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Development Management Procedure

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  • “Regulations provide for how a planning application should be publicised and the minimum time allowed for comments as follows:”[1]

Planning applications and political groups

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Advice from “Probity in planning” (2013)

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”A local code on planning should also address the following more specific issues about lobbying:

Planning decisions cannot be made on a party political basis in response to lobbying; the use of political whips to seek to influence the outcome of a planning application is likely to be regarded as maladministration.

Planning committee or local plan steering group members should in general avoid organising support for or against a planning application, and avoid lobbying other councillors.

Councillors should not put pressure on officers for a particular recommendation or decision, and should not do anything which compromises, or is likely to compromise, the officers’ impartiality or professional integrity.

Call-in procedures, whereby councillors can require a proposal that would normally be determined under the delegated authority to be called in for determination by the planning committee, should require the reasons for call-in to be recorded in writing and to refer solely to matters of material planning concern.”[2]

WCC docs

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11.3.7 Planning decisions cannot be made on a party political basis. Political groups should never dictate how Members should vote on a planning issue and Members should not excessively lobby fellow Members regarding concerns or views, nor attempt to persuade them that they should decide how to vote in advance of the meeting at which any planning decision is to be taken.[3]

Standards

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2011

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2013 review

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2019 review

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Recommendations
  1. Recommendation 1: The Local Government Association should create an updated model code of conduct, in consultation with representative bodies of councillors and officers of all tiers of local government.
  2. Recommendation 2: The government should ensure that candidates standing for or accepting public offices are not required publicly to disclose their home address. The Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 should be amended to clarify that a councillor does not need to register their home address on an authority’s register of interests.
  3. Recommendation 3: Councillors should be presumed to be acting in an official capacity in their public conduct, including statements on publicly accessible social media. Section 27(2) of the Localism Act 2011 should be amended to permit local authorities to presume so when deciding upon code of conduct breaches.
  4. Recommendation 4: Section 27(2) of the Localism Act 2011 should be amended to state that a local authority’s code of conduct applies to a member when they claim to act, or give the impression they are acting, in their capacity as a member or as a representative of the local authority.
  5. Recommendation 5: The Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 should be amended to include: unpaid directorships; trusteeships; management roles in a charity or a body of a public nature; and membership of any organisations that seek to influence opinion or public policy.
  6. Recommendation 6: Local authorities should be required to establish a register of gifts and hospitality, with councillors required to record any gifts and hospitality received over a value of £50, or totalling £100 over a year from a single source. This requirement should be included in an updated model code of conduct.
  7. Recommendation 7: Section 31 of the Localism Act 2011 should be repealed, and replaced with a requirement that councils include in their code of conduct that a councillor must not participate in a discussion or vote in a matter to be considered at a meeting if they have any interest, whether registered or not, “if a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision-making in relation to that matter”.
  8. Recommendation 8: The Localism Act 2011 should be amended to require that Independent Persons are appointed for a fixed term of two years, renewable once.
  9. Recommendation 9: The Local Government Transparency Code should be updated to provide that the view of the Independent Person in relation to a decision on which they are consulted should be formally recorded in any decision notice or minutes.
  10. Recommendation 10: A local authority should only be able to suspend a councillor where the authority’s Independent Person agrees both with the finding of a breach and that suspending the councillor would be a proportionate sanction.
  11. Recommendation 11: Local authorities should provide legal indemnity to Independent Persons if their views or advice are disclosed. The government should require this through secondary legislation if needed.
  12. Recommendation 12: Local authorities should be given the discretionary power to establish a decision-making standards committee with voting independent members and voting members from dependent parishes, to decide on allegations and impose sanctions.
  13. Recommendation 13: Councillors should be given the right to appeal to the Local Government Ombudsman if their local authority imposes a period of suspension for breaching the code of conduct.
  14. Recommendation 14: The Local Government Ombudsman should be given the power to investigate and decide upon an allegation of a code of conduct breach by a councillor, and the appropriate sanction, on appeal by a councillor who has had a suspension imposed. The Ombudsman’s decision should be binding on the local authority.
  15. Recommendation 15: The Local Government Transparency Code should be updated to require councils to publish annually: the number of code of conduct complaints they receive; what the complaints broadly relate to (e.g. bullying; conflict of interest); the outcome of those complaints, including if they are rejected as trivial or vexatious; and any sanctions applied.
  16. Recommendation 16: Local authorities should be given the power to suspend councillors, without allowances, for up to six months.
  17. Recommendation 17: The government should clarify if councils may lawfully bar councillors from council premises or withdraw facilities as sanctions. These powers should be put beyond doubt in legislation if necessary.
  18. Recommendation 18: The criminal offences in the Localism Act 2011 relating to Disclosable Pecuniary Interests should be abolished.
  19. Recommendation 19: Parish council clerks should hold an appropriate qualification, such as those provided by the Society of Local Council Clerks.
  20. Recommendation 20: Section 27(3) of the Localism Act 2011 should be amended to state that parish councils must adopt the code of conduct of their principal authority, with the necessary amendments, or the new model code.
  21. Recommendation 21: Section 28(11) of the Localism Act 2011 should be amended to state that any sanction imposed on a parish councillor following the finding of a breach is to be determined by the relevant principal authority.
  22. Recommendation 22: The Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015 should be amended to provide that disciplinary protections for statutory officers extend to all disciplinary action, not just dismissal.
  23. Recommendation 23: The Local Government Transparency Code should be updated to provide that local authorities must ensure that their whistleblowing policy specifies a named contact for the external auditor alongside their contact details, which should be available on the authority’s website.
  24. Recommendation 24: Councillors should be listed as ‘prescribed persons’ for the purposes of the Public Interest Disclosure Act 1998.
  25. Recommendation 25: Councillors should be required to attend formal induction training by their political groups. National parties should add such a requirement to their model group rules.
  26. Recommendation 26: Local Government Association corporate peer reviews should also include consideration of a local authority’s processes for maintaining ethical standards.

