Chegwyn, R (on the application of) v Standards Board for England [2010] EWHC 471 (Admin) (15 February 2010)

Neutral Citation Number: [2010] EWHC 471 (Admin) Case No. C0/8132/2009 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION THE ADMINISTRATIVE COURT Royal Courts of Justice Strand London WC2A 2LL 15th February 2010 B e f o r e : MR JUSTICE COLLINS ____________________ Between: THE QUEEN ON THE APPLICATION OF CHEGWYN Claimant v STANDARDS BOARD FOR ENGLAND Defendant ____________________ Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court) ____________________ MR LOFTHOUSE appeared on behalf of the Claimant MISS WARD appeared on behalf of the Defendant ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE COLLINS: This is an appeal pursuant to section 78B(4) of the Local Government Act 2000 against a decision of a Case Tribunal of the Adjudication Panel for England, which decided to disqualify the appellant from being a councillor or becoming a councillor in any authority for a period of two years commencing on 6 July 2009. In fact the disqualification was suspended on 29 July so he has served just over three weeks of that disqualification, and if this appeal is dismissed the balance of the disqualification will have to be served from today. The appellant accepted that he had breached the code of conduct or one of the relevant paragraphs of the code of conduct alleged against him, so the hearing before the Tribunal was limited to the appropriate sanction which should be imposed. The appellant had had an interview, as is normal practice, with a representative of the ethical standards officer and had given his explanation for the breaches which were alleged against him. He was represented by counsel, Mr Lofthouse, who has appeared for him before me, when he appeared before the Tribunal. Accordingly the crucial issue was in effect a decision upon his culpability in the breaches that were admitted. It is not necessary, I think, to go into great detail as far as the facts are concerned. The appellant has a great interest in live music concerts and has organised over a period of some years such concerts, I gather they are folk music concerts, in various places within the county of Hampshire. He is a councillor both in Hampshire County Council and in the Gosport Borough Council. In 2008 he decided that it would be a good idea to hold one of these concerts in the area of Gosport. He had held, the year before I think, one of them at a site in Wycombe, but that had for various reasons proved to have some unsatisfactory elements. There was, in his view, a site which would be ideal in Gosport. He appreciated that as a member of Gosport Council he would have to negotiate with the council at arm's length and take care not to misuse his position as councillor in order to achieve the licences necessary to enable such a concert to be held. I call it a concert, I think what it was in fact described as was a festival. It perhaps makes little difference. The first step was to apply to the council to approve the carrying on of the festival at the site in question, and this was done in February 2008. For various reasons into which I do not think it is it is necessary to go the decision was made at an extraordinary meeting of the relevant committee. There was nothing done by Mr Chegwyn which was wrong or which achieved that to his benefit, that was simply the way it was decided the matter should be dealt with, and it was a perfectly proper way for it to be done at the time. An important issue was the amount of money that would be required up front, as it were, as a guarantee for the council, and indeed a payment to the council for agreeing to provide a licence for the site. The sum which was suggested by the officers was not the sum put forward by the appellant specifically. It was £5,000. On that basis the venue was agreed. The next step necessary was to obtain a licence to enable intoxicating liquor among other things to be sold on the site, as I understand it. In due course an application was made for that and it was granted, again by a committee; there was no decision made by or put to the full council. It is important to note that there was objection by people to the holding of a festival on the site. There were a number of local objectors. Whether they could be pejoratively described as NIMBYs or otherwise is not perhaps the point. The point is that there was a relatively strong feeling in some quarters that this was not an appropriate site for the holding of such a festival. It seems, too, that there was a political element entered into, possibly as a result of personal animosity between Mr Chegwyn, who was, I am not sure the leader of, but certainly high up in the Liberal Democrats, who were then in control of the council, and the conservatives, whose leader was Mr Hook. It is perfectly clear from what has transpired since that Mr Hook and Mr Chegwyn did not seem to be enamoured in any way with each other. Some three weeks or so before the festival was to take place a motion was put before the council whose purpose appeared to be to stop the festival, by this time of course a considerable number of tickets had been sold, and no doubt the acts, if that is the right word, had been booked to perform at the site, and more importantly from Mr Chegwyn's point of view local businesses had invested money in taking up the opportunity to have sites at the festival. The manner in which Mr Chegwyn was dealing with the festival was through a company of which he was the sole director, called Wycombe Festivals Limited. The company was funded through the sale of the tickets. The total sum it was expected that the