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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lashley, R (on the application of) v Broadland District Council [2001] EWCA Civ 179 (7 February 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/179.html Cite as: [2001] BLGR 264, (2001) 3 LGLR 25, [2001] EWCA Civ 179

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION
MR JUSTICE MUNBY

		Royal Courts of Justice Strand, London, WC2A 2LL Wednesday 7th February 2001

LORD JUSTICE KENNEDY :

1. This is an appeal from a decision of Mr Justice Munby who, on 16^th June 2000, dismissed the Appellant's application for judicial review of a decision of the Standards Committee of the Respondent Council. That decision, taken on 6^th December 1999, was that the Appellant's conduct "on or about May 1999 fell short of the highest standards expected of councillors." The Committee also decided to take no further action.

Facts

2. Prior to the local government elections which were held on Thursday 6^th May 1999 the Conservatives were in control of Broadland District Council. Following those elections there were 25 Conservative councillors, but one of them had ceased to be a member of the Conservative group before the election. There were 12 Labour councillors led by the Appellant, nine Liberal Democrats and three Independents. The District Council's Corporate Services Manager, Mr Johnson, was responsible for the allocation of seats on committees and sub-committees in accordance with the Local Government and Housing Act 1989, and, prior to the election, on the assumption that the calculation would be straightforward, he had promised to inform party group leaders of their allocations by the afternoon of Friday 7^th May 1999. As things turned out everything depended on the attitude of the dissident Conservative, and that was not clear on the Friday, so the Chief Executive of the Council, Mr Bryant, told Mr Johnson to telephone the group leaders and tell that them that the apportionment details would not be available on that day. When Mr Johnson telephoned the Appellant she was cross because she had arranged a Labour group meeting for that evening. There is an issue about what was said. It is not suggested that she swore or used bad language, but she upset Mr Johnson, who went to see the Chief Executive, and was subsequently off work for three weeks. That absence, according to a medical report dated 16^th September 1999 was "a result of stress consequent upon exceptional pressures at work." For present purposes it is unnecessary to decide what if any link there was between the telephone conversation on the Friday evening and Mr Johnson's subsequent period of absence from work, but the situation was clearly one which required action on the part of the Chief Executive.
3. On Monday 10^th May 1999 Mr Bryant, in response to a fax from the Appellant demanding the allocation figures, expressed his concern at the Appellant's conduct towards Mr Johnson saying that it was "totally unacceptable and in breach of the National Code of Conduct". Mr Bryant said that he was not prepared to tolerate such action in the future, and continued -

"This officer is now on sick leave suffering from stress which I believe can be attributed to your remarks on the telephone to him on Friday. Any further outburst to any member of staff will result in me making a formal complaint to the Council's Standards Committee about your conduct. I expect a full written apology from you to Mr Johnson since, clearly, he was only attempting to do his job."

The fax then dealt with the allocation issue. The Appellant did not apologise, and the only explanation for her silence we have seen is in the witness statement of her solicitor where it is said that she was seeking advice as to her position from the Labour Party. Whilst I recognise the significance of her contention that on the Friday evening she had said nothing of which she need be ashamed, and the fact that without hearing from her Mr Bryant had accepted in full the version of events given by Mr Johnson, it seems to me surprising that she did not at least make the effort to say that if Mr Johnson was upset by anything she had said she was sorry. Had she done so events would probably have taken a different course, and this interesting but expensive and in my judgment wholly unnecessary litigation would have been avoided. Sadly that was not the only missed opportunity in this sorry tale.

4. On Wednesday 12^th May 1999 Mr Bryant again pressed for a written apology for Mr Johnson, saying that if he did not receive it by the end of the week he intended to take the matter further and if necessary refer it to the new Standards Committee. The Appellant still did not respond. On 18^th May 1999 Mr Bryant received a memo from Mr Horspole, Branch Secretary of Unison in Broadland, raising the problem of "the undue pressure some councillors are placing on staff in the workplace". The memo continued -

"It is becoming increasingly common to hear of incidents of Councillors taking on the self appointed role of criticising members of staff. These incidents involve councillors making derogative remarks to staff, often in front of colleagues, and seeking to undermine the authority of senior managers by expressing disparaging remarks about them to junior members of staff."

The memo went on to point out how difficult it was for staff to respond, and asked Mr Bryant "as Head of Paid Service to investigate this matter and to take appropriate action." He was invited to remind councillors of the Harassment Policy adopted by the Council. The memo made it clear that only "a very small minority of councillors" were the subject matter of complaint, and they were not identified. According to Mr Bryant the memo was preceded by a telephone call from Mr Horspole, but for present purposes I need not refer to the alleged content of that telephone call.

