Local Government - March 2009

Member conduct

It is uncommon for member conduct cases to reach the courts, and when they do they usually cause problems.  Happily Mullaney v Adjudication Panel For England & (1) Ethical Standards Officer (2) BCC Standards Committee (3) Safdar Zaman [2009] EWHC 72 (Admin) is an exception to both these principles.

The facts
Councillor Mullaney of Birmingham City Council was contacted by a constituent who needed funding for a skateboard park in a historic building, and who was concerned about the redevelopment and condition of an adjacent site.  He raised a number of “Councillor Enquiries” about the site.  As a member of the City Council’s planning committee, he took a special interest in what he saw as unauthorised development, and at one stage suggested that a stop notice should be served.  In pursuit of these issues, he trespassed on the land, with a fellow Councillor, and shot a “naming and shaming” video, despite protestations from the owner of the land, Mr Zaman.  He posted the video on YouTube, with an accompanying blog, and sent a copy to The Stirrer, a local news website.  Mr Zaman complained about both Councillors, and the ESO conducted an investigation.

The Standards Committee decision
The City Council’s Standards Committee decided that Councillor Mullaney was in breach of the City Council’s Code of Conduct because he had failed to treat Mr Zaman with respect, by the act of trespass, the biased content of the video, his failure to edit the video in the light of new information showing that some of the content was incorrect, and his failure to withdraw it when requested by Mr Zaman’s solicitors.   It decided, however, that he had not brought his office or the Council into disrepute.

It decided that both Councillors should be censured, and accepted an offer to withdraw the video.  It decided to suspend Councillor Mullaney for one month, unless he gave a written apology in acceptable terms to Mr Zaman within 14 days of the Standards Committee decision, to be published on his website for a month.   It applied a similar sanction to the other Councillor, who did not appeal. 

The Appeals Tribunal
Councillor Mullaney appealed.  The 14 days was suspended pending the appeal. The Tribunal dealt with the appeal by considering written submissions.  It upheld the finding of disrespect, and confirmed the sanction, amended to make the suspension unconditional, so that an apology would not be enough.  It rejected his argument that he was acting as a local campaigner, and therefore outside his official capacity, this being a requirement for a finding of breach of the Code of Conduct for failure to treat others with respect.  It also rejected his argument  that the proceedings were not compliant with Article 6 ECHR (right to a fair hearing) because two of the grounds for the finding were not included in the ESO’s report.

The judicial review
Councillor Mullaney sought judicial review of the Tribunal’s decision.  The case was heard by Charles J on the 22 November 2008.  Mr Mullaney argued (1) that the trespass and video were in the public interest and in exercise of his rights under Art 10 ECHR (freedom of expression) (2) that he had not acted in his official capacity and (3) that the sanction was excessive.

Charles J recognised that these were judicial review proceedings, rather than a statutory appeal.  Therefore the Court should ask itself whether there had been an error of law, or an irrational decision, and should not review the merits of the decision.  In the circumstances, though, he felt it would be helpful to offer an opinion on whether the Tribunal’s decisions were right, as though this had been a statutory appeal.

Official capacity
On “official capacity”, he noted the definition in the Code “… conducts the business of the office to which s/he has been elected or appointed”.  He did not agree that it only covered actions that a councillor could not take unless he was a councillor.  Whether or not the member identified himself as a councillor in correspondence, or used Council notepaper, or conversely whether or not correspondence was conducted from a personal email address, or activity was not Council-funded, were all relevant factors, but none was determinative on its own.  More important were the reasons why, and the circumstances in which, the actions were taken.  The Tribunal’s decision was lawful, rational and correct.

Respect
On “respect”, there was no overriding public interest qualification.  The Committee and the Tribunal should undertake a balancing exercise.

The Tribunal had been correct to apply the test used in another Tribunal Case, Shaddock v Portsmouth City Council:

“Failure to treat others with respect will occur when unfair, unreasonable or demeaning behaviour is directed by one person against another. The circumstances in which the behaviour occurred is relevant in assessing whether the behaviour is disrespectful. The circumstances include the place where the behaviour occurred, who observed the behaviour, the character and relationship of the people involved, and the behaviour of anyone who prompted the alleged act of disrespect.”