festival would cost was in the order of £270,000. I gather that in fact the festival made a loss in due course, although I do not have any information as to the precise extent of that loss. The important thing from Mr Chegwyn's point of view was that he said he stood neither to gain or lose personally, and as far as the company was concerned, although on paper it may be that it would come out of the matter with a debt if it did not at least break even, that was in reality not a true picture because it was commonplace in running these festivals that gains and losses would be offset against each other from year to year so that in due course he was not concerned that the company would suffer financially if it was decided even at such a late stage that the festival should not go ahead. That was his contention, and that is what he told the investigating officer, and he invited the officer to inspect the accounts of the company. Whether or not that is something which in the end was to be accepted would be a matter for the Tribunal, no doubt, to decide. As far as the ESO is concerned, she took the view, understandably, that the company certainly would have a clear financial involvement inasmuch as if the festival had to be abandoned because of what the council decided at the relevant meeting then at the very least the company's standing would be compromised, confidence in it would be reduced and there was a reality of a degree of financial embarrassment, for want of a better word, as a result of the decision, and that Mr Chegwyn ought clearly to have appreciated. That certainly was the view taken, and as I say a perfectly reasonable view from the point of view of the ESO. The question of whether that was a proper view was one to be determined having heard all the explanations and if necessary the evidence by the Tribunal in due course. The point is made that Mr Chegwyn did declare a personal and prejudicial interest, which is what this is all about, in the obtaining of the licence, but did not do that when it came to the meeting of the full council. There were in fact three motions before the council, two procedural and those procedural motions were required to enable the substantive matters to be discussed. In fact the first motion, one of the procedural ones, was defeated by one vote, and thus the merits of the substantive matters were not in the end dealt with. It was his conduct in failing to declare that personal and prejudicial interest and remaining speaking and voting which was said to be, and indeed he now accepts was a clear breach of the relevant paragraphs of the code of conduct. There is a slight degree of artificiality here because although he did not formally declare it, it must have been apparent to everyone that he had a personal interest because after all it was his application that was referred to in the motion, not the company's application, but his. The crucial question, really, was whether he ought to have left the chamber and taken no part in the decision making process. He took the view that notwithstanding that he had accepted in the licencing applications that he did have a prejudicial interest and therefore recused himself, as far as these proceedings were concerned he was of the view that the public and in particular the businesses would suffer if the council at that late stage changed its mind about agreeing to the festival taking place or imposed higher restrictions. That is important, because one of the matters that it turned out that Councillor Hook, who was behind the motion, had intended to put forward was a suggestion that £30,000 instead of £5,000 should be the appropriate payment for use of the site, but he did not tell Mr Chegwyn that that was what he proposed. Indeed Mr Chegwyn says, and there is no evidence to contradict this, that he did not know what those behind the motion had intended to suggest should be done. He said that he felt it was political and that he really was not particularly concerned about the overall result as far as he and the company were concerned, but as I have said his real concern was the damage to the local businesses and for the ticket holders who were expecting to come to the festival in a couple of weeks time. It was for that reason that he decided that it was not necessary for him to make the necessary declaration and exclude himself from the process of deciding upon the motions put before the council. He recognises now and indeed recognised before the matter came before the Tribunal, that that was a wrong decision. I described it in argument as at best a gross error of judgment, and that Mr Chegwyn accepts. His enthusiasm for the festival together with his concern, and no one has suggested that this was not a genuine concern for the local businesses in particular, was what he says largely motivated him at the time. The Tribunal has provided guidance as to the appropriate sanctions which can be imposed. The sanctions themselves that are permitted stem from section 78A of the Local Government Act 2000. This, as far as material, by sub-sections (4) and (5) provides: "(4) Where an English case tribunal decides that a person has failed to comply with the code of conduct of the relevant authority concerned, it may- (a) take in respect of him any action authorised by regulations made by the Secretary of State for the purposes of this sub-section, or (b) decide to take no action against him. (5) Regulations made under subsection (4) may in particular- (a) enable the tribunal to censure the person. (b) enable it to suspend, or partially suspend, the person from being a member or co-opted member of the authority concerned for a limited