“(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”. 12. 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”
“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.” should comport myself in future.”
“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 ongoing bullying, intimidation and harassment of staff …”
“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.” 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 unders.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 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.…”
“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.”
“[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.”
“…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.”
“The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier act that the two cannot stand together?”
"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."
"... whose views are to be sought, ... by the authority before it makes its decision on an allegation that it has decided to investigate"
"If a relevant authority finds that a member .... 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 ...whether to take action"
“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.”
"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."
"(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 [27]), 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. "
"(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”."
“to safeguard staff”