and conduct’ of the councillor concerning each of the four relevant aspects of conduct. These were: the trespass on to the ­proprietor’s land; the tenor and content of the video; failure to edit or qualify the content of the video once additional information came to light; and failure to agree not to publish or destroy the video. No matter how sincerely the views were held, it could not be said that a reasonable person could sensibly have concluded that there was no alternative to the act of trespass, either to bring the matters complained of to the attention of the relevant authorities or to avert a danger.

In the circumstances, the court upheld the finding by the Adjudication Panel Appeals Tribunal of breach of the code. Nevertheless, Mr Justice Charles found procedural unfairness in the ­tribunal’s approach to sanction.

The Standards Committee had ordered that the councillor be suspended for one month unless he give a written apology to the proprietor in an agreed form. The tribunal had gone on to remove the opportunity of avoiding the suspension but without alerting the councillor to the fact that it was contemplating this and giving him the opportunity of making representations before determination of the sanction. For it is fundamental to procedural fairness that the parties have a proper and fair opportunity to deal with the material issues and therefore the case against them.

Although no part of the judgment of Charles J, the decision might also be seen in terms of the need to use public power properly and proportionately and therefore to avoid abuse of power. For, as Lord Bridge has pointed out: ‘Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely. . . [and] . . . it can validly be used only in the right and proper way which parliament when conferring it is presumed to have intended.’ (see R v Tower Hamlets London Borough Council ex parte Chetnik Developments Ltd [1988] AC 858). It is unlikely that parliament has had trespass in mind at any stage when framing councillor functions.

Homelessness v child careThe House of Lords recently had to address a potential clash between local authority homelessness and child care functions. On 4 February 2009 in Holmes-Moorhouse v Richmond-upon-Thames London Borough Council [2009] UKHL 7, the Lords found that only in exceptional circumstances will it be reasonable to expect a child who has a home with one parent to be provided with another under the homelessness provisions of the Housing Act 1996, so that the child can reside with the other parent also.

Following a shared residence order made by the family court, whereby the children should spend alternate weeks and half of their school holidays with each parent, the claimant applied to the council for assistance as a homeless person under part VII of the Housing Act 1996. The council’s housing reviewing officer, in affirming a decision that the claimant had no priority need for housing, indicated that the children could not reasonably be expected to live with the claimant. When the Court of Appeal quashed the decision of the reviewing officer, the matter came before the Lords who were able to administer a little realpolitik.

Lord Hoffman could see ‘no reason in logic why the fact that parliament has made the question of priority need turn upon whether a dependent child might reasonably be expected to reside with the applicant should require that question to be answered without regard to the purpose for which it is being asked, namely, to determine priority in the allocation of a scarce resource’. In his view, to ignore that purpose ‘would not be a rational social policy’. As for the different issues of child residence and homelessness, he took the view that those are ‘two procedures for deciding different questions’ and ‘must not be allowed to become entangled with each other’. And it will be only in exceptional circumstances that it would be reasonable to expect a child who has a home with one parent to be provided with another under the homelessness regime, so that the child can reside with the other parent as well.

Baroness Hale took a similar view, indicating that family court orders are ‘. . . meant to provide practical solutions to the practical problems faced by separating families’ and are not meant to be ‘. . . aspirational statements of what would be for the best in some ideal world which has little prospect of realisation’.

Lord Neuberger had some words of comfort for housing officers who conduct statutory reviews of homelessness decisions, noting that they were not lawyers and that their decisions should not be subject to the same rigorous analysis as a legal contract, court judgment or act of parliament. He warned courts about taking too technical a view of the language or adopting a nit-picking approach.

The case provides another instance of the need to construe statutory provisions in line with their proper purpose. And, while this can be difficult where local authorities have a multiplicity of sometimes countervailing functions, it is necessary to approach these with appropriate analytical rigour so that the authority in each case is properly discharging its relevant statutory responsibilities. Lord Hoffman’s comment about avoiding functional entanglement may well be helpful in such cases.

Publicity powersFrom the producers who brought you the smash hit of summer 2008 – Communities in Control: real people, real power and the box office breaking follow-up: Local Democracy, Economic Development and Construction Bill, a new and exciting motion picture was released in December 2008. Well, all right, not so much a movie as a consultation paper on local authority publicity. While the consultation closed on 12 March 2009, the flow of government thinking in this area does need to be on the radar of all lawyers who have involvement with local authorities.

Local authority publicity powers include section 142 of the Local Government Act 1972, which enables publication of information relating to their functions. However, the Local Government Act 1986 prevents publication of any material which appears to be designed to affect public support for a political party. That act also enables the secretary of state to issue codes of recommended practice on local authority publicity, including its content, style, distribution and cost. The present code was introduced in 1988 (with amendments in 2001 affecting principal authorities). Its essential purpose was to ensure proper use of public funds for publicity.

The 2008 white paper had complained that there was ‘still too much confusion and reluctance within local government about how far councils should promote and support councillors’ activities’. It indicated a desire ‘to clarify this and ensure that any guidance makes clear the legitimate support which should be given to councillors’. So the consultation says it recognises that ‘there may be an argument that a publicity code is not required’ at least in its present form. It also refers to the need to acknowledge the political nature of local government as part of reinvigorating and rehabilitating politics at the local level. However, this is difficult territory and, while local democracy certainly needs a shot in the arm, considerable care needs to be taken to make sure that public funds are not used for political spin. For there can be a fine line between information and propaganda.

Therefore, many will think that despite ‘a move away from central government prescription to local government’, a prudently updated code is definitely needed to put some practical flesh on the legislative bones in the current context.

Nicholas Dobson, Pinsent Masons, Leeds