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Councillor succeeds in High Court challenge to imposition of sanctions

A councillor has won a High Court battle with a town council in Herefordshire over sanctions the authority imposed following a complaint by the clerk and deputy clerk.

In Harvey, R (On the Application Of) v Ledbury Town Council & Anor [2018] EWHC 1151 Cllr Elizabeth Harvey, who represents the constituents of Ledbury North, challenged a decision of the council made on 11 May 2017.

The decision continued and enlarged a number of restrictions first placed on Cllr Harvey in May 2016 following the complaint about her conduct.

These restrictions meant Cllr Harvey could not sit on any committees, sub-committees, panels or working groups or represent the council on any outside body. All communications between her and its clerk and deputy clerk were also to go through the mayor. Another member, Cllr Harrison, who was an interested party in the case, was also sanctioned.

Mrs Justice Cockerill said Cllr Harvey's grounds for judicial review were that:

  1. The decision was ultra vires, such matters being within the ambit of the Code of Conduct for Councillors, which was found not to have been breached following an investigation carried out for Herefordshire Council.
  2. In the alternative, it was substantively unfair, being in breach of Article 10 ECHR or substantively unfair at common law; and / or
  3. It was procedurally unfair “as regards (paraphrasing somewhat) absence of investigation, absence of identified basis, absence of disclosure to the decision-making body of full evidence, absence of opportunity to respond or to defend herself”.

The town council argued that the decision was not ultra vires, in that the actions were rightly not taken pursuant to the Code of Conduct put in place under the 2011 Localism Act and the council had power to act otherwise than through the code. It also rejected the complaints of substantive and procedural unfairness.

However, Mrs Justice Cockerill ruled in favour of Cllr Harvey. The judge said the decision must be quashed and that the claimant was entitled to declaratory relief.

Jonathan Goolden, partner at Wilkin Chapman and the external investigator appointed by Herefordshire in the case, said the key points form the case were:

  • The council were not able to sanction Cllr Harvey other than going through the procedural safeguards of a code of conduct process. The council’s restrictions on Cllr Harvey (continued even after she was found not to have been in breach of the code) were an unlawful sanction.
  • The conduct of the grievance process through which the restrictions were imposed was unfair.

MUST READ: Disciplining councillors – Richard Clayton QC and Jonathan Goolden’s analysis of the Harvey case.