Ben Locker & DaphneI recently had the pleasure of acting for Councillor Ben Locker in his defence of an allegation that he had failed to comply with Colchester Borough Council’s Code of Conduct.

I am delighted that the CBC Governance Committee agreed with my submissions that there could be no breach of the Code as Ben had not been acting in an official capacity when the complained of conduct took place.

And what was the complained of conduct?

Ben Locker found a parking ticket on his beloved and broken down motor, “Daphne”. In response, Ben took a photograph of the ticket – which appeared to be next to a note Ben had placed on top of his dashboard which read, “Flat battery, will move this afternoon, Ben Locker”.

Ben then tweeted the photograph with the caption, “Thank you North East Parking Partnership, you heartless, target-driven bastards”.

The primary test in law for a potential breach of the Code is, and always has been, whether the Councillor was acting in an official capacity during the complained of conduct.

Ben has helpfully created an archive of the documents in this case which includes everything from Councillor Dominic Graham’s original complaint to Monitoring Officer Andrew Weavers’ approach to the matter through to my written submissions.  A recording of the Governance Committee hearing of the matter can also be downloaded.

On reading and listening, some may draw the conclusion that while the Council’s approach to the complaint was a bit muddled – as the Committee unanimously found that Ben did not breach the Code – all’s well that ends well.

But is it?

13 October 2015 Governance Committee Hearing – Whose action is this anyway?

In a somewhat unusual move – and instead of the Monitoring Officer opening the Council’s case against Ben by outlining the facts and the alleged breaches of the Code – the hearing commenced with Councillor Graham reading out his complaint together with all the reasons why, in his view, Ben should be in trouble for not apologising to him, “adequately“.

After Councillor Graham finished reading his complaint and his submissions, Monitoring Officer Andrew Weavers then explained that the matter had been referred to the Governance Committee for two reasons:

  1. “That the apology offered by Cllr Locker was not satisfactory to Cllr Graham; and

  2. that following consultation with the council’s independent persons, it was felt that as Cllr Locker is a member of this committee, that it should determine the matter”.

In my respectful opinion, the test the Monitoring Officer should have applied according to the CBC’s Complaints Procedure Flowchart is whether the Member was acting in an official capacity – not whether Councillor Graham was dissatisfied with Ben’s apology.

Further, as there is no super-Code for Members of the Governance Committee which is above and beyond the Code of Conduct applicable to all Members- one has to wonder if Councillor Graham’s complaint was referred because “it was felt” Ben should have to answer to even higher, yet unwritten, standard of conduct which lies outside the Code.

The Good News and the Bad News

Nevertheless, all seemed to get back on track when the Monitoring Officer subsequently explained to the Committee that the issue was whether Ben was acting in an official capacity when he published his tweet.

However, it an unexpected turn, the Monitoring Officer advised,

“If, in the alternative, you decide that Cllr Locker was not acting in his official capacity, when the tweet was made, whether you consider that since he is a member of this committee, whether any further action should be taken”.

Again with the higher Governance Committee Member Code?

Monitoring officer Weavers then raised s111 of the Local Government Act, 1972 and the case of R v Broadland District Council, ex parte Lashley as Authority for his assertion that it was open to the Committee, even on a finding of no breach of the Code, to “take further action” against Ben.

Pause a moment and read what s111 says:

111  Subsidiary powers of local authorities
(1)     Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.

 

If there’s no breach, then on what basis are the Committee imposing a sanction? Or, to put it another way, was the Governance Committee discharging a statutory function when the Monitoring Officer invited it to consider a “range of sanctions”?

The answer to that must be no – as the Governance Committee’s function re a possible sanction ceased the moment they voted that Ben had not breached the Code.

Turning to Councillor Lashley’s case, you can easily see how it can be distinguished from Ben’s:

  1. Prior to the Royal Assent of the Local Government Act 2000, Broadland District Council set up a Standards Committee.
  2. Councillor Lashley was alleged to have indulged in behaviour bordering on harassment toward a Council officer – and a decision was made by the Chief Executive for the complaint to be heard by the Standards Committee.
  3. Prior to the Standards Committee Hearing, the Chief Executive of the Council barred Councillor Lashley from the Council building other than to attend Council meetings.
  4. The partial barring had been lifted prior to the Standards Committee meeting.
  5. The Standards Committee found that Councillor Lashley had breached the Code and censured her – and decided that no further action would be taken.
  6. The Standards Committee decision was Judicially Reviewed on the basis that the Committee was not lawfully constituted and that the decision was, in any event, tainted by procedural impropriety.
  7. The Court held that the activity of the Committee was lawful as having a Standards Committee was in discharge of a Council function.

It bears repeating: Councillor Lashley breached the Code.

Ben Locker did not. The Governance Committee said so on 13 October 2015.

It is therefore difficult to see how Lashley stands as Authority for the Monitoring Officer’s proposition that s111, LGA 1972 gave the Governance Committee any power to sanction Ben when they had just found he hadn’t breached the Code.

Support for this analysis is found in Cornerstone on Councillor Conduct at 2.54 which states, in regard to Lashley:

“Question: What sanctions can a local authority apply to a member who has breached the Code?

Unfortunately, in lieu of any specific statutory basis, for the imposing of sanctions for breaches of local codes, the answer is not clear …”

In my respectful submission, as the Committee in Ben’s case found no breach, there is no basis in law for the Committee to be directed to the possibility of taking “further action” against Ben.

That the Committee has, in my view is beyond the scope of their powers and ultra vires.

What’s so important about the Rule of Law anyway?

Why does this matter when all they told Ben was he can’t sit on the Committee until he undertakes training on the Code?

Because rules matter – and the Committee doesn’t have the power to tell a Party who they can have sit on it.

Procedures and law need to be followed, even if one thinks another outcome is more desirable. It’s a constitutional principle which underpins our Government.

A final point about Lashley is that she had the ability to check the exercise of Government power by way of Judicial Review.

Now that access to Judicial Review has been severely curtailed, local government now, more than ever, must get it right the first time – otherwise, and in the absence of a centrally run Standards Board, there is real risk of well-intentioned injustice leading to the erosion of public confidence.