Bias and Standards: Case-Law Developments

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1 Bias and Standards: Case-Law Developments Supporting material for the 39 Essex Street Local Government Group Seminar 31 October 2006 GORDON NARDELL Barrister 39 Essex Street, London WC2R 3AT tel fax

2 1 Introduction and scope Keeping up appearances: bias and determination Developments since HRA (2 October 2000) driven by ECHR Art 6: independent and impartial tribunal. Emphasis on appearances as well as actuality. How far have the courts gone in applying the new standards to local government decision-making, esp. purely administrative decisions where Article 6 not strictly applicable? The standards agenda: keeping the courts (and lawyers) busy Context for case-law: the system LGA 2000 Pt III follows Widdicombe Report and subsequently the 1997 Report of Lord Nolan s Committee on Standards in Public Life. Applies to relevant authorities (s. 49(6)) principal local authorities, parish (and equivalent) councils, GLA, police authorities and certain other bodies. Secretary of State issues (a) order specifying principles to govern members conduct (s. 49(1)) and (b) model code of conduct, whose mandatory provisions relevant authorities must adopt (ss. 50, 51). Members have a duty to comply with their authority s code (s. 52). Standards Board for England ( SBE ) and Adjudication Panel for England ( APE ) established; parallel Commission for Local Administration and Adjudication Panel for Wales. SBE considers written allegations of breach of code (see further Alex Ruck- Keene s paper). May refer to ESO for investigation. (s. 58). ESO makes one of four findings (s. 59(4)): a. no evidence of any failure to comply b. no action need be taken c. matters subject of investigation should be referred to authority s monitoring officer d. matters subject of investigation should be referred to the APE APE case tribunal decides whether or not any person to whom the matter on which it adjudicates relates has failed to comply with the code of conduct of the relevant authority (s. 79(1)). May punish failure to comply by suspension or partial suspension from the authority for up to one year, or disqualification from that or any relevant authority for up to five years; and if does neither, must name and shame to standards committee. (s. 79(3)-(7)). Member may appeal case tribunal decisions to High Court: s. 79(15). 2 GN Case law update

3 APE also considers appeals from decisions of local standards committees (the local investigation and determination process is described in Alex Ruck-Keene s paper): Local Authorities (Code of Conduct) (Local Determination) Regulations 2003, regs Key provisions of model code: Member must observe code whenever conducting business of authority/acting as representative of authority (para. 1(1)) Certain provisions only apply to activities undertaken in an official capacity (para. 1(2)): conduct which could reasonably be regarded as bringing [the member s] office or authority into disrepute (para. 4) ; using position as member improperly to confer on or secure for himself or any other person an advantage or disadvantage (para. 5(a)). Must promote equality, treat others with respect, not compromise impartiality of authority s staff (para. 2) Must not disclose information received in confidence unless has consent of authorised person or is required by law to disclose (para. 3). Must use authority s resources in accordance with authority s requirements, and must not use for political purposes (unless reasonably regarded as facilitating authority s functions): para. 5(b). In reaching decisions must have regard to statutory advice of Chief Finance Officer and Monitoring Officer (para. 6) Must report to SBE conduct by another member he reasonably believes to involve failure to comply with code (para. 7). Interests: must register financial (para. 14) and other (para. 15) interests. At any meeting of the authority must disclose a personal interest in a matter the meeting considers (para. 9), viz. an interest which relates to a registrable interest or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants the wellbeing or financial position of himself, a relative or friend (or of certain other specified persons): para. 8. Personal interest is a prejudicial interest if the matter is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member s judgment of the public interest (Para. 10). Must leave the room and not seek improperly to influence decision. (Para. 9). 3 GN Case law update