Cases on C-of-C

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Sanders v Kingston (2005)

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  • Wilkie J, Sanders v Kingston (1) [2005] EWHC 1145 (Admin)
  • Wilkie J set out the three questions to be answered by a court in determining whether a finding that a member has breached a code of conduct and or any sanction imposed had contravened article 10 as follows:
"72 In my judgment the questions that I must answer are as follows:
1. Was the Case Tribunal entitled as a matter of fact to conclude that councillor Sanders' conduct was in breach of paragraph 2(b) and/or paragraph 4 of the Code of Conduct?
2. If so, was the finding in itself or the imposition of a sanction prima facie a breach of article 10?
3. If so, was the restriction involved one which was justified by reason of the requirements of article 10(2)?"

Livingstone case (2006)

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33. I shall deal with this latter submission first. The right of freedom of speech has always been recognised by the common law. In Derbyshire CC v Times Newspapers [1993] A.C. 534 at p. 551F, Lord Keith observed:-

“My noble and learned friend, Lord Goff of Chieveley, in A-G v Guardian Newspapers Ltd [1990] 1 A.C. 109, 283-284, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law or the subject and Article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field.”

Article 10 is now incorporated into our law by the Human Rights Act, and so whether a particular restraint on freedom of speech was proportionate has expressly to be considered. It is Mr Maurici’s submission that in this case it was not and he relies in particular upon the government’s response to the reconsideration to which I have already referred that conduct not in an official capacity should only be within the Code if unlawful. That he submits demonstrates that the restraint in this area was disproportionate in that it cannot be said to be necessary in a democratic society.

34. There can be no doubt that restraints imposed by a code of conduct designed to uphold proper standards in public life are in principle likely to be within Article 10(2). But it is important that the restraints should not extend beyond what is necessary to maintain those standards. There has always been a debate over the extent to which conduct in private as opposed to public life should be regulated and that debate continues. The government has, it seems, recognised that Paragraph 4 of the Code may go too far, but that does not of itself mean that it is not necessary in the circumstances. It must, however, raise some doubts. Added to that is the recognition that it is not considered necessary to go that far in Scotland.

