Decision
of the Upper Tribunal
(Administrative Appeals Chamber)
As the decision of the First-tier Tribunal (made on 4 June
2010 under reference LGS/2010/0491) involved the making of an error in point of
law, it is SET ASIDE under section 12(2)(a) and (b)(ii) of the Tribunals,
Courts and Enforcement Act 2007 and the decision is RE-MADE.
The decision is: Mr Myers was not, by virtue of the matters
alleged against him and considered by the First-tier Tribunal, in breach of his
authority’s Code of Conduct.
Reasons
for Decision
A.
The issue
1.
The issue in this case is whether Mr Frank Myers failed to comply with
paragraph 6(a) of his authority’s Code of Conduct.
B.
The Code of Conduct
2.
As a member and Vice Chairman of Walford Parish Council, Mr Myers was
required to comply with the Code of Conduct.
3.
Paragraph 2(1) lays down when a person must comply with the Code:
(1) Subject to
sub-paragraphs (2) and (3), you must comply with this Code whenever you-
(a) conduct
the business of your authority (which, in this Code, includes the business of
the office to which you are elected or appointed); or
(b) act,
claim to act or give the impression you are acting as a representative of your
authority;
and references to your official
capacity are construed accordingly.
4.
Paragraph 6(a) provides:
You-
(a) must
not use or attempt to use your position as a member improperly to confer on or
secure for yourself or any other person, an advantage or disadvantage; …
C.
What Mr Myers did
5.
Mr Myers and Mr Cole are both landowners and parish councillors in
Walford. Mr Myers was concerned at the use of land owned by Mr Cole and rented
to the water authority. It was used by the authority’s contractors, Laing
O’Rourke. On 7 April 2008, Mr Myers wrote to the Chairman and Chief Executive
of Laing O’Rourke on his personal notepaper, expressing concerns that the
company was ‘potentially committing various offences’ and that its actions
appeared ‘to contravene your own policies’ on corporate responsibility. Mr
Myers was entitled to express his views personally and as a councillor on
behalf of his constituents. No one could properly have taken exception to the
letter had it not been for two features. First, Mr Myers indicated below his
signature that he was Vice Chairman of the Parish Council. Second, he wrote in
the first person plural. Those factors have to be taken together and in the
context of the content of the letter.
D.
The complaint and appeal to the First-tier Tribunal
6.
Mr Cole complained that the letter was in breach of the Code of Conduct.
The Standards Committee investigated and decided that Mr Myers had failed to
comply with the Code. Its reasons seem incomplete. They clearly deal with
paragraph 2, explaining how Mr Myers gave the impression that he was acting as
a representative of the council. However, its reasons in respect of paragraph
6(a) do not directly relate to the terms of that provision in that they do not
identify the advantage or disadvantage involved. By way of penalty, the
Committee decided that Mr Myers should attend a training course and write an
approved letter of apology. On appeal, the First-tier Tribunal confirmed the
decisions on both breach and penalty.
E.
Why I gave permission to appeal to the Upper Tribunal
7.
Mr Myers applied for permission to appeal to the Upper Tribunal. His
application was considered before me at an oral hearing on 16 December 2010. By
that stage, the Committee had agreed with a direction by Upper Tribunal Judge
Ward that there are two rights of appeal against the First-tier Tribunal’s
decision:
·
First, there is an appeal on ‘any point of law arising from a
decision’ under section 11(1) of the Tribunals, Courts and Enforcement Act
2007.
·
Second, there is an appeal on any other point under section
78B(4) of the Local Government Act 2000.
It was accepted that the second right of appeal has to be
applied in accordance with the decision of the Court of Appeal in Subesh v
Secretary of State for the Home Department [2004] EWCA Civ 56.
8.
I was, therefore, able to consider whether to give permission on any
point of fact or law. I gave permission at the hearing on these reasons:
3. The First-tier Tribunal
considered whether Mr Myers had used his position in order to confer or secure
an advantage or disadvantage. It is clear from paragraph 15 of the tribunal’s
reasons that it did not consider whether he had merely attempted to do so. It
is clear from paragraph 19 that the tribunal found only that he had conferred a
disadvantage on Councillor Cole. It is clear from paragraph 12 that that
disadvantage was not financial.
4. The case relates to
three letters written by Mr Myers. He says he did so as a parish councillor.
The Committee says he did so in his capacity as Vice-Chairman and showed that
he did so both by the use of his title and by the terms in which he wrote the
letter. The key issues that concern me relate to the effect that these letters
are said to have had. I pose my questions on the assumption that Mr Myers did
in his letters purport to act for the Council.
5. What is the degree of
contribution that the letters need to have had on Laing for the purposes of
paragraph 6(a)? There is a spectrum of possibilities from being the sole cause
of Laing leaving the site to being merely supportive of a decision taken
entirely on other grounds. Where does paragraph 6(a) sit on the spectrum? In
other areas of law, words such as effective cause, operative cause and
predominant cause are used. Is one of those appropriate or is a different
formulation needed?
6. What disadvantage did
the Coles suffer if it was not financial? I cannot see what benefit they gained
from the arrangement other than financial. Was there any evidence basis for
finding any other benefit? Was there a disadvantage in complying with the
certificate of use? Did the evidence before the tribunal justify it in drawing
the inferences that it did about the effect of Mr Myers’ letters?
F.
The position of the parties
9.
I gave case management directions for the Committee to respond by
31January 2011 and for Mr Myers to reply by 28 February 2011. After obtaining
an extension of time, the Committee wrote to say that it would be
disproportionate use of public funds to take any further part in the
proceedings given the impending abolition the Committee system for regulating
the conduct of local authority councillors.
G.
Analysis of the tribunal’s reasoning
10.
I am conscious that this case was considered by a First-tier Tribunal
whose panel included two members with particular knowledge and experience of
local authorities. That has affected the way that I have approached the case.
11.
The tribunal found that Mr Myers’ letter had created the impression that
he was acting on behalf of the parish council. I accept that analysis. I do not
say that Mr Myers deliberately set out to create that impression, but he was at
least naïve (as a relative newly elected councillor) to make use of his title
as Vice Chairman.
12.
On paragraph 6(a), the tribunal found that the evidence did not show Mr
Cole suffered any financial disadvantage, but directed itself that a
disadvantage could take other forms. It was correct on both those points. As to
the effect of the letter on Mr Cole, that was a matter of causation and
probability. Mr Cole lost the agreement and the income from it, but what
contribution did Mr Myers make to that loss? A large public company would know
the remit of the parish council and would have access to its own legal advice.
It might be concerned as a responsible company that the villagers were
inconvenienced by its activities, but it would not be influenced to any
significant extent by the involvement of the parish council or of its Vice
Chairman. Indeed, a representative of the company visited to see for himself
how the use of the site was impacting on the village. As to the form that an
advantage might take, the tribunal’s direction on law was clear beyond scope
for argument. Neither the language nor the rationale of the provision would
justify limiting paragraph 6(a) to financial advantages and disadvantages.
13.
What the tribunal did not do was to identify any disadvantage that Mr
Cole had suffered apart from a financial one. Given the nature of the use to
which his land was put, I cannot see what other sort of disadvantage Mr Cole
might have suffered from the termination of the agreement. I have not been
shown any evidence of one. Mr Cole only said that the impact was financial. In
that context, the tribunal’s statement that any form of disadvantage would
suffice is inadequate to show how paragraph 6(a) was satisfied. Accordingly, the evidence did not allow it to find that Mr
Cole has suffered a disadvantage.
H.
Disposal
14.
My analysis shows that the tribunal went wrong in both fact and law by
finding that Mr Myers had used his position to confer a disadvantage on Mr
Cole. It was not entitled to make that finding. How, then, should I dispose of
the case? I could remit the case for a rehearing before the First-tier Tribunal
or re-make the tribunal’s decision. In view of the nature of the allegation
against Mr Myers, I consider that it is appropriate for me to re-make the
decision.
15.
I cannot find that Mr Myers conferred any disadvantage on Mr Cole. I
have already explained why.
16.
Nor can I find that he conferred a benefit on himself or his fellow
villagers. The effect of Mr Myers’ letter on the actions of Laing O’Rourke is,
as I have said, a matter of causation and probability. I have explained why the
tribunal was right to find that the letter did not confer a financial
disadvantage on Mr Cole. For the same reasons, I cannot find that it conferred
a benefit on Mr Myers or anyone else.
17.
That leaves the issue whether or not Mr Myers attempted to confer an
advantage or disadvantage. This possibility was not considered by either the
Committee or the First-tier Tribunal. It has never been investigated and I
must, therefore, be hesitant in making any finding adverse to Mr Myers. The
tribunal found that he had created the impression of acting for the Council,
but that is not the same thing as attempting to do so. It is an objective
analysis of the effects of his actions, not a subjective finding of his
intentions. He certainly wanted Laing O’Rourke to move from the site and he
acted with that in mind and in view. But the evidence does not allow me to find
that he attempted to use his position to achieve that. At the most, I can only
find that he was naïve in adding his office to the letter and that is not
enough.
18.
Accordingly, I must find that Mr Myers was not in breach of paragraph
6(a) as alleged against him.
|
Signed on original
on 25 March 2011
|
Edward Jacobs
Upper Tribunal Judge
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