Agenda item

This Part B Report provides background information and advice with regard to the Investigator’s report and findings.

 

(THIS REPORT IS “TO FOLLOW”)

The Committee was aware that Mr. Melvin Kenyon, of Kenyon Brabrook Ltd, had been appointed as the external investigator into the complaint against Councillor Nick Turner. The complaint and the Monitoring Officer’s Decision Notice had been used to define the scope of the investigation (as set out in Section 5 of the Investigation Report).  Councillor Turner’s initial response to the Complaint was included at section 5.2 of the Investigation Report.

 

Following a thorough investigation (the approach and formal interview methodology was set out in Section 6 of the Investigation Report) it had been concluded that there was sufficient evidence to show that Councillor Turner, based on a balance of probabilities and the evidence available, had breached Paragraphs 1.1, 1.2, 2.3 and 5.1 of the Council’s Code of Conduct.

 

Both parties had had the opportunity to comment on the draft Investigation Report and the findings contained therein.  Through consideration of the draft report, Councillor Turner had not indicated that he disputed the contents, the evidence presented or that he would wish to make further representations to those included within his interview.  Councillor Turner’s response was set out in Section 6.3 of the Investigation Report.  The Investigation Report had been finalised on 10^th January 2024 and had been formally sent to Councillor Turner on 23^rd February 2024.

 

If an investigation concluded that there was evidence of a failure to comply with the Code of Conduct, the Council’s Complaints Procedure at Section 7.1 provided the Monitoring Officer with the authority to obtain an informal resolution, in consultation with the Independent Person, where it could reasonably be resolved without the need for a hearing by the Standards Committee. 

 

Although the procedure did not require consultation with an Independent Person if the Monitoring Officer considered that informal resolution was not an appropriate course of action, and that the matter should be referred for a hearing before the Standards Committee, it had been considered, by the Monitoring Officer that, on this occasion, seeking their view would be beneficial, prior to making the decision.  That communication and its response had been as follows:-

From Lisa Hastings, Monitoring Officer to Independent Person (Jane Watts) via email on 25^th January 2024:

“Dear Jane,

Further to Karen’s email and to progress to the next stage of the process, in respect of the complaint against Cllr Turner, I am required to decide either to refer the matter for a hearing before the Standards Committee or in consultation with one of the Independent Persons seek an informal resolution or mediation.  I have included the relevant extracts from the procedure for ease of reference

Although the procedure does not require me to consult an Independent Person if I consider that informal resolution is not an appropriate course of action, and that the matter should be referred for a hearing before the Standards Committee, I feel seeking your views would be beneficial. 

Councillor Turner offered an apology at the outset, when the complaint was received, however, at the time I considered this to be an apology which did not demonstrate being sorry for the alleged conduct, it appeared more about that others were offended by his actions and a lack of the impact of those behaviours.  Throughout the investigation, Councillor Turner has offered further apologies and these are captured within the Investigator’s Report however, again, I do not consider these to be sufficient to recognise the seriousness and scale of the complaint, the national platform on which the behaviours were witnessed, the number of agencies involved and the potential damage to Tendring District Council.  There is no acceptance of the Code of Conduct, breaches thereof, even having seen the final report and an apology has not been given to TDC.  Therefore, in the circumstances, I feel that it is not appropriate to seek a further apology but to refer the matter to the Standards Committee for a hearing to be undertaken by Members.”

Reply from Independent Person (Jane Watts) to Monitoring Officer via email on 25^th January 2024.

“Dear Lisa,

 

Having read the investigator's report, I am in complete agreement with you - I don't think either mediation or an informal resolution is appropriate in this case.

 

I don't think Councillor Turner believes that his conduct needs to change; he seems to think that others are too sensitive if they find him disrespectful, overbearing or are offended by what he says.

 

Kind regards,

Jane”

 

Councillor Turner and the Complainant had been subsequently notified that the Monitoring Officer had exercised her discretion to refer the matter to the Standards Committee so that the Investigation Report could be considered by Members through the hearing process. Upon receipt of the notification that a Hearing was required and of a copy of the Hearing Procedures, Councillor Turner had requested the Investigator to call witnesses