35. Mr Maurici has suggested that the appellant was making a political comment so that there is a higher threshold to be surmounted in establishing that the restraint was proportionate. Interference with the right of free speech which impedes political debate must be subjected to particularly close scrutiny: see Sanders v Kingston [2005] LGR 719 in which at p.745h Wilkie J refers to the high level of protection given to expressions of political views.

36. I have no doubt that the appellant was not to be regarded as expressing a political opinion which attracts the high level of protection. He was indulging in offensive abuse of a journalist whom he regarded as carrying out on his newspaper’s behalf activities which the appellant regarded as abhorrent. Nevertheless, as Mr Morshead accepted, Article 10 applied. Anyone is entitled to say what he likes of another provided he does not act unlawfully and so commits an offence under, for example, the Public Order Act. Surprising as it may perhaps appear to some, the right of freedom of speech does extend to abuse. Observations, however offensive, are covered. Indeed, as Hoffman, LJ observed in R v Central Television Plc [1994] 3 All ER 641 at 652:-

“Freedom means ... the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute ... It cannot be too strongly emphasised that outside the established exceptions ... there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.”

Mullaney case (2009)

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  • R (Mullaney) v. The Adjudication Panel for England and others [2009] EWHC 72 (Admin) *Found that a fact-sensitive analysis was required when considering “official capacity”.

MC case (2011)

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Coleman case (2012)

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  • LGS/2012/0582 Cllr Brian Coleman v London Borough of Barnet Standards Committee FTT, 27 July 2012 (LGC outline here)
  • Cllr Brian Coleman was a member of the Borough Council and sent emails which were found to fail to show respect for others. He appealed to the First-tier Tribunal, but his appeal was rejected.[5]

Calver case (2012)

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Lord Carlile case (2013)

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  • Arden LJ, Patten LJ, McCombe LJ, R (Lord Carlile of Berriew and others) v The Secretary of State for the Home Department [2013] EWCA Civ 199

  • 56. "Moreover, the court has to consider the value of the right not in the abstract but in the context in which the appellants seek to exercise it. While it must be borne in mind that the right to freedom of expression extends not only to ideas that are favourably received, or are inoffensive, but also to ideas that shock or disturb, when it comes to balancing rights or interests, the fact that the communication relates to a matter of public interest is a factor to be put in the side of the scales in favour of allowing the exercise of the right (see Axel Springer v Germany (APP No 3994/08)). When conflicting rights are balanced, contribution to debate on matters of public interest is "an essential initial criterion": Axel Springer at [78]. Here the communication relates to a matter of public interest. Indeed I accept Miss Montgomery's submission that the exercise of the right in this case had an exceptionally high value. The link with the public interest is far from tenuous. The appellants seek to exercise their article 10 rights in Parliament. As is common knowledge and can be seen to some degree from Parliament's website, there are frequently meetings in Parliament and the subject matter obviously does not have to be approved by the government or be compatible with national policy. The value of free debate in a democratic society cannot be underestimated. It increases knowledge and understanding on national and international affairs."

Dennehy case (2013)

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  • HHJ McKenna, Benjamin Dennehy - v. - London Borough of Ealing [2013] EWHC 4102 (Admin)
  • the High Court refused the claimant councillor's application for judicial review of a decision by the local authority's standards committee that comments he had posted on a blog breached the authority's code of conduct.

Heesom case (2014)

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28. It was uncontentious before me that, there being no common law right for an authority to impose sanctions that interfere with local democracy, upon the abolition of these sanctions and outside the categories I have described above, a councillor in England can no longer be disqualified or suspended, sanctions being limited to (for example) a formal finding that he has breached the code, formal censure, press or other appropriate publicity, and removal by the authority from executive and committee roles (and then subject to statutory and constitutional requirements).