5. On 21^st May 1999 Mr Bryant wrote to the Appellant pointing out that he had received no response to his requests for an apology to Mr Johnson. His letter continued -

"Further, I have had other reports that you have made derogatory remarks about other members of staff to their sub-ordinates. I have now received a letter from Unison in Broadland about the conduct of Councillors towards members of staff. I intend to carry out an investigation and report accordingly to the Standards Committee.

Today, I have issued an instruction to all staff that, for their own protection, they are not to have any dealings with you. If you require any information, I request that you contact Mr Bland, Mr Kirby, or myself, in writing, and we will ensure that any response is dealt with by the appropriate person in the organisation. With regard to the inspection of planning files relating to your duty as a Councillor, please make an appointment, in advance, in order that arrangements can be made for you to view the files.

You are not permitted to enter this building, or the Training Centre, other than to attend Council meetings and you are requested to report to the Main Reception on each occasion. I will be recommending to the Standards Committee that these arrangements are ratified unless the Committee is prepared to consider alternative sanctions against you.

As Head of Paid Service, I am not prepared to tolerate any improper behaviour by Members towards Council staff and I have instituted the above actions to prevent any further harassment to individuals."

That letter did produce a response. On 22^nd May 1999 the Appellant, by fax, said that the allegations were without foundation, that she would welcome an independent investigation, that she was taking legal advice, and that Mr Bryant would be hearing from her solicitors shortly.

6. The Appellant's solicitors' response was by letter dated 10^th June 1999. It denied impropriety, complained of Mr Bryant's conduct, and sought a withdrawal of the instructions to staff given by Mr Bryant and reflected in his letter of 21^st May 1999. It also asked that any allegation of breach of the National Code of Local Government Conduct "be independently investigated by an appropriately qualified and experienced person nominated by the Local Government Association; such investigation to be conducted in accordance with the procedures provided by the Improvement and Development Agency (LGMB) and/or ACAS and with the rules of Natural Justice." The letter made further requirements as to how the report of such an investigation should be handled, and threatened further action.

Mr Bryant acknowledged the letter of 10^th June, saying that he would seek advice from the Council's solicitors. Whether the form of investigation proposed in the letter of 10^th June would have been a practical way of proceeding I do not know, but it does seem to have focused on the propriety of the conduct of the Councillor without any reference to the alleged affect of that conduct on the Council's employees. In addition to acknowledging the letter of 10^th June Mr Bryant instructed Mr Fennell, the Council's Personnel and Central Services Manager, to prepare statements and a report for onward transmission to the Standards Committee, and set out his perspective of the history of the matter to date in a report dated 16^th June. Mr Fennell obtained statements from Trevor Johnson, Martin Thrower and Jennifer Harman, all three statements being signed on 13^th July 1999. He also obtained a medical report on Mr Johnson to which I have already referred, and his own report was prepared for the meeting of the Standards Committee which took place eventually on 9^th November 1999.

Standards Committee, Code and Harassment Policy

7. At this stage I must interrupt the narrative to say a word about the Standards Committee, the National Code and the Harassment Policy. The Standards Committee had come into existence in February 1999 with power to recommend -

Appropriate action to be taken by Council following investigations into allegations of misconduct by Councillors.

Any action arising from reports by the Local Government Ombudsman and other external investigators."

Clearly its remit envisaged that in the event of there being an allegation of misconduct by a councillor some form of investigation would be made before the matter was placed before the Standards Committee, but it could only recommend action to be taken by the Council. It could not itself take any other action, and by mid 1999 it had no established procedure. Broadland District Council was not alone in establishing a Standards Committee. Other local authorities had taken similar action in response to the third report of the Committee on Standards in Public Life (the Nolan Committee) Command 3702-1. That action had been taken in advance of legislation now contained in the Local Government Act 2000.

8. The National Code of Local Government Conduct, issued by the Secretary of State for the Environment under the provisions of the Local Government and Housing Act 1989 came into operation in 1990 as a guide for all members of councils and their committees and sub-committees. All councillors were required on accepting office to declare that they would be guided by the Code. It was concerned with matters such as conflict of interests, and relations between councillors and local government officers. In particular paragraph 6.2 of the Code stated that "mutual respect between councillors and officers is essential to good local government."
9. The Broadland District Council's Policy on Harassment at Work I can deal with briefly because it included a procedure similar to the council's grievance procedure, and in relation to the matters with which we are concerned that procedure, although threatened, was never invoked.

