High Court rejects Councillor’s unfairness challenge to sexual harassment finding as “unarguable”
Local Government, Public Law and Judicial Review
Following a renewed permission hearing in the High Court on Tuesday 15 January, former Devon County Council leader, Cllr Brian Greenslade, has again been refused permission to challenge a finding that he sexually harassed several members of staff over a period of years notwithstanding he was not allowed to appear before the Council’s Standards Committee that made that adjudication.
Background
An anonymous complaint to the Council’s Chief Executive in November 2017 led to the Council commencing a formal investigation into allegations that Cllr Brian Greenslade – who led the Council for 16 years – had sexually harassed four employees of the Council.
The Council instructed a QC to carry out the investigation, who concluded that the allegations were true.
At a meeting of the Council’s Standards Committee in July 2018, the Committee accepted the investigator’s findings and imposed several sanctions on Cllr Greenslade. The sanctions included restrictions on Cllr Greenslade’s access to Council premises: he was permitted unrestricted access to the Members’ Room, the Ante Chamber and the Council Chamber, but was only permitted to visit any other premises provided he gave advance notice and was accompanied by a Council officer.
In October 2018, Cllr Greenslade issued a claim for judicial review of the Council’s decision. He raised at least ten grounds of challenge. The grounds were wide-ranging, but focussed on the fairness of the decision-making procedure, and argued that Cllr Greenslade had been denied a fair hearing in breach of Article 6 of the European Convention on Human Rights and at common law.
In November 2018, Mrs Justice Andrews initially refused permission on nine out of the ten grounds, which included all of the unfairness allegations, and declared one to be totally without merit.
The one, narrow ground given permission was whether the Council had the legal power to exclude the councillor from its premises – but, the Judge observed, if it did have power, the Council’s decision was “plainly” proportionate to the seriousness of his misconduct.
Cllr Greenslade sought to renew his application for permission to proceed to judicial review at an oral hearing. However, Mrs Justice Jefford robustly rejected that application, refusing permission on all of the remaining grounds and upholding the earlier award of costs in the Council’s favour.
Comment
The case underlines the freedom allowed to local authorities under the Localism Act 2011 in regulating their own procedures for dealing with complaints against elected members.
In Devon’s case, their complaints procedure provided for anonymity of the complainants and did not allow for an oral hearing before the Standards Committee. The court held that, when assessed overall, that procedure was not unfair – Councillor Greenslade had the opportunity to answer the complaints in person before an independent QC, and to provide comments on his draft report, as well as being able to make written submissions to the Standards Committee.
The context in which fairness was to be judged importantly comprised both the changes wrought by the Localism Act 2011 and the particular procedures adopted thereunder – to which there had been no direct challenge.
It is also noteworthy that Mrs Justice Andrews appeared to accept the Council’s argument that Article 6 ECHR does not apply to local government standards matters, which are essentially disciplinary in character.
James Findlay QC and Matt Lewin represented Devon County Council, instructed by Trevor Griffiths at Sharpe Pritchard LLP.