29. The rationale for this change was set out in a number of statements issued by the Department for Communities and Local Government. There appear to have been two themes. First, the United Kingdom Government considered that the earlier regime, consisting of a centrally prescribed model code of conduct, standards committees with the power to suspend a local authority member and regulated by a central quango, was inconsistent with the principles of localism. There was, in addition, concern that the regime was a vehicle for vexatious or politically motivated complaints which discouraged freedom of speech and which could be used to silence or discourage councillors from (e.g.) whistleblowing on misconduct.

37. I was referred to a very large number of Strasbourg cases, but notably to Thorgeirson v Iceland (1992) 14 EHRR 843, De Haes and Gijsels v Belgium (1997) 1 EHRR 1, Janowski v Poland (1999) 29 EHRR 705, Wabl v Austria (2001) 31 EHRR 51, Jerusalem v Austria (2003) 37 EHRR 25, Mamère v France (2009) 49 EHRR 39, Lombardo v Malta (2009) 48 EHRR 23, Monnat v Switzerland (2010) 51 EHRR 34, and Morel v France (2013) Application No 25689/10.

38. I need not quote at length from those cases. From them, the following propositions can be derived.

i) The enhanced protection applies to all levels of politics, including local (Jerusalem, especially at [36]).
ii) Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated (see, e.g., de Haes at [46]-[48], and Mamère at [25]: see also Calver at [55] and the academic references referred to therein). Whilst, in a political context, article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false (R (Woolas) v Parliamentary Election Court [2012] EWHC 3169 at [105])
iii) Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to “wider limits of acceptable criticism” (see, e.g., Janowski at [33]; but it is a phrase used in many of the cases). They are expected and required to have thicker skins and have more tolerance to comment that ordinary citizens.
iv) Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press; because the right protects, more broadly, the public interest in a democracy of open discussion of matters of public concern (see, e.g., Janowski at [33]). Thus, so far as freedom of speech is concerned, many of the cases concern the protection of, not a politician’s right, but the right of those who criticise politicians (e.g. Janowski, Wabl and Jerusalem). Castells, of course, was both; the senator criticising politicians within the Spanish Government through the press.
v) The protection goes to “political expression”; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views (Calver at [79]), but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others (Thorgeirson at [64]: see also Calver at [64] and the academic references referred to therein). The cases are careful not unduly to restrict the concept; although gratuitous personal comments do not fall within it.
vi) The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis (e.g. Lombardo at [58], Jerusalem at [42] and following, and Morel at [36]). What amounts to a value judgment as opposed to fact will be generously construed in favour of the former (see, e.g., Morel at [41]); and, even where something expressed is not a value judgment but a statement of fact (e.g. that a council has not consulted on a project), that will be tolerated if what is expressed is said in good faith and there is some reasonable (even if incorrect) factual basis for saying it, “reasonableness” here taking account of the political context in which the thing was said (Lombardo at [59]).
vii) As article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under article 10(2), the determinative question is whether the restriction is “necessary in a democratic society”. This requires the restriction to respond to a “pressing social need”, for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
viii) As with all Convention rights that are not absolute, the State has a margin of appreciation in how protects the right of freedom of expression and how it restricts that right. However, that margin must be construed narrowly in this context: “There is little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest” (see, e.g., Lombardo at [55]-[56], Monnat at [56]).
ix) Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the court (Lombardo at [53]).

39. As I have said, the law requires politicians to have thick skin and be tolerant of criticism and other adverse comment. Strasbourg has also considered the position of non-elected public servants in this context. Of these cases, Janowski is perhaps the most useful.

Taylor case (2016)

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  • Edis J, R (Taylor) v Honiton Town Council [2016] EWHC 3307 (Admin)
  • Edis J considered the intention of Parliament in s.28. In the context of the first issue he held that the effect of s.28(6) and (9) is to place the duty of investigation and decision of allegations against members of a parish council on the principal authority (i.e. the LA): [33]. Parliament had provided for allegations of breaches of the code to involve independent persons and: “it would frustrate that important safeguard to hold that a parish council had a duty to reconsider the principal authority’s decision and substitute its own if it chose to do so”. He held that it was to be inferred from s.28(8) that Parliament considered that the role of the “independent person” was of real importance: [29]. He also found that the premise of the challenge in the case – that Honiton was the ultimate decision- making authority on the issues of breach and sanction – was “clearly wrong”. The Act required the principal authority to have arrangements in place for the exercise of decision-making power under s.28(11): “It would make a nonsense of that scheme if the parish council were able to take its own decision without having any of those arrangements in place. The whole point of the scheme is to remove decision-making powers and duties from very small authorities which do not have the resources to manage them effectively and who may be so small that any real independence is unattainable” [35].

Hussain case (2017)

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  • Green J., Hussain v. Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin)
  • Cllr Mahboob Hussain arranged the sale of property to a friend below market value and instructed officers to reduce or cancel parking tickets for his wife and sons. He asked the court to stop a council investigation and for damages for the publication of documents, but it found against him.
  • Hussain did not stand again for election in May 2018. A few days later, after a hearing, he was ordered to pay £139,000 in costs.[6]

Harvey case (2018)

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  • Cockerill J., R (Harvey) v Ledbury Town Council [2018] EWHC 1151 (Admin)
  • concerned the Town Council's decision to impose sanctions on a councillor under its grievance procedures, banning her from serving on any committees and from communicating with any staff, following complaints of bullying and harassment. The councillor contended that any such complaints had to be dealt with under the Localism Act procedures; the council said that the 2011 Act did not prohibit parish councils from instigating proceedings under their grievance procedure where what was in issue was a matter involving internal relations between its employees and staff. This case provides a useful analysis of the new standards regime under the Localism Act 2011, and makes clear that it overrides the previous statutory procedures and also local authorities' inherent powers under the 1972 Act as determined in the Lashley case. It also highlights that councils cannot try and get round the 2011 Act's lack of effective sanctions by dealing with complaints under their staff grievance procedures. The judgment provides a reminder that any process must be fair and in accordance with the principles of natural justice, i.e. the right to a fair hearing by an unbiased and impartial body requires that individuals should have been given prior notice of the allegations made against them, a fair opportunity to answer them, and the opportunity to present their own side of the story. The right to a fair hearing is also guaranteed by Art. 6(1) ECHR, which complements the common law rather than replaces it.[7]

Harvey v. Ledbury TC (2018)

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Johnson contempt case (2022)

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Harry Miller v. The College of Policing (2021)

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Boris Johnson panel, 2018

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In August 2018, Boris Johnson, who was then Foreign Secretary, made comments about Islamic full-face coverings, writing in a newspaper article that women wearing them looked like "letterboxes" and "bank robbers". This led to complaints against Johnson and an investigation to determine whether his remarks breached the Conservative Party code of conduct, and Naomi Ellenbogen QC was appointed to chair an independent panel to decide the matter. She found that Johnson’s use of language could be considered provocative but was not contrary to the party rules, which did not "override an individual’s right to freedom of expression". Her decision letter said it would be "unwise to censor excessively the language of party representatives or the use of satire to emphasise a viewpoint, particularly a viewpoint that is not subject to criticism". Consequently, the complaint was not upheld.[8]

Johnson "misconduct in public office" case, 2019

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LGA Model Code

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Judicial review

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Notes

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  1. ^ Influencing the planning process, Commons Library, 13 December, 2019
  2. ^ Probity in planning for councillors and officers (Planning Advisory Service, April 2013)
  3. ^ WCC Protocol 4 Planning Code of Good Practice, accessed 30 July 2022
  4. ^ 2019 Review, p. 41
  5. ^ Chris Hewett, Councillor Brian Coleman's appeal against Barnet Council's standards committee ruling rejected, Times Series, 17 August 2012, |larchived 22 February 2014
  6. ^ Ex Sandwell councillor ordered to pay legal costs after court battle, BBC News, 9 May 2018
  7. ^ commentary, bevanbrittan.com
  8. ^ Hughes, David (21 December 2018). "Conservatives rule Boris Johnson comparing Muslim women in veils to to letter boxes and bank robbers was 'respectful'". The Independent. Retrieved 2 October 2022.

Further reading

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