Continuing the Narrative

10. On 21^st June 1999 the Council's solicitors responded fully to the Appellant's solicitors' letter of 10^th June 1999. That response referred in paragraph 5 to Mr Fennell's investigation, and continued -

"Once the investigation is complete and a report has been prepared, it will be made available to your client. If it demonstrates a prima facie case of inappropriate behaviour towards an officer on behalf of your client then the matter will be referred to the Standards Committee for consideration. This will ensure that your client is treated in accordance with natural justice."

The letter goes on to indicate that "to protect individuals while the investigation continues" measures set out in the Chief Executive's letter of 21^st May will remain in place, and, in paragraph 8, the letter reiterates the suggestion that a letter from the Appellant to Mr Johnson might be appropriate. In paragraph 10 the letter says -

"Without prejudice to the importance of proceeding properly as set out above, we confirm that if your client considers it would be helpful to have a round table discussion, with or without the attendance of lawyers, then the Chief Executive would be pleased to arrange and attend."

Plainly, as it seems to me, even if (as indicated by later events) the actions of the Chief Executive thus far had been somewhat high handed and had gone too far that proposal suggesting a round table discussion called for a positive response which, so far as I am aware, it did not receive. Instead of sensible conciliation, unnecessary confrontation became the order of the day.

11. The original intention of Mr Bryant seems to have been to bring the matter before the Standards Committee at the end of July, but the Council's Solicitors advised that it would be more appropriate for the Standards Committee to be given delegated authority to deal with detailed confidential investigations, so at the full Council meeting on 27^th July 1999 the Standards Committee's powers were enlarged. That committee was given "power to resolve: to take appropriate action following investigations into allegations of misconduct by councillors."
12. In a letter dated 4^th August 1999 the Council's solicitors advised the Appellant's solicitors that Mr Fennell's report "has now been completed". A copy was promised "very soon" and the possibility of an agreed date for a meeting of the Standards Committee in September was explored. But the Standards Committee had still not settled the procedure to be adopted, so when it met on 2^nd September 1999 Mr Bryant's written draft as to the procedure to be adopted was discussed. That meeting was adjourned to 28^th September, when the procedure, with "minor clarifications" was adopted. Mr Fennell's report was supplied to the Appellant's solicitors under cover of a letter dated 30^th September, and enquiries were made as to the possibility of hearing dates before the Standards Committee in November 1999.
13. I need not deal with the report in detail. Two of those interviewed did not provide written statements, one because he/she had not personally experienced any improper behaviour by the Appellant, and the other because "although such behaviour was identified" he/she did not wish to become involved in the investigation. The report did exhibit the Chief Executive's report of 16^th June, the statements signed by Trevor Johnson, Martin Thrower and Jennifer Harman on 13^th July, the National Code and the Council's own policy on Harassment at Work. In paragraph 3.2 the report indicated that individuals were concerned that if they attended a hearing in person to present their evidence that might have an adverse effect on future working relationships and, because of the content of the medical report, there was also concern about the effect of giving evidence on Mr Johnson's health, so paragraph 3.2 concluded -

"It is not therefore proposed to request (with the exception of the Chief Executive) the attendance of staff as witnesses."

In paragraph 3.3 there was a qualified warning -

"The Committee should recognise that the weight which can properly be given to disputed evidence contained in witness statements, in respect of which there has been no opportunity to question those witnesses, may be reduced unless, for example, that evidence is also given or corroborated by other witnesses who attend and are questioned. However, the Personnel and Central Services Manager has no reason to doubt the accuracy and completeness of the witness statements provided."

14. The conclusion in paragraph 5.1 of the report was -

"The allegations identified during this investigation amount to prima facie evidence of possible breaches of the National Code of Local Government Conduct, and the Council's own Harassment at Work policy."

15. The recommendation, in paragraph 6.1 of the report, was that the Standards Committee -

"Consider the contents of this report, together with any representations from Councillor Mrs Lashley, and to take appropriate action (if any). Such action should be within the legal powers of the Committee and, proportionate to the seriousness of the conclusions reached. One action available to the Committee would be the continuation of some or all of the Chief Executive's current restrictions, subject to a review after a fixed period of time."

16. On 5^th October 1999 the Appellant's solicitor's responded to the report requiring the personal attendance of all witnesses (i.e. those from whom statements had been obtained) and saying that if they were not prepared to attend objection was taken to their statements being included in the circulated report.