4 Case-law on appeals from APE decisions: steady trickle of cases -- earliest appeal was Murphy v. ESO [2004] EWHC 2377 (Admin) , most recent Livingstone v. APE [2006] EWHC 2533 (Admin) examining a range of issues about the code provisions and operation of the system. This paper deals with selected cases illustrating particular sticking points and areas of interest: Members interests: the proper test, and relationship with law on bias: Richardson and Scrivens. Reasons challenges and the court s powers: Adami Penalties: Murphy, Sloam, Sanders. The appeal process: scope of appeal and second appeal rules Murphy, Adami, Livingstone 2 An open mind: bias and predetermination Introduction of ECHR Article 6 into domestic law has prompted courts to adjust the common law real danger of bias test to accommodate the importance of the appearance of independence and impartiality. Would a fair-minded and informed observer, having considered the facts,... conclude that there was a real possibility that the tribunal was biased? Porter v. Magill [2002] 2 WLR 37, HL Spilled over into areas of local government decision-making where Art 6 not strictly applicable, eg. plan-making: Bovis Homes Ltd v. New Forest DC [2002] EWHC Admin 483 planning committee rejected inspector s local plan recommendations affecting Bs site; although Article 6 not engaged in development plan process, committee chair was member of non-statutory body which had made representations in support of Councils position. Hence courts have developed the law on predetermination whether, as a result of a decision-maker s previous comments or conduct, there is an apparent risk that the decision will not be approached with a genuinely open mind. Recent examples: Member s position: Georgiou v. Enfield LBC [2004] LGR 497, para 31, Richards J: in considering the question of apparent bias in accordance with the [Porter] test, it is necessary to look beyond pecuniary or personal interests and to consider in addition whether, from the point of view of the fair-minded and informed observer, there was a real possibility that the planning committee or some of its members were biased in the sense of approaching the decision with a closed mind and without impartial consideration of all relevant planning issues. That is a 4 GN Case law update

5 question to be approached with appropriate caution, since it is important not to apply the test in a way that will render local authority decision-making impossible or unduly difficult. I do not consider, however, that the circumstances of local authority decision-making are such as to exclude the broader application of the test altogether. Loose talk: Condron v. National Assembly for Wales [2005] EWHC 3007 remark by member of Assembly s Planning Decisions Committee during an exchange with an objector on way into meeting: going to go with the inspector s report. Planning Permission granted for opencast mining and related operations. Remark not directly denied in member s evidence. Lindsay J found unacceptable possible pre-determination in the Planning Decision Committee and quashed the permission. 3 Interesting times Code provisions on interests suggest element of judgment on the member s part: A member must regard himself as having a personal interest in any matter if (para. 8(1)). Richardson & Orme v. North Yorks CC [2004] 1 WLR 1920 judicial review of quarrying permission on the ground (among others) that a member who lives near the site and who intended to oppose the grant of permission was wrongly advised that he had a personal and prejudicial interest so could not participate. Simon Brown LJ approached the question as one or rationality: 76. The first point to make is that the initial and principal judgment on the question is for the individual councillor himself. This is plain both from the consultation paper and also from several of the provisions in the Code itself, for example paragraphs 8(1) and 11(1). But there comes a point at which it would clearly be irrational and therefore unlawful for the councillor to conclude that he does not have a personal interest under paragraph 8(1) or, as the case may be, a prejudicial interest under paragraph 10(1). That point, Richards J below concluded, was reached here: `84. In any event I think it plain that he did have a prejudicial interest and that neither he nor the Council could reasonably have taken a different view. In Scrivens v ESO [2005] EWHC 529 (Admin), [2005] LGR 641, Cllr Scrivens appealed against APE findings on three complaints (all submitted by personal or political rivals on Farnham Parish Council) that he had variously failed to declare personal and prejudicial interests. Case tribunal upheld two of the complaints and imposed 2 months suspension. Appeal confined to point of law based on Richardson. Stanley Burnton J held: 5 GN Case law update

6 Simon Brown LJ s remarks were ratio not obiter, but since the CA had assumed the point rather determined it after argument, it was not binding. As a matter of construction and context, the primary judgment as to whether a member had a personal, and if so a prejudicial, interest was for the decisionmaker (ie the APE), not the member. That is, the APE decides the issue on the basis of all the material before it; it is not confined to deciding whether the member s own judgment exceeded the limits of rationality. That conclusion supported by close link between the code provisions on interests and the general law on bias, under which the court itself decides whether there are objective grounds for fearing a lack of independence and impartiality (see above). Objective approach also supported by terms of Relevant Authorities (General Principles) Order 2001 members should not place themselves in situations where their honesty and integrity may be questioned, should not behave improperly and should on all occasions avoid the appearance of such behaviour. Moreover the standards regime was regulatory not penal in nature. Comments: Problem for members: effectively second-guessing a future decision by the ESO, standards committee or case tribunal. Particular issue for parish councillors: lack of ready access to advice at meetings Relationship with bias case-law contingent. Difficult to see how issues arise under the code in eg. predetermination cases where flaw does not lie in any interest of a member. 4 Reasons challenges and the court s powers Adami v. ESO [2005] EWHC 1577 (Admin); [2005] EWCA Civ 1754 Case tribunal made various findings of breach of code against Cllr Adami (North Dorset DC) and disqualified him for 4 years. Hearing had eventually proceeded in A s absence and without witnesses of fact. ESO s report incorporated points made by A, in correspondence, as to why facts (which were substantially undisputed) did not disclose breaches of the code. Tribunal s recorded finding on that issue as follows: The tribunal finds that the respondent breached these provisions by the conduct identified in paragraph 7.1 to 7.8 of the report of the ESO with one immaterial exception. The tribunal adopts the reasoning of the ESO as set out in his report. 6 GN Case law update

7 Bean J held that this was a failure to give adequate reasons. The ESO s counsel asked him to adjourn the case to enable the tribunal chair to provide an affidavit giving reasons. Bean J declined, and instead quashed the decision without remitting it: while the tribunal might rationally have decided to reach the conclusions it did on the material before it, the result of remission would be to invite an after-the-event attempt to give reasons that would go far beyond the procedure for amplifying reasons or explaining ambiguities in reasons identified in any of the cases CA held that the proper approach was as advised in its judgment in English v. Emery Reimbold & Strick [2002] 1 WLR 2409, ie. the usual course for an appellate court upholding a pure reasons challenge should be either to quash and remit, or to remit without quashing. There was a risk that quashing a potentially rational decision without remitting would usurp the function of a specialist tribunal acting under specialist legislation, and was likely to be a disproportionate response to a failure to give adequate reasons. CA set aside the tribunal s findings and penalty but -- despite some 18 months having by then passed since the tribunal s decision -- remitted the case for reconsideration and adequate formulation of its reasons on both proof of breach and (if appropriate) the sanction to be imposed. Impact on quality of reasoning in APE? 5 Penalties Court has been willing to intervene - perhaps to an unexpected extent -- to ensure that APE Guidance on sanctions duly applied and that penalties not out of line with nature of conduct and object and purpose of the code Murphy v. ESO [2004] EWHC 2377 (Admin): Cllr. Murphy (Macclesfield BC) declined to withdraw from a committee meeting in the face of advice, in advance, from the Chief Executive and the Deputy Monitoring Officer that he had a personal and prejudicial interest. The meeting was due to consider an Ombudsman s report containing criticisms of Cllr. Murphy, who he felt he was entitled to appear to defend himself; some of the advice he received was conflicting. APE found he had a personal and prejudicial interest and suspended him for 1 year despite having some sympathy for his position. Keith J dismissed appeal against tribunal s findings but reduced penalty to 4 months: court was extremely hesitant to interfere with the sanction which a specialised tribunal thinks appropriate, and statutory regime too recent for a 7 GN Case law update

8 clear practice, or tariff, to have emerged. But the tribunal could not have given sufficient weight to the unusual feature of this case, namely that Cllr Murphy s interest in the Ombudsman s report was known to everyone, or to the conflicting and confusing advice he received. Sanders v. Kingston (No. 2) [2005] EWHC 2132 (Admin), Sullivan J: Cllr Sanders (Peterborough City Council) found by APE to have failed to comply with the code in respect of an angry outburst during an interview between a constituent of his and an officer investigating alleged housing benefit fraud at a time when he was leader of the Council. Disqualified for 18 months After some initial dispute, the parties accepted that the Guidance on Powers available to a Case Tribunal, issued by the APE President and Deputy President under LGA 2000 s. 75(9)(b), had been known to the tribunal members. But there was no reference to it during the hearing, and the decision was conspicuously silent on the matters to which the Guidance draws tribunal s attention when considering whether to disqualify and for what period. Failure to refer to the Guidance is not necessarily an error of principle, and reference to it in tribunals reasons should not be a kind of mantra. But in this case, failing to engage with the Guidance was an error of principle: on the facts, if the tribunal had engaged the Guidance, it was difficult to see how it could reasonably have concluded that the Appellant s conduct could be equated with the kinds of conduct described in paragraph 6 (deliberately seeking personal gain at public expense, repeated breaches of the code, or misusing power of public funds for political gain). Sloam v. SBE [2005] EWHC 124 (Admin): Cllr Sloan (LB Barnet) deceitfully attempted to use, and subsequently renew, a disabled parking permit which pertained to another persons who owned a car used by S s son. He was convicted by magistrates of an offence of deception. The APE found that he had breached the code and disqualified him for 1 year, the tribunal having actively considered a period of 2 years but had regard to S s record of public service and to the testimonials that have been presented on his behalf. Bennett J dismissed the appeal against the findings. He also upheld the penalty. The court should be slow to intervene in matters that have been decided by a specially trained tribunal. The Guidance indicated that if disqualification is appropriate at all, the usual minimum period would be 1 year. The tribunal had had regard to that and to all that S had said in mitigation. Livingstone: Collins J indicating that suspension would have been quashed even if APE finding of breach upheld. 8 GN Case law update

9 6 Some points on the appeals process under LGA 2000 s. 79(15) Livingstone deals expressly with the review v. rehearing issue under CPR 52.11(1). But what is meant by the decision of the lower court ie. the APE being wrong (CPR 52.11(3)(a)) in this context? Section 79(15) is an open ended appeal provision. Plainly not confined to errors of law, though some of the appeals considered here raised pure errors of that kind Scrivens, Adami. Also clear from case-law Sloam, Murphy, Livingstone that court recognises that on many of the issues raised on appeal, a degree of deference is due by the generalist judge to the specialist APE. Best guide to basis on which court can intervene with APE findings and conclusions is probably CA judgment in Subesh [2004] EWCA Civ 64 disagreement plus. The appellant must persuade the court:...not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds on which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the supposed difference between a perceived error and disagreement. In either case the appeal court disagrees with the court below and, indeed, may express itself in those terms. The true distinction is between the case where the appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view.... (Para. 44, emphasis in original) The process is not a two-stage one of first identifying error and then proceeding to draw its own inferences in substitution for those of the tribunal, because:...the `error may consist precisely in the IATs conclusion that the inferences which it would draw are the right ones.... Neither as a matter of jurisdiction..., nor by reference to the general law, is the IAT required to look for an error by the Adjudicator as if that were an exercise hermetically sealed from its own appreciation of the merits of the case. (para. 45) Appeal to CA from High Court is a second appeal to the CA, governed by Access to Justice Act 1999 s. 55: Permission can only be obtained from CA Party seeking permission must surmount high threshold of s. 55(1): important point of principle or practice or some other compelling reason for the Court of Appeal to hear it. In Murphy, Arden LJ accepted that case undoubtedly raises interesting points but did not pass the s. 55 test. CA may limit permission to specific grounds. In Adami, the sole ground on which permission was given was whether Bean J was right to quash without remitting. 9 GN Case law update

10 Gordon Nardell October GN Case law update

FULL DECISION. Reference in relation to a possible failure to follow the Code of Conduct. Former Councillor Robert Dockerill. Ms Jennifer Rogers

FULL DECISION. Reference in relation to a possible failure to follow the Code of Conduct. Former Councillor Robert Dockerill. Ms Jennifer Rogers FULL DECISION CASE REF: APE 0406 HEARING DATE: 14 November 2008 RE: RESPONDENT: RELEVANT AUTHORITY CONCERNED: ESO: (Ethical Standards Officer) ESO REPRESENTATIVE: Reference in relation to a possible failure