Judge lifts stay on council continuing investigation into conduct of councillor

A High Court judge has lifted a temporary stay obtained by a councillor that prevented a local authority from continuing with an investigation into alleged wrongdoing.

The claimant in Hussain v Sandwell Metropolitan Borough Council [2017] EWHC 1641 (Admin), Cllr Mahboob Hussain, was alleged to have been engaged in various transactions in early 2012 which involved procuring the sale of council assets to family friends at a substantial undervalue.

The councillor, an elected Labour member of the Labour controlled authority, was also alleged to have used his power and influence as a senior politician within Sandwell to have parking tickets issued to his family expunged.

The council’s audit committee had commenced an investigation after various allegations circulated in 2014 in the press and on social media that there had been serial and longstanding wrongdoing by elected members.

An external firm of solicitors were brought in to assist. The firm interviewed Cllr Husssain on two separate occasions about the allegations.

“Regrettably, towards the end of the process, the solicitor conducting the investigation made a personal and derogatory observation about the claimant and his family to the chief executive,” Mr Justice Green said.

The chief executive, Jan Britton, then considered whether it was proper to continue with the firm given the risk of bias. It was decided that – with the investigation at an advanced stage – the work should be completed. But it was also decided that the evidence and report should be submitted to leading counsel for independent advice.

The solicitors' report was presented to Sandwell Council in April 2016. A QC then advised in May 2016.

“The gist of the advice was that there was a serious case to be met by the claimant and that the solicitors report and the opinion should be placed into the public domain to address criticisms then being made in the press that the authority was suppressing wrongdoing and not taking its obligations seriously,” Mr Justice Green said in a press summary of the ruling.

Counsel also advised that a formal investigation of the allegations against the claimant under the Localism Act 2011 be initiated.

The judge said the investigation then became ‘political’ in the sense that the investigation was used by members against each other during elections of a new Leader of the council. The solicitors' report and the QC's opinion were leaked.

When the council said it intended to publish the two documents, Cllr Hussain sought permission for judicial review and an order prohibiting publication.

The High Court refused permission for a judicial review challenge, but the Court of Appeal went on to grant permission. Sandwell’s investigation was stayed by the High Court pending the outcome of Cllr Hussain’s challenge. This also prevented the authority from convening a standards committee investigation to hear and then rule upon the allegations against him.

The claimant advanced a number of grounds of challenge. The judge said these raised issues about the scope of the powers of local authorities generally to investigate alleged wrongdoing under the Local Government Act 1972 and the Localism Act 2011 and the interaction between these measures and the Data Protection Act 1998.

The claimant argued that:

• The investigation was and remained flawed and unlawful because it was infected by bias, politically motivated, oppressive, irrational and unreasonable.
• There was no lawful power to investigate alleged misconduct pre-dating the coming into effect of the Localism Act 2011 (1 July 2012), and no power more generally to invoke the powers in the Local Government Act 1972 and the Localism Act 2011 in support of investigations into this sort of alleged misconduct.
• In relation to the decision to place the solicitors' report and the QC's opinion into the public domain, this was an irrational and politically motivated act, that it was infected by bias, and in any event the decision was unlawful under data protection legislation and violated the rights of Cllr Hussain and his family under Article 8 ECHR.

Dismissing the claim for judicial review, Mr Justice Green said: “On the evidence before the Court there is a serious prima facie case against the claimant. The allegations should now be investigated properly in accordance with the formal arrangement instituted by the council under the LA 2011 [Localism Act].

“The council has ample powers to conduct investigations into this sort of impropriety. The argument that Parliament intended an amnesty to be accorded to those engaged in wrongdoing before the coming into effect of the LA 2011 (on 1st July 2011) is rejected. The decision to publish the solicitors report and the opinion were fully justified and in the public interest and were not prohibited by data protection laws or Article 8 ECHR.”

The judge said he had also decided that even if he were wrong in his analysis of the powers of the local authority and that it had in the past acted unlawfully that none of these breaches would be material or have any real impact on the fairness of the investigatory procedure going forward.

“A striking feature of the case is that the standards committee, which will hear and adjudicate upon allegations made against the claimant, has not yet been convened, due to the stay that the claimant successfully obtained from the High Court,” Mr Justice Green said. [His emphasis]

“When the stay is lifted, which it will be by Order of this Court, the claimant will have a full opportunity to present his case and establish that the allegation against him are to be rejected.”

The judge said he agreed with the position adopted by the council that the allegations were serious and that there was a powerful public interest in those allegations being thoroughly and fairly tested and adjudicated upon.

“The fact that the issues have acquired a ‘political’ flavour to them is not a reason for the council, as a body, to act differently. On the contrary it must act independently and objectively throughout, as it has done," he noted.

The stay on all proceedings was lifted.

Commenting on the ruling, Sandwell’s Britton said: “We welcome the judgment that the claim for a judicial review has been rejected in totality and that the council’s case has been vindicated.

“Now legal issues have come to a conclusion, the council is able to proceed with its standards process.”