Harvey, R (On the Application Of) v Ledbury Town Council & Anor

Key legal principles and grounds:

The primary issue was the interplay between the Localism Act 2011 (notably s.27 and s.28) and the general powers of local authorities under section 111 of the Local Government Act 1972. The court held that where an allegation properly falls within the Code of Conduct regime, the decision-making and sanction stages must follow the statutory arrangements under s.28, including involvement of the independent person. A parish council may not lawfully impose formal sanctions by an alternative internal grievance route in place of the s.28 procedures. The court also found significant procedural unfairness in the way the review was conducted and that the protective measures imposed were not shown to be the product of a proportionate balancing of rights under Article 10 ECHR.

Material grounds for the decision:

• The Decision of 11 May 2017 continuing and enlarging prohibitions was ultra vires in respect of the decision-and-sanction elements because those matters fall within the s.28 Code arrangements.
• Even on pre-2011 principles, many of the sanctions were of doubtful or excessive scope and likely ultra vires.
• The review process was procedurally unfair: allegations were not adequately particularised, there was inadequate investigation or disclosure of the basis for the review, and the claimant had insufficient opportunity to respond.
• On proportionality grounds the Council had not demonstrated that the measures struck a fair balance between the claimant's Article 10 rights and the interest in protecting staff.

Background and parties

The claimant, Councillor Elizabeth Harvey, was a member of Ledbury Town Council who challenged the council’s decision of 11 May 2017 to continue and expand a set of prohibitions first imposed in May 2016 following staff complaints alleging bullying and harassment. The claimant sought judicial review (quashing order and declarations) on grounds that the Decision was ultra vires, substantively unfair (including contrary to Article 10 ECHR), and procedurally unfair. Permission to bring judicial review was granted.

Nature of the claim and procedural posture

This was a first instance substantive judicial review hearing. The issues were (i) whether the council had power to investigate and impose sanctions by a grievance/employment process rather than through the Code of Conduct arrangements required by the Localism Act 2011, (ii) whether the decision was substantively lawful and proportionate in human-rights terms, and (iii) whether the process afforded sufficient procedural fairness.

Issues framed by the court

• Interrelationship of s.111 Local Government Act 1972 and the Localism Act 2011 (particularly s.27 and s.28) and whether that left a parish council free to impose sanctions under an internal grievance regime.
• Whether the decision was ultra vires if the statutory Code procedures should have been used for decision and sanction stages.
• Whether the council’s action infringed Article 10 ECHR and, if so, whether it was justified and proportionate.
• Whether the council’s process complied with requirements of procedural fairness.

Court’s reasoning and outcome

The judge analysed the statutory text and purpose of the 2011 Act, the mandatory nature of arrangements under s.28, and the legislated role of the independent person. The court concluded that Parliament intended a changed regime and safeguards for standards matters and that sanctions and decision-making on alleged breaches are to be subject to the s.28 arrangements. The judgment accepted that limited pre-formal inquiries may be permissible (following authorities such as Hussain) but held that the decision-and-sanction elements must involve the s.28 procedure and independent person. The May 2017 decision was therefore ultra vires in relation to sanctions and decision-making. The court also found procedural unfairness in the absence of adequate particularisation, investigation and opportunity to respond, and that the council had not shown the measures were a proportionate interference with Article 10. The decision of 11 May 2017 was quashed and declaratory relief granted.

Wider context: the judgment noted that the point is practically important for local authorities and for guidance issued by local associations, and stressed the protective role of the independent person and the importance of procedural fairness in member/staff disputes.

The claim succeeded. The court quashed the Council's decision of 11 May 2017 because the decision and sanction elements were ultra vires insofar as they should have been taken under the Localism Act 2011 code arrangements (including consultation with an independent person) and because the review process was procedurally unfair and the measures were not shown to be a proportionate interference with the claimant's Article 10 rights. A declaratory remedy was granted.