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

A parish council may investigate conduct informally or through mediation before deciding whether formal code proceedings are required. It cannot make a formal finding of breach or impose sanctions outside the statutory arrangements under the Localism Act 2011. Those stages require the involvement of an independent person.

Where a council uses a grievance process to impose disciplinary restrictions on an elected councillor, it must identify and investigate the allegations, give the councillor a fair opportunity to respond, and address proportionality where Article 10 is engaged. Restrictions require a rational connection, consideration of less intrusive measures and a fair balance.

The claimant, a town councillor, challenged the council’s decision to continue and enlarge restrictions imposed after complaints by its Clerk and Deputy Clerk alleging bullying, harassment and intimidation. The restrictions excluded her from committees and outside bodies and controlled her communications with council staff.

She argued that the council had acted ultra vires by using a grievance procedure instead of the statutory code-of-conduct arrangements, and that the decision was substantively and procedurally unfair. The principal authority’s code investigation had found no breach. The issues were the scope of the council’s powers, the required statutory process, and the fairness and proportionality of the decision.

1. Ultra vires. The claim succeeded. Sections 27 and 28 of the Localism Act 2011 establish a mandatory code-of-conduct framework for parish councils, aligned with the arrangements of the principal authority. The statutory scheme does not permit a parish council to create a parallel formal disciplinary code and choose between that process and the statutory process.
2. The Act permits a preliminary non-formal investigation, mediation or pause while other steps are taken. But a formal decision on whether a councillor breached the code, and any consequential action or sanction, must be taken through arrangements involving the independent person. Section 28(11) recognises that a finding may follow an investigation outside the arrangements, but it does not remove the independent-person safeguard at the decision and action stages.
3. R (Taylor) v Honiton Town Council was consistent with that conclusion: a parish council could not go behind the principal authority’s code decision. R (Lashley) v Broadland DC established a pre-2011 power to investigate councillor misconduct under the Local Government Act 1972, but did not determine the post-2011 position. Hussain v Sandwell Metropolitan Borough Council permitted a pre-formal inquiry, not a formal investigation and sanctions process outside the statutory arrangements.
4. The 2017 process was procedurally unfair. The allegations were not sufficiently particularised or investigated, the material from staff interviews was not properly disclosed, and the claimant had no effective opportunity to respond to the case considered in private.
5. The decision was also substantively unfair and disproportionate. The council did not engage with the proportionality factors identified in Bank Mellat v Her Majesty’s Treasury (No 2): legitimate objective, rational connection, less intrusive measures and fair balance. The restrictions were quashed and declaratory relief granted.

First-instance judicial review. Permission was granted by HHJ Allan Gore QC on 3 October 2017. The High Court quashed the council’s decision of 11 May 2017 and granted declaratory relief.