The regime for monitoring the conduct of local authority members can be controversial and sensitive and can require local authorities to consider a range of legal issues. R (on the application of Hussain) v Sandwell Metropolitan Borough Council  EWHC 1641 established important principles as to which complaints over member conduct can be investigated, as well as considering some important points relating to bias and political motivation.
In England, the conduct of local authority members is monitored under arrangements made in accordance with the Localism Act 2011. This moved away from the previous regime under the Local Government Act 2000 and associated regulations, which imposed prescriptive requirements as to monitoring conduct and taking action over complaints, to a position where local authorities have discretion over dealing with member conduct.
In Sandwell, a member of the local authority made an application for judicial review over investigations into allegations about his conduct, some of which related to alleged conduct predating the Localism Act. Section 28 of the Act requires local authorities in England to have arrangements under which allegations can be investigated and decisions about those allegations can be made.
“Allegation” is defined as “a written allegation… that a member or co-opted member of the authority has failed to comply with the authority’s code of conduct, or… 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”.
It was argued on behalf of the member that this only allowed investigation of alleged breaches of a code adopted under the Localism Act and that the authority had no power to investigate conduct alleged to have occurred before that. The court rejected that, commenting that this would have the effect of creating an amnesty for all sorts of serious misconduct, including covert and fraudulent practices. It found that the trigger for the investigation should be the allegation, not the date of the act or omission complained of, or of the code in place at the time of the allegation.
The court also rejected a suggestion that the local authority had acted outside its powers in commissioning a pre-formal investigation to establish if there was any substance in the allegations. The court found that a formal investigation of an alleged breach of the code must be conducted under the arrangements adopted by the authority under the Localism Act but there was no prohibition on pre-formal inquiries. The power in section 151 of the Local Government Act 1972 or alternatively the general power of competence in section 1 of the 2011 Act were available to the local authority.
As section 28 of the 2011 Act has been in force since 2012, it is unlikely that many local authorities will need to consider investigating allegations relating to conduct prior to that. Nevertheless, it is helpful to have clarification of the scope investigations can have.
Tainted by bias?
The question of bias was raised as a ground of challenge in Sandwell because a solicitor who produced a report as part of the pre-formal investigation process made inappropriate remarks. While it was accepted by all parties that the remarks were objectionable and unacceptable, the court needed to consider whether the report was tainted by actual or apparent bias, which could affect the validity of decisions of the local authority’s standards committee about the member’s conduct.
Having considered the report and the interviews conducted by the solicitor, the court found no evidence of actual bias. On the question of apparent bias, the court found that the comments could be viewed by a third party as reflecting a degree of personal hostility towards the member which could lead that third party to conclude that there was a real possibility that the report could be affected by bias.
However, the local authority had asked leading counsel to review the solicitor’s report and the court considered that this substantially reduced the risk of transference of bias. Furthermore, the allegations had been subject to further investigation and had been referred to the local authority’s standards committee for a decision. It was therefore concluded that any taint of bias affecting the solicitor’s report was so remote from any future decision of the standards committee that there was no identifiable risk that the decision could be affected.
A further ground of challenge in Sandwell was that the decision to proceed with a formal investigation after receipt of the solicitor’s report and the review by leading counsel was politically motivated. It was suggested that the decision of the local authority’s chief executive had been affected by pressure imposed by members of the local authority with a political agenda to pursue. However, the court found that the decision to proceed with the investigation was justified by proper reasons and not affected in any material way by improper political considerations.
The member’s challenge to the actions of his local authority in proceeding with investigation into his conduct therefore failed on all grounds. In the context of considering the conduct of individuals and the political environment in which local authorities operate, it is not surprising that allegations of bias and political motivation may arise. Sandwell has shown that a local authority should be able to resist these if it can show that its decision making has followed an appropriate process and has been motivated by proper reasons.
In England, the core requirements under the Localism Act relating to member conduct include that local authorities must have codes of conduct for members. These must be consistent with the seven principles of public life established by the Nolan Committee and must include provisions requiring registration and disclosure of members’ interests.
Members commit criminal offences by participating in local authority business in which they have interests and by failing to register and disclose interests. Authorities must have arrangements for dealing with allegations of breach of the code of conduct, which must include the involvement of an independent person, whose views must be taken into account. Other than that, authorities have discretion about the particular arrangements they make.
The Localism Act allows a local authority to decide what action to take if a member is found to have breached its code of conduct but the Act does not contain the detailed and, in some cases, severe sanctions which applied under the previous regime. Local authorities may censure the member, remove them from outside appointments, and recommend to the member’s group that they be removed from committees and particular responsibilities. They may instruct the monitoring officer to arrange training for the member, restrict their access to premises and facilities, and publicise the finding against the member.
In the absence of sanctions such as suspension, there is little an authority can do if a member does not co-operate with the action taken. In practice, a finding of breach is likely to have most impact on a member if their political group takes action against them or if they experience adverse publicity.
Sandwell has shown that despite the discretion given to local authorities, and the limited sanctions available to them, conduct investigations can cause sufficient concern as to generate challenges on various grounds. It is therefore essential that English local authorities ensure their arrangements comply with the core requirements of the Localism Act.
In Wales, the conduct of local authority members is still regulated under the Local Government Act 2000 and associated regulations. This means that local authorities are subject to very detailed requirements, similar to those which used to apply in England. They must adopt codes of conduct and these must be based on a national model code.
Provision is made for investigation by the Public Services Ombudsman for Wales into alleged breaches of codes of conduct. The findings of such investigations are referred to monitoring officers to arrange for decisions from their standards committees. If a member is found to have breached a code of conduct, the local authority can censure the member but also have the more meaningful sanction of suspending the member for up to six months. The potential exposure to such sanctions makes the prospect of being the subject of allegations of breach of a code of conduct a significant concern for local authority members in Wales. This is an example of the way in which the laws of England and Wales are showing increasing divergence and consequently local authorities are operating in different ways in the two countries.
Tiffany Cloynes is a partner and head of Geldards’ regeneration and public services team in England...