Trouble with councillors

Ever since Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504 (Admin) and its clear demonstration of the application of article 10 to the local political sphere, it has been evident that councils need to exercise the greatest care when dealing with truculent councillors. But how to proceed in practice? That was the issue which came before Mr Justice Edis in the case of Taylor v Honiton Town Council [2016] EWHC 3307 (Admin) towards the end of last year.

The basic facts were as follows. On 28 January 2015, East Devon District Council (EDDC), as the ‘principal authority’, received a complaint from the clerk to Honiton Town Council (HTC) that Councillor John Taylor had breached HTC’s code of conduct when publishing a statement about her. The statement made serious allegations concerning a significant HTC building project to which he vigorously objected.

The interim monitoring officer at EDDC assessed the allegation and considered that a breach of the code had occurred. Councillor Taylor did not accept those findings. The matter was referred for investigation and then to a hearing of the EDDC standards committee. The latter concluded that the councillor had indeed breached the code of conduct. It reported its findings to HTC and made ‘recommendations’ regarding possible sanctions.

HTC accepted the decision of the EDDC standards committee and imposed the recommended sanctions, together with additional measures of its own devising. Councillor Taylor challenged the decision of HTC (but not that of EDDC) by way of judicial review.

Upon the application for judicial review, the court was invited to decide whether HTC was bound by the findings of EDDC as to the facts, or should have made its own decision; and whether EDDC’s recommendation that the councillor be invited for re-training on the code was lawful. EDDC, which had been joined as an interested party, pointed out that it was not the subject of any challenge, but accepted that rulings on these two questions might be helpful to it and other local authorities. Specifically:

• What was the status of a decision of an authority exercising its function as principal authority under section 28 of the Localism Act 2011? Was a parish council bound to accept (as both HTC and EDDC contended) its findings of fact on the breach of the code?

• Was it a lawful sanction (as EDDC contended) to require a councillor to undergo retraining on standards of conduct? On this issue East Devon and Honiton took different positions, with HTC accepting the councillor’s contention that such a requirement had been ultra vires.

As regards the first question, the court decided that the duty of investigation and the makings of decisions on allegations against members of HTC and subsequent complaints as to conduct did lie with EDDC as principal authority (sections 28(6)(b) and (9)(b) of the 2011 Act). The rationale was that the scheme envisaged the involvement of independent persons. To hold that a parish council had a duty to reconsider the principal authority’s decision and substitute its own would frustrate that important safeguard.

As regards the ‘training requirement’, the court also agreed with EDDC’s contention that neither the 2011 Act nor the decision in Heesom prevented a requirement of training, provided that such would be proportionate to the circumstances of the individual case (applying the test of proportionality in Bank Mellat v HM Treasury (No 2) [2014] AC 700) as it was here.

For the future, councils may take the view (as EDDC did) that where there is a substantial and complex dispute concerning the legality of commercial contracts entered into by a town or parish council, the principal authority is likely to be extremely reluctant to adjudicate upon such a dispute.

Where there is a finding of breach of any code, any sanctions imposed must not exceed those which would be lawful under the Localism Act. Generally these will be a finding of a breach, censure, and publicity of that decision, although in Taylor the court agreed that the sanctions described in Heesom were merely examples and not an exhaustive list. It is, therefore, lawful to require a councillor found to be in breach of a code to undertake retraining as regards the duties of councillors and any code of conduct in force.

As to costs, the judge suggested that ‘generally, the kind of conduct most relevant to costs is the conduct of the parties in dealing with the dispute once it has arisen rather than conduct which caused it in the first place... [T]he general rule is that the unsuccessful party pays the successful party’s costs and this follows the resolution of the issues giving rise to the dispute. Conduct only becomes relevant where the court is invited to depart from that general rule.’

In the event the judge held that Councillor Taylor should pay all costs incurred by Honiton (on a standard basis) after the date of the latter’s initial offer to settle.

Jeremy Phillips is a barrister at Francis Taylor Building and represented EDDC in Taylor

@FTB_law www.ftbchambers.co.uk