First application for judicial review

17. On 15^th October 1999 the Appellant's solicitors wrote a letter before action to Mr Bryant challenging the continuation of the restrictions imposed by him on 21^st May. They also asserted that the "proposed disciplinary proceedings" before the Standards Committee represented an abuse of power and were unlawful, and threatened to seek declaratory relief and/or an order of prohibition in proceedings for judicial review. Regrettably the tone of the letter was aggressive, and it was unlikely to encourage compromise. The writer even called into question the good faith of the Chief Executive in the actions he had taken. Maybe the writer had access to information not before us. If not the suggestion of bad faith was grossly improper and should never have been made.

On 9^th November the Standards Committee met, and the Appellant, who had legal representatives, challenged the legality of the restrictions imposed on 21^st May. She also questioned the status, powers and procedure of the Committee. On her behalf it was submitted that "it was appropriate to infer the motive behind the proceedings was tainted by bad faith". As to that I need not repeat what I have already said.

18. The Standards Committee adjourned to 6^th December 1999 in order to take legal advice on the points raised on behalf of the Appellant.

On 16^th November 1999 the Appellant commenced proceedings for judicial review in which she challenged the lawfulness of the restrictions imposed on 21^st May. Those restrictions were lifted on the following day, and on 18^th November 1999 Hidden J, sitting in the Crown Office List gave leave to discontinue the proceedings for judicial review, and made an order for costs in favour of the Appellant, hence my earlier comment as to the actions of the Chief Executive having gone too far. The formal order records -

"(1) The Respondents asserting their contention that the First Respondent's Standards Committee may, upon disposal of the item numbered 7 ("Allegation of improper behaviour by a Member") in its agenda of 9^th November 1999, take appropriate actions." and -

The Respondents undertaking to lift permanently the restrictions upon the Applicant's freedom to communicate with Council Officers and to enter Council premises set out in the Second Respondent's letter of the 21^st May 1999."

Clearly, as a matter of construction, the assertion at (1) has to be read subject to the undertaking at (2) both appearing in consecutive paragraphs in the same document.

The meeting of 6^th December 1999

19. By a letter dated 24^th November the Council's solicitors gave notice to the Appellant's solicitors that on 6^th December 1999 the Standards Committee would not only conclude the business begun on 9^th November, it would go on to consider the allegation of improper behaviour by a member. Unfortunately that notification was initially misunderstood, and the Appellant's solicitors, in a letter of 3^rd December, indicated that the Appellant wished to be presented by counsel and solicitor at the substantive hearing, but that such representation could not now be arranged.
20. On 6^th December 1999 the Appellant attended in person with a note taker from her solicitors. She submitted a written statement which referred to her belief that the meeting on 6^th December would be solely to deal with the business left unfinished on 9^th November, but did not ask for an adjournment. Her statement continued -

"I refute all allegations made against me entirely. I want to have them heard in a proper forum and when that is resolved these matters can be heard.

You will recall that in the meeting on 9^th November Gavin Miller stated that we would not participate in the proposed hearing but that he and the others in our legal team would remain present as observers. On clear legal advice this position has not changed. Should you proceed, we will be taking the appropriate actions already advised, namely judicial review."

21. At the meeting on 6^th December a proposal to adjourn was defeated, and the Committee agreed -

By a majority, that Mrs Lashley's conduct on or about May 1999 fell short of the highest standards expected of councillors: and

Unanimously - that no further action be taken in this case.

22. Mr Bryant then issued a press statement, and the matter received some media coverage in the Local Government Chronicle.

These proceedings

23. These proceedings were commenced on 21^st December 1999. Two declarations were sought, namely -

As at 6^th December 1999 the Standards Committee was not discharging a statutory function of BDC within the meaning of Section 101 of the Local Government Act 1972 and was not therefore a lawfully constituted committee of the Council and/or;

There was procedural impropriety in the making of the said decision;

In consequence of which the said decision was null and void.

There was also an application for an order of certiorari.

24. At page 59 (page 13 of the transcript) Munby J set out the two issues for decision as follows -

Whether, in the light of Sections 101 and 111 of the 1972 Act, the proceedings against the Applicant before the Committee were ultra vires. Without at this stage seeking to anticipate the arguments in full this involves the question of whether the Committee, in relation to the proceedings involving the Applicant, was discharging a statutory "function" of the Council.

Whether the conduct of those proceedings was unlawfully unfair.

Having examined the authorities the Judge detected no disagreement between counsel as to the principles, the disagreement being as to how the principles were to be applied, and the Judge himself drew what he described as an important distinction between -

(a) A process which, whether carried out in private or public, involves one or more of the following: investigation (with or without formal hearings), findings (whether of fact, of breaches of the law, breaches of rules of professional conduct or codes of conduct, or of misconduct), attribution of blame and responsibility, criticism, censure or reprimand, and report, but which does not extend to the imposing of sanctions other than what is often colloquially referred to, and which for convenience I will also refer to, as "naming and shaming", and

(b) A process which, whether or not it includes some or all of these features, involves actions or sanctions extending beyond "naming and shaming"."

25. He noted that in fact on 6^th December 1999 the Standards Committee did not go beyond (a). He accepted counsel for the Appellant's submission that "the imposition by the Council on the Applicant of restrictions such as those which Mr Bryant purported to impose would have been ultra vires the Council." As the Judge said at 81D, in the present case the investigation by the Committee did not result in any further action so "the issue as to what, if anything, beyond "naming and shaming" may comprise "appropriate action" within the meaning of the Committee's standing orders is academic." Mr Baker, for the Council, submitted that although the action which can be taken by a local authority in respect of misconduct by individual councillors may be limited, it can act in certain ways which he defined, and the Judge accepted part of that submission.
26. Four allegations of unfairness were pursued before the Judge, namely -

An allegation of bias,

A complaint that charges should have been formulated,

The claim that there should have been a right to cross-examine witnesses, and

A complaint that the sanctions available to the Committee should have been identified in advance.

He rejected all four allegations, and concluded thus -

"Standing back, and looking at the matter in the round, I asked myself the question whether, having regard to the fact that these were proceedings of a disciplinary nature conducted before a body whose powers were, as I have held, limited in practical terms to "naming and shaming" the Applicant had a fair hearing, that is, a hearing conducted fairly before a fair and impartial body. In my judgment she did."

Grounds of Appeal: ultra vires

27. Mr Miller contends that the Judge, having correctly identified the ultra vires issue, failed to resolve it as he should have done. The proceedings which the Standards Committee embarked upon on 6^th December 1999 were, Mr Miller submits, irredeemably tainted in three respects -

They were in reality disciplinary proceedings against a councillor:

They were proceedings to enforce a Code which the Council had no power to enforce, and

They were proceedings with a view to take action such as that taken by Mr Bryant on 21^st May, and such action, it is now common ground, would have been ultra vires.

28. Mr Miller specifically did not take any point in relation to the Standards Committee's decision on 6^th December not to adjourn.

Mr Miller recognises, as he must, that if a local government officer complains to his senior officer about the way in which he has been treated by a councillor the complaint has to be investigated. Ordinary principles of good management so require, and such an investigation is plainly a function which a local authority is entitled to carry out pursuant to its statutory powers as set out in the 1972 Act. In reality it makes sense for the investigating officer to report to a committee, such as the Standards Committee which can then consider what action to take. So far as the councillor is concerned, the Committee's powers are restricted, but they are not non-existent. In extreme cases it can report matters to the police or to the auditors. In less extreme cases it may recommend to the Council removal of a councillor from a committee, or simply state its findings and perhaps offer advice. On the other side of the equation, the committee can dismiss the complaint or, for example, suggest changes to working practices to prevent such problems arising in the future.

29. Mr Miller submits that the Judge failed to consider what was the activity upon which the Standards Committee was engaged on 6^th December 1999. In support of his submission that it is the activity which matters he invited our attention to the decision of Glidewell J in R v. GLC and ILEA ex parte Westminster City Council, 19^th December 1984, unreported, and the decision of this Court in Moffat v. Eden District Council, 8^th November 1988, unreported. The leading case in this area is, of course, the decision of the House of Lords in Hazell v. Hammersmith and Fulham District Council [1992] 2 AC1 (the Swaps case) which we were invited to consider, and our attention was also invited to R v. Portsmouth City Council ex parte Gregory [1990] 89 LGR 478 and Allsop v. North Tyneside MBC [1991] LGR 462 but, as the Judge said in the Court below, this case is not really concerned with the establishment of legal principles. They are established. If Mr Miller is right in his submission that the Judge should have categorised the activity being undertaken on 6^th December 1999 as disciplinary proceedings in relation to a councillor to enforce a code which the committee had no power to enforce, with a view to imposing a penalty it had no power to impose, then Mr Miller may well be entitled to some form of declaratory or other relief. The Judge's answer to the submission now forcefully deployed is to be found at page 74F of the judgment, where he says -

"Mr Miller asserts that the activity of the Committee was not linked to any particular function or functions of the Council. I disagree. As Mr Baker correctly submitted, the activity of the Committee was in my judgment linked to, that is to say it was calculated to facilitate and was conducive or incidental to, the Council's functions (I) of maintaining its administration and internal workings in a state of efficiency and (II) of maintaining and furthering the welfare of its employees."

In my judgment the Judge was right, and I would go further. Even if at the outset of the proceedings on 6^th December 1999 the Standards Committee mistakenly believed that it had power to re-impose the restrictions imposed by Mr Bryant on 21^st May (despite the terms of the order made on 18^th November 1999) the High Court in proceedings for judicial review is entitled and indeed bound to look at the matter as a whole, including the decision to take no further action. Given her decision not to participate, a proper evaluation by the Committee of its role and functions could not have led to a more favourable result so far as the Appellant was concerned, and accordingly there can be no good reason for the Court to intervene. I have considered whether the Appellant might be entitled to say that because she feared that the Standards Committee might misunderstand its powers she was entitled to take no part, and should not be at a disadvantage for having so decided, but that argument plainly cannot stand. Her proper course was to do what if anything she considered necessary in her best interests to assist the Committee to come to the correct conclusion, and then, if it exceeded its proper remit, to challenge its decision after the decision was made.

Unfairness

30. Mr Miller did not deploy orally his written submissions in relation to this aspect of the case. As to bias, the complaint is that the majority of the Standards Committee were members of other political groupings and that "majority party councillors would want to ensure a finding against A in order to defend the position of Mr Bryant who had made clear his hostility towards A and his wish for such finding, and/or by reason of party allegiance and/or personal hostility towards A." As the Judge said, the only evidence that the Standards Committee voted on party political lines is that the two labour members voted against the motion and it is a serious indictment of the integrity of councillors of other political parties if a Committee which reflects the constitution of the Council cannot be trusted to reach a proper decision in relation to a matter such as this. In my judgment the allegation of bias was rightly dismissed.

The next complaint is that the Appellant had no proper notice of the case she had to meet. It is suggested that she was entitled to "particularised disciplinary charges", but such charges would plainly have been inappropriate because she was not being charged with anything. Having seen Mr Fennell's report, and the documents annexed to it, it is clear from paragraph 14 of his statement that the Appellant's solicitor was in no doubt as to "the full extent of the criticism by Mr Johnson of Mrs Lashley's conduct." Plainly he knew, and thus she knew the case she had to meet.

As to the opportunity to cross-examine, Mr Miller accepts that the Council had no power to compel the attendance of witnesses for cross-examination, but he submits that "it was unfair to allow such damaging and unparticularised evidence to go before the SC when A had no chance to challenge the witness." As Mr Baker points out, the Committee was entitled to receive hearsay evidence, Mr Bryant and Mr Fennell were available for cross-examination, and Mr Fennell in his report gave a special warning as to the weight of the hearsay evidence. So the procedure adopted cannot be impugned.

Finally it is said that the Appellant needed to know in advance what the Committee might consider to be "appropriate action", so that she could decide how best to defend herself, but on the facts there is no substance in this point. The Fennell report had suggested "the continuation of some or all of the Chief Executive's current restrictions". That possibility ceased to exist as a result of the order made on 18^th November 1999. If any other action was to be taken which would have an adverse effect on the Appellant then no doubt, as the Judge said, it would have been dealt with as and when the situation arose.

Conclusion

31. A careful examination of the facts satisfies me that the Judge was right to reach the conclusion which he did, and I would therefore dismiss this appeal. It does not, as Mr Miller alleges in paragraph 2 of his skeleton argument, raise the issue of "whether a local authority has an implied power to conduct formal disciplinary proceedings and hearings against one of its members" or any other important issue, but it does illustrate what can happen if those involved in local government and their advisors do not behave sensibly when problems arise. The conclusion which I have reached in relation to the grounds of appeal makes it unnecessary for me to consider the issues raised in the Respondent's notice and I do not propose to do so.

LORD JUSTICE LAWS: I agree.

LORD JUSTICE RIX: I also agree.

Order: Appeal dismissed. The respondents recover their costs in the sum of £12,639.20, those costs to be paid by the unsuccessful appellant. Permission to appeal to the House of Lords refused.

(This order does not form part of approved judgment)