Parliamentary imperfections afflict all those bound by them, unfortunately. This became clear when the local government standards regime in chapter 7 of part 1 of the Localism Act 2011 found itself on the judicial operating table. On 21 December in Taylor v Honiton Town Council and another [2016] EWHC 3307 (Admin), Edis J referred to section 28(11) of the act as ‘a rather puzzling provision’ and noted that determining the decision status of the principal local authority (East Devon District Council) involved ‘statutory interpretation of the somewhat difficult provisions of ss.27 and 28 of the 2011 act’ which was ‘a question which could easily have been answered by simple and clear words in the act but was not’.
In addition the judgment gave some clarification of the different roles of parish/town councils and principal authorities in operating the local government standards regime. It also clarified the nature and extent of sanctioning powers.
Background
The case concerned sanctions imposed on John Taylor, a Honiton Town Council (Honiton) councillor, under the standards regime. They followed comments he had published about Honiton’s town clerk concerning a loan extension from the Public Loan Works Board recommended by Honiton’s auditor to fund a shortfall in a large building project.
Taylor had (among other things) accused the town clerk of illegality in connection with the loan and involvement in ‘a conspiracy to use money from the Public Works Loan Board… for an improper purpose’. The town clerk complained to East Devon District Council (East Devon) as the principal authority responsible for operating the standards regime, alleging she had been slandered and that her professional reputation was affected. She said she had acted only on the instructions of the town council following advice from the internal auditor and the Audit Commission and that she had ‘always ensured that work has been carried out in a professional and legal manner [and] to say this is not the case is not acceptable’.
After attempting unsuccessfully to resolve the matter informally, East Devon’s monitoring officer appointed external investigator Tim Darsley to investigate the complaint. Darsley decided in particular that the requirement in Honiton’s code to ‘treat others with courtesy and respect’ was engaged. After investigation, and establishing (among other things) that there was ‘no evidence to suggest that the loan application was in any way illegal, and was used for an improper purpose’, Darsley found that Taylor had publicly made claims of illegality and impropriety associated with the town clerk and that, in the absence of any reasonable justification, this constituted a failure to treat her with respect.
On 30 November 2015, East Devon (the principal authority) determined Taylor had failed to treat the town clerk with respect and imposed sanctions, censuring Taylor, publishing its findings and requiring Taylor to undergo training on the code of conduct.
On 14 December 2015 Honiton imposed the sanctions recommended by East Devon. However (and in line with an October 2015 policy) it also applied additional measures until the training requirement had been fulfilled. These purported to prevent Taylor from speaking at any meeting whether as councillor or member of the public and to remove him from the committees and working groups on which he had served.
Taylor, as claimant, challenged Honiton’s decision (essentially) for illegality and procedural unfairness. Edis J said he would determine the following two issues: (i) whether Honiton was bound by the findings of East Devon as to the facts and as to whether there was a breach of the code; and (ii) whether there is a power to impose a training requirement.
The court’s decision
The judge summarised relevant parts of the standards regime including the general authority duty to promote and maintain high standards of member (councillor) conduct, the requirement to adopt a code of conduct (consistent with the seven ‘Nolan’ principles of public life) dealing with the conduct expected of members acting in that capacity, and (in section 28(6) of the 2011 act) requirements on a ‘relevant authority other than a parish council’ to have in place ‘arrangements under which allegations can be investigated and decisions on allegations made’. Relevant authorities include principal authorities such as East Devon as well as parish councils such as Honiton but, as indicated below, it is for the principal authority to investigate and determine any breach of parish council codes of conduct.
Edis J also mentioned the ‘independent person’ provisions, a role which he inferred parliament considered to be ‘of real importance’ and noted the ‘rather puzzling’ section 28(11), where if ‘a relevant authority finds that a member or co-opted member of the authority has failed to comply with its code of conduct… it may have regard to the failure in deciding: (a) whether to take action in relation to the member… and (b) what action to take’. As the judge noted, both Honiton and East Devon are relevant authorities and ‘this creates a difficulty in allocating responsibility for different parts of the process to each of them when subsection(11) appears to contemplate that only one will be involved’.
Although Edis J noted that the challenge was ‘based on the proposition that East Devon’s role was limited to that of investigator and adviser on both questions [that is, failure to comply and any consequence] and contends that Honiton was the ultimate decision-maker on both issues’, he considered this ‘clearly wrong’. He therefore rejected the challenge because ‘a natural reading of the act gives decision-making power to the principal authority and requires it to have arrangements for the exercise of that power’. 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’.
And ‘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.’
Edis J noted the comments of Hickinbottom J in Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 that: ‘there being no common law right for an authority to impose sanctions that interfere with local democracy, on the abolition of these sanctions… a councillor in England can no longer be disqualified or suspended, sanctions being limited to (for example) a formal finding that he has breached the code, formal censure, press or other appropriate publicity, and removal by the authority from executive and committee roles (and then subject to statutory and constitutional requirements)’.
However, Edis J also emphasised that the ‘valuable and penetrating judgment’ of Hickinbottom J ‘should not be regarded as the origin of a definitive list of sanctions available following a finding of breach of a code of conduct’. For in the view of Edis J: ‘Provided that it is lawful, which in this context includes fully respecting the important right to freedom of expression enjoyed by members of local authorities in the interests of effective local democracy, a sanction may be imposed which requires a member of a local authority to do something. It must be proportionate to the breach.’
In the instant case, it ‘was reasonably open to the decision-maker to conclude that this was a serious breach of the code’. While there was ‘no finding as to the claimant’s motives and it may be that he acted in good faith, believing that his statement about the town clerk was justified’, it was in fact not. A training requirement was therefore proportionate.
Edis J found it was ‘open to a relevant authority exercising its power as contemplated by s.28(11) to take action following a failure to comply with a code of conduct to require the member to undertake training’. East Devon’s decision both as to breach and sanction was therefore lawful.
Comment
Local authorities and those advising them will find the High Court’s clarifications on this imperfectly drafted regime helpful – in particular on the lawful and proportionate scope of sanctions for breach of codes of conduct.
1 Reader's comment