Further definition was unnecessary – see the comments of Wilkie J in Neville Buckle Sanders v Steven Kingston [2005] EWHC 1145 (Admin)  “ a failure to treat others "with respect" …That is a concept, particularly where it describes the conduct of an official to others, which is perfectly capable of being applied by a reasonable person considering a course of conduct so as to enable that person to know whether what they are doing, or are about to do, would or would not comply with the code in that way.”  All that was needed was “a fact sensitive application of the descriptive words in the Code”.  The Tribunal’s decision was lawful and correct.  The “magnetic or core factors” were Councillor Mullaney’s “highhanded and one sided approach and conduct”.

In terms of Article 10, the restraints applied by the Code should not extend beyond what is necessary to maintain proper standards in public life, and political expression finds a higher level of protection, but this just went to the task of determining whether or not there had been a breach.

Article 6
Councillor Mullaney maintained that he had been able to advance the defence of “necessity” to any allegations of trespass – a point not previously argued – and should have been able to call evidence to support this. Charles J did not agree that he had an arguable defence.  Councillor Mullaney also argued that the Committee and the Tribunal should have considered other evidence.  This was rejected on the facts. The Tribunal’s reasoning on the complaints about the Committee were upheld.

Sanction
Councillor Mullaney was partially, or at least temporarily, successful.  Charles J took a point that had not been argued to him (Councillor Mullaney appeared in person, assisted by an MP).  As a matter of statute law, the Tribunal had been able to increase the sanction, by removing the apology condition.  However, it had taken the decision following an exchange of written representations in which none of the parties had addressed this point.  This was not Article 6 compliant, and the question of sanction was remitted for reconsideration by a different Tribunal.

Comments
This is all very reassuring.  Charles J explained at length why, following Sanders, there was no need to worry about defining or refining the meaning of “official capacity” or “respect”.  It is enough that we will know it when we see it. 

It is also helpful to see judicial support for reining in the idea of the “community activist”, as a different animal from a Councillor pursuing a ward matter.  In APE0401 Alderman Bartlett, the member in question had appealed against the Standards Committee’s finding of disrespect and disrepute.  He had used his position to gain entry and demand information from staff at a branch of the Open College Network, refused to give his reasons for doing so, become belligerent, demanding and aggressive, and refused to leave until a senior member of staff threatened to call the police.  He had threatened the position of those present, saying “I’m going to close you down, you’re never going to be able to train or teach again” and attempted to fulfil this threat by writing a letter of complaint copied to the relevant Council Director.

The Tribunal sidestepped his grounds of appeal by finding certain core facts to be undisputed, then determining the matter on the basis of those facts.  It decided that the disrespect finding was wrong, because Alderman Bartlett was not acting in an official capacity, but as a community activist.  The company had no special dealings with the Council, and the mere fact that he introduced himself as a Councillor did not mean he was acting in an official capacity.  Secondly, however, the disrepute finding was upheld.  This requirement applies outside official capacity, provided the Livingstone v APE  [2006] EWHC 2533 test is met.  In this case it was, because he was holding himself out as a councillor and a person of influence.

As is clear from Mullaney and Livingstone, disrespect is not always disreputable.  It may make you think less of the individual, but not of his or her office or authority.  Had there not been a disrepute finding in Bartlett, he would have escaped sanction even though he introduced himself as a Councillor and both threatened and attempted to use his influence as a Councillor.  This could lead to “belt and braces” disrepute findings in marginal official capacity cases, where the subject member claims to have been acting as a “community activist”, even though the facts do not justify them.  Mullaney is now clear authority for the proposition that you can, at the same time, be both a community activist and a councillor acting in an official capacity, and a potential loophole has become much narrower.

Graeme Creer
Partner
Weightmans LLP