period. (c) enable it to disqualify the person, for a period not exceeding five years, for being or becoming (whether by election or otherwise) a member of that or any other relevant authority." "Relevant authority" is as one would expect,designed to cover broadly speaking all local authorities in England. The regulations made under the Act are the Case Tribunals (England) Regulations 2008 (Si 2008 No.2938 ). Regulation 3 sets out the sanctions available to case tribunals making decisions under section 78A(4). It is not necessary for me to read them all, they run from sub paragraphs (a) through to (k). (a) is censure; (b) is restriction of access to or use of resources of a council for a period; (c), (d), (g), (h), (i) and (j) deal with suspensions or partial suspensions and to extend that suspension to the authority concerned and to any other relevant authority; (e) is a written apology; (f) requirement of training and (k) is disqualification of the respondent for being or becoming whether by election or otherwise a member of the relevant authority concerned or any other relevant authority for a period not exceeding five years. I should say that any suspension is not permitted to be for more than 12 months or until the councillor would come up for reelection, the end of a particular period of membership of the council in question. So, if for example an election is due within six months then the suspension cannot exceed six months. The Tribunal, as I say, has issued guidance. The relevant guidance at the time with which we are concerned, namely the beginning of July 2009, was that of May 2009. The guidance sets out what it regards as mitigating and aggravating factors. They are not exhaustive, and examples of mitigating factors, paragraph 9, are as follows: "9.1 an honestly held (although mistaken) view that the action concerned did not constitute a failure to follow the provision of the Code of Conduct, particularly where such a view has been formed after taking appropriate advice. 9.2 a members' previous record of good service. 9.3 substantiated evidence that the member's actions have been affected by-ill health. 9.4 recognition that there has been a failure to follow the Code; cooperation in rectifying the effects of that failure; an apology to affected persons where that is appropriate, self-reporting of the breach by a member. 9.5 compliance with the Code since the events giving rise to the determination. 9.6 some actions, which may have involved a breach of the Code, may nevertheless have had some beneficial effect for the public." 10 gives examples, again not exhaustive, of aggravating factors, which are: "10.1 dishonesty. 10.2 continuing to deny the facts despite clear contrary evidence. 10.3 seeking unfairly to blame other people. 10.4 failure to heed appropriate advice or warnings or previous findings of a failure to follow the provisions of the code. 10.5 persisting with a pattern of behaviour which involves repeatedly failing to abide by the provisions of the code." The aggravating factors on the material before the tribunal did not exist. As far as the mitigating factors are concerned the claimant asserted that his view that the action concerned did not constitute a failure to follow the provisions of the Code of Conduct was an honestly held view. So the Tribunal should, if they decided that was not correct, have explained why they decided that his view was not an honestly held view. I will come to what they in fact said in a moment. Otherwise he had a record for a large number of years as councillor. Subject to one matter put before me today not before the tribunal there was no indication that it was other than a record of good service, and he had recognised his failure. He had cooperated and had apologised and there was no suggestion that he had done other than comply with the Code since the events in question. The guidance then goes on to indicate the approach that is appropriate for the various sanctions. It deals first with disqualification in paragraph 16, and this is said: "Disqualification is the most severe of the sanctions available to the Case Tribunal. This option is likely to be appropriate where: 16.1 the Respondent has deliberately sought personal gain (for either him or herself or some other person) at the public expense by exploiting his or her membership of the body subject to the Code of Conduct. 16.2 the Respondent has deliberately sought to misuse his or her position in order to disadvantage some other person. 16.3 the Respondent has deliberately failed to abide by the Code of Conduct, for example as a protest against the legislative scheme of which the Code forms part. Members of local authorities are expected to uphold the law. Where the Code has been deliberately breached to reflect the Respondent's opposition to the principles underlying the legislation, the Case Tribunal is likely to think of a disqualification of one year. 16.4 there have been repeated breaches of the Code of Conduct by the respondent. 16.5 the Respondent has misused power or public assets for political gain. 16.6 the Respondent has misused council property. 16.7 the Respondent has committed a criminal offence punishable by a sentence of three months or more imprisonment." It is apparent from what I have already said of the facts that certainly on the appellant's case and in the course of the interview that he gave to the investigating officer he denied that he had in any way obtained or had sought to obtain personal gain or gain to the company of which he was a director. It is difficult to see that the evidence supports a conclusion that he had deliberately sought such gain. Certainly short of that it is difficult to see how the sanction of disqualification and for a substantial of period of two years could be justified. It cannot be suggested, and I don't think it is suggested, that any of the other matters in 16.2 or 16.7 were established or could conceivably have been established. Thus, the crucial issue was surely what was his state of mind. Effectively, if, but only if, the Tribunal was prepared to reject his account and his explanation of what he had done and more importantly why he had done it, only then would the serious view taken have been justified. The only other matter I should refer to in going through the guidance is that in paragraph 24 under the heading 'suspension' this is said: "Whereas a disqualification will apply to membership of all authorities to which the Act applies, suspension will be limited to precluding the respondent from participating as a member of the authority whose Code has been found to be broken. If the facts giving rise to the breach of the Code are such as to render the Respondent entirely unfit for public office then disqualification rather than suspension is likely to be the more appropriate sanction." The level suggested is a high one, "entirely unfit for public office". It seems to me that the guidance, subject to a matter to which I will refer at the end of this judgment which deals with the question as to whether disqualification can be limited to the authority in which the conduct arose or has to extend to all authorities of which the individual is a member, but subject to that, the guidance makes it clear that disqualification is merited if, and again only if, the view is taken that the individual is unfit to act as a councillor as a result of what he has done, and thus should for a greater or lesser period be disqualified from so acting. I then turn to what the Tribunal had to say to justify its conclusion. It sets out the ESOs views. Subject to one matter there is no issue as far as that is concerned. The one matter is that in the course of his interview the appellant had said that his position in respect of the motion, that is the motion before the council which led to the breach, was one of a relatively unconcerned individual, with a lesser interest in the motion than anyone who had bought a ticket to attend the festival, or was a local business. The reference to local business was in the ESO's report, but was omitted in a later paragraph. The Tribunal equally omitted the reference to the local business, and Mr Lofthouse complains that that weakened the the way in which the appellant had put his case. However, the Tribunal must be assumed to have read the ESO's report and clearly had, and so was aware of what was in it which did include the reference to local businesses. However, what the Tribunal said as far as material was this in relation to personal interest: "4.3.3 The motion was intended to reconsider the decision to grant the Respondent permission in principle to hold a music festival. The Respondent was the main festival organiser, employee, sole director and owner of the company which organised and ran the Stokes Bay music festival. The respondent and his company handled and were responsible for all the finances relating to the festival and he was the person with whom the council was proposing to enter into a land licence agreement for the staging of the festival. According to the Respondent, at the time of the council meeting, the cost of staging the music festival was about £270,000. 4.3.4 The Respondent therefore had a personal interest in the motion. The motion under consideration affected the Respondent's employment and business and any decision in relation to the Stokes Bay music festival might reasonably be regarded as affecting his well-being or financial position to a greater extent than the majority of-other council tax payers, ratepayers or inhabitants of the electoral division or ward affected by the decision." Employment is perhaps putting it a little far, but it is true that the appellant had obtained legal advice, as he had indicated, that if the council decided to change its decision so that the festival was not able to go ahead or sought to require a greater sum than the £5,000, then they might well find themselves sued for breach of contract. The expenses were £270,000, and therefore there was a substantial amount at stake. It is suggested that that showed that his company had a financial interest in the matter. I suppose in one sense it did, in that it wanted the matter to go ahead and there was a substantial cost involved, but that is not necessarily the whole picture, because one then has to go on to consider the appellant's case, namely that actually it would not have been a disaster because music festivals do find themselves unable to go ahead quite frequently at a late stage. Those who buy tickets are well aware of this possibility. Other factors may create problems. I think that was particularly so last year, with some such festivals because of the foul weather we had, and although it had not stopped it going ahead, one has seen pictures of the conditions at Glastonbury over the years. As I said, it can happen. It is something which he says was recognised and will not be held against the organisers. Of course, the money can be returned, and that is why he says that he was relatively relaxed even if the outcome had been hostile. Nonetheless he did raise the issue of breach of contract and one can say that it may well have been that it was regarded as a useful argument in favour of persuading the council not to change its mind, so whether or not he indicated that there would indeed be a personal loss is another matter. It seems have been the belief behind this that Mr Chegwyn or his company would stand to make a gain out of a successful festival, and indeed seeing some of the material that was put about in subsequent elections by Mr Hook, that is indeed a nasty allegation that is made against Mr Chegwyn. How much did he make out of these festivals? It is suggested that he has acted dishonestly in failing to disclose his interests in the circumstances. That is why, as I say, the question as to his intentions, his state of mind, were, as it seems me, and should have been realised by the Tribunal to be crucial. The Tribunal referred to the submissions as to the actions to be taken in a total of four paragraphs. The suggestion by the ESO was that the appellant as he now is was more concerned about his personal interests and gave little if any consideration to the potential damage his conduct would cause to the reputation of the council, and it was a serious matter, and those who accept public office must accept there are minimum standards. The submissions made on behalf of the appellant are said to be that he stated he took his failure to comply very seriously and did not contest the breach. He accepted the ESOs findings. He issued a public apology to his electorate and stood down from various posts in the council. He announced his intention not to accept the chairmanship of any other principal board of the council for at least 12 months. It is said, somewhat sourly, that that offer did not mean a great deal because the Liberal Democrats by then had lost control of the council so his opportunity of having those offices was remote. As I say, again I don't think that was specifically put before the Tribunal; they certainly do not refer to it. Then in 5.3 they explain their decision. I am not going to read every paragraph, but the material points they make are at 5.3.1. They say: "[WP] took the view that this was an extremely serious case which went to the very heart of ethical framework within which local government must operate. The underlying principles behind the legislation are to encourage and impose certain minimum standards of behaviour in respect of local government councils. The Code of Conduct and general principles of conduct expected by elected members set out in the Relevant Authorities (General Principles) Order 2001 attempt to ensure that members of the public can have confidence in the probity of conduct of those who are elected to represent them and, in particular they will act in the public's interest rather than their own personal interest." It is of course accepted that this is a proper indication of the approach which should be taken, and what lies behind those parts of the Code of Conduct in particular. Of course, it is to be borne in mind that the appellant's case was that he was in his view acting in the public interest rather than in his own personal interest. That was, he said, his honestly held belief. He recognised he made an error but at the time that was what led him to do as he did. It was in those circumstances, as it seems me, important for the Tribunal to explain why they rejected that assertion by him and to indicate clearly, as I say, why they took a far more serious a view of what he had done. They go on to say that he took a deliberate decision not to declare the interest. He clearly did, in the sense that he deliberately did not declare it, because he says he did not think that he needed to. They go on it was also clear that he had a financial interest in relation to the commercial enterprise. As I have already said, in one sense the company did have a financial interest when one looks at the matter generally. On the other hand the question was not whether there was a financial interest as much as whether he stood to gain or to lose as a result of the decision which was in issue. They go on: "The case tribunal found that this was a blatant and deliberate disregard for the Code of Conduct which would undermine the confidence the members of the public had in the integrity of the council, particularly as this conduct came from somebody with such seniority and experience." Such a view could only be formed if they rejected the appellant's explanation for what he had done. They went on to say that they took into account his record of good service, his recognition of his failure and his standing down from various posts. They go on: "However, the Case Tribunal also took the view that these breaches were of such a serious nature in that the respondent had deliberately sought to misuses his position and had deliberately failed to abide by the Code, that, notwithstanding the Respondent's recent re-election to Hampshire County Council, it was considered that the most severe of sanctions, being disqualification was appropriate and proportionate here." Again, the conclusion that he had deliberately sought to abuse his position and deliberately failed to abide by the Code was crucial to the Tribunal's findings. Nowhere do they seek to explain why and on what basis they reject the case put forward by the appellant, based as it was on among other things the accounts of the company which he had offered to the ESO and the Tribunal. It was said on his behalf, and in my view there was considerable force in this, that there was really nothing to justify the finding that the Tribunal reached as to his culpability. That it was serious, that it was a clear error of judgment, that he ought at the very least to have taken some advice, particularly as in the course of the council meeting it was suggested by opponents that he clearly did have a prejudicial interest which ought to have resulted in his taking no part and the monitoring officer was present, is clear. Had he sought that advice it is clear what it would have been. Nonetheless, as I have said, on the material that has been produced it is difficult to see the justification for rejecting his account of why he acted as he did. If the Tribunal was minded to do so, it ought to have explained why it was taking that view. The Tribunal goes on to deal with another matter that was raised. As is already indicated, he was in fact reelected, and it happened with a larger majority as I understand it, to Hampshire County Council, he having stood against Mr Hook for the particular seat in question. This was a seat, which although I gather did include part of Gosport, did not include the part for which he was a member of the Borough Council. In the course of the campaign there was what frankly is singularly unedifying material produced on both sides. Mr Hook indicated in a leaflet that over recent years the Standards Board for England had investigated Mr Chegwyn and found him guilty of various matters. Apart from anything else, it seems that that was at that time entirely untrue because he had not been found guilty. There had been although it was not put before the Tribunal, a previous finding that he had breached the Code, but the circumstances were such that no further action was regarded as necessary and there was no suggestion at all that he had in any way acted in a way which obtained a financial advantage and he had never been found guilty of using his position improperly to secure a financial advantage for himself. That was in fact clearly defamatory. But he responded, I regret to say, in a rather similar vein, seeking to tar the Mr Hook with the brush of Conservative MPs who had obtained expenses for activities which were said to be activities which should not have attracted any claim for expenses. It is a matter which is, as we know, ongoing. So before the electorate were allegations and counter allegations about the probity of the individual candidates. The extent to which this may have influenced the electorate one way or the other is almost impossible to assess. Frankly, the basis upon which electors decide for one candidate against another is something into which certainly I would not wish to delve and not something anyone can properly know. However, the Tribunal refers to two decisions which are material. In sanders v Kingston Wilkie J stated that interfering with the will of the electorate is a very serious thing indeed, and suggested it would be rare in the extreme for sanctions to be imposed against a councillor who had been reelected in circumstances where the matters which had given rise to the reference to the Tribunal were before the electorate. The Sanders case involved observations made by the then Conservative leader of Peterborough Borough Council which offended troops in Northern Ireland, or relatives of troops in Northern Ireland. I need I not go into details. It was said he had said things which were entirely inappropriate and which reflected on the integrity and standing of the council. In fact he was dismissed by the Conservatives as leader of the council. He stood as an independent in the forthcoming election and was elected. The issue concerning what he said and what had led to the hearing against him was raised in the election. One can see the possibility in a case such as that of a strong argument that the electorate having concluded that they wanted him as a councillor notwithstanding what he said, where what he said was the issue which led to the hearing, then it would be inappropriate for the Tribunal to disqualify or indeed suspend him from being a member of that council. The situation here is somewhat different, as I have already indicated. In the mud slinging between the two candidates it is really quite impossible to say that the electorate had decided on the basis of this particular issue in any way, or expressly approved it. I accept entirely, it must I think be the position, that a re-election is a relevant consideration, but the circumstances will dictate the weight that should be attached to it. For reasons I have already indicated in the Sanders case one can see why considerable weight ought to be attached to the re-election. The situation is not the same here. It is to be noted in a subsequent case Mullaney v the Adjudication Panel 2009 EWHC 72 Charles J stated that the re-election of the respondent in that case was irrelevant because the court could not know what effect, if any, the issues which were the subject of the proceedings had on voters. It seems to me that is the situation which applies here, and certainly as far as weight to be attached to the re-election is concerned the Tribunal in my view was right not to attach any substantial weight to that matter. As I have said, in my judgment the Tribunal was clearly wrong in all the circumstances to decide that the appellant, on the material before it, had acted in a way which he knew was a breach or a blatant and deliberate disregard of the Code of Conduct and had sought to misuse his position so that he had placed his personal interests over the public interest. That is the basis upon which a decision to disqualify should be based, and in my judgment it was unreasonable of the Tribunal to find that he fell within any of the guidelines which indicate that disqualification was the appropriate penalty. One matter that the Tribunal did not take into account was the possibility of disqualifying from Gosport and not from Hampshire. The reason they did not consider that was because consistent with the guidance of paragraph 24 to which I have already referred -- incidentally a paragraph which is no longer contained in the updated guidance issued in July 2009, but after the hearing in question -- that disqualification has, by law, to encompass all authorities of which the individual is a member. That is said to be the view taken by those experts who are involved in this area and is a view which has been accepted, albeit no argument was put forward to the contrary, by at least two judges, namely Bennett J in Sloam v Standards Board for England [2005] EWHC 1234 reported in 2006 LGR 7 1, and R(Hathaway) v Ethical Standards Officer [2004] EWHC 1200 (Admin) , decision of Evans J. I have already referred to section 78A(4) of the 2000 Act, which at paragraph C enables the Tribunal to disqualify for a period not exceeding five years from being or becoming a member of that or any other relevant authority. If it had been intended that it should be all authorities, then one would have expected the paragraph to read a member of that and any other relevant authority. It seems to me that since 5B deals with suspension and is limited to the relevant authority concerned then C widens it by enabling the authority to disqualify from not only the authority concerned, but also any other relevant authority. Of course, the rationale behind that is that disqualification ought to be on the whole limited to cases where the view is taken that the individual is not fit to be a member of any council because of what he has done. No doubt in many cases it will be appropriate if the conduct reached the seriousness to justify the disqualification to disqualify from all of which he was a member. One then goes to the regulation, paragraph 3, which I have already cited, (k), and that states: "Disqualification of the respondent for being or becoming a member of the relevant authority concerned or any other relevant authority for a period not exceeding five years." It is interesting to note that 3(1)D talks about first the suspension of the respondent from the relevant authority concerned or any relevant authority concerned for a period not exceeding 12 months. Now, that is a strange drafting because the relevant authority concerned is the authority of whose code of conduct there was a breach, so it is perhaps a little difficult to see what is intended by "any relevant authority concerned", but I suppose what is intended there is that it will extend to a breach which affected membership of more than one authority. Thus for example the councillor who was a member of a County Council and Borough Council might conduct himself in such way as to constitute a breach of the Code of Conduct of each of those councils, and that is what I think is referred to in (e). The distinction there is that the suspension is limited to relevant authorities concerned which is of course entirely proper when one sees what the Act says in section 78A(4)(b), but (k) refers, following the language of 78A(4)(c), to membership of the relevant authority concerned or any other relevant authority. Again, the word is "or" not "and", and it seems to me to be the natural construction of the Act and the regulations that it is open to the Tribunal if it sees fit in an individual case to disqualify from only the relevant authority concerned and not from any other authority of which the individual concerned is a member. Whether or not it would be appropriate to limited disqualification in that way will obviously be a matter for consideration in individual cases. It may be that only rarely would that distinction be drawn. Nonetheless, I am entirely satisfied that as a matter of construction of the Act and the regulations that distinction is open to the Tribunal. I should say, and I am conscious that this point was not directly taken by Mr Lofthouse on behalf of the appellant, the Tribunal has not appeared before me. Miss Ward has put forward arguments which it would be anticipated would have been put forward by any representative of the Tribunal. So to that extent it may be in subsequent cases suggested that my decision can be revisited. So be it, but as far as I am concerned, for the reasons I have given, I am satisfied that this is the proper construction of the Act and the regulations in this case. It is relevant because in deciding and having allowed this appeal and considering what is the appropriate sanction, I might have considered whether it was indeed appropriate to limit disqualification to the Gosport authority. However in my view this was as I have put it a gross error of judgment, and was, as recognised, a serious error. In my view, whilst not meriting disqualification, it did merit suspension. The question then is what is the period which should be imposed. The maximum is six months under the regulations, or until re-election comes round. In fact, the elections for the Borough Council are due in May, the date at the moment being 6 May. Whether that will survive a possible general election of the same date, I do not know. There is nothing in principle to prevent the two being held together, but sometimes the suggestion is that might confuse the electorate, although I suppose it might have the effect of rather increasing the turn out for local elections; it might be no bad thing in certain circumstances, but it is not for me to go into that. That means about three months is left, probably, of the period during which suspension would be appropriate. I bear in mind that the disqualification was operative for a period between 6 and 29 July, some 23 days. It seems to me that for the breaches which were admitted a suspension for a total of three months would have been an appropriate sanction. It would have brought home to the appellant the seriousness of what he had done, and send the right message to all concerned that a serious view was indeed being taken of what he had done, albeit it did not merit disqualification from the councils. Since, as I have said, he has served nearly a month as a result of the disqualification, what I propose to do is to substitute a penalty of suspension for two months which will run from today. It will be open to Mr Chegwyn, it is a matter for him, to seek re-election in the elections whenever they are held in the summer of this year. Equally, it will not affect his membership of the Hampshire county council, which will continue until he wishes to cease to be a member there. No doubt all this has preyed heavily upon him, but he now at least, one hopes, knows the care he must take and his enthusiasm for music festivals must not be allowed to cloud his judgment in relation to the disclosures he makes to the council, and more importantly, because no one is suggesting he has not made proper disclosures, his acceptance of personal and prejudicial interests when matters concerning such festivals that he is involved with are raised. I should say that for the future perhaps common sense would dictate that whenever such issues are to be decided by the council he should exclude himself from taking part in any decisions relating to them. That may be the real lesson learnt from all of this. As it is, I allow the appeal to the extent which I have indicated. MR LOFTHOUSE: My Lord, just one matter of detail in your Lordship's judgment. It is about the meaning of any relevant authority concerned. There is a specific regulation which might assist your Lordship, if reviewing a text at any time of your Lordship's judgment. MR JUSTICE COLLINS: I thought the definition was relevant authority? Is there a definition of "relevant authority concerned"? MR LOFTHOUSE: My Lord, there is. It is tab two, the first page of that tab, my Lord. MR JUSTICE COLLINS: I am sorry, I had not picked that up. MR LOFTHOUSE: In the authorities bundle, my Lord. MR JUSTICE COLLINS: It means any relevant authority of which the respondent is a member or co-opted member, I see. MR LOFTHOUSE: And just over the page, the relevant authority concerned means the authority-- MR JUSTICE COLLINS: Well, then maybe I have made the leap then that what I said about suspension, because with that definition there is a strong argument that that regulation is ultra vires , but I do not need to decide that, and I do not want to decide that. I think someone should look out and seriously consider the vires of that having regard to section 78A or B. I am bound to say that prima facie , I had assumed that any relevant authority concerned would be limited to, as I say, the breach of Code of Conduct relating to more than one authority, which is a perfectly proper state of affairs. MR LOFTHOUSE: And my Lord, the choice of two different definitions, the one beginning "any", and the other beginning "the", is the asking, if I may say so-- MR JUSTICE COLLINS: It may be asking for trouble a bit, but "the" one is obvious, the one which is concerned, in this case Gosport. MR LOFTHOUSE: My Lord the question of costs, my Lord. MR JUSTICE COLLINS: I do not think you can resist the order for costs? MISS WARD: Only to say this: the Ethical Standard Officer was here defending a decision which was not hers. MR JUSTICE COLLINS: Someone must pay the costs and it is not normally the practice of the court to mark the Tribunal, you have come along to denied it. MISS WARD: We could have not come along to defend it. MR JUSTICE COLLINS: You did not have to, but you did, and I think you have come at the risk of costs. MISS WARD: So be it. I have nothing else I can say in principle. MR JUSTICE COLLINS: Yes, if you have a schedule, I have not seen it. Is it objected to? MISS WARD: My Lord, no. Unusually, when acting for a Public Authority, the schedule is almost as reasonable as ours would be. MR JUSTICE COLLINS: It can happen. MR LOFTHOUSE: I am very grateful. MR JUSTICE COLLINS: Well, if there is no objection to the amount. Yes it does seem pretty reasonable. In that case, I will allow this appeal with costs in the sum of £4697.85. MR LOFTHOUSE: I am grateful. MISS WARD: My Lord, just one further point of clarification. My Lord referred to the section of the Local Government Act 2000 as amended. There have been more recent amendments, they do not go to the substance of this mater, the references to Tribunal, for example, have been amended. MR JUSTICE COLLINS: I am assuming that what I have seen is the one currently in force? MISS WARD: It is the. Words such as "provides", rather than "provided". MR JUSTICE COLLINS: Yes, I think that is perhaps not material. MISS WARD: It is not material. MR JUSTICE COLLINS: All right. MR LOFTHOUSE: My Lord, the only other thing is that you said the accounts were for the year the Tribunal. The specific accounts were not, although books were offered to the Tribunal. MR JUSTICE COLLINS: They could have been. They were offered, were they not? MR LOFTHOUSE: I do not know if they were prepared at the time. MR JUSTICE COLLINS: I see. The books, was it. I will make that amendment. MR LOFTHOUSE: And my Lord, lastly, it comes as a surprise to me, also. Mr Chegwyn tells me there is not really a terrible personal animosity between him and Mr Cook. MR JUSTICE COLLINS: I see, it is a political animosity, is it? Well, I suppose they can slag each other off politically, it has been known, and get on personally. MR LOFTHOUSE: I thought I would mention it, my Lord. MR JUSTICE COLLINS: Fair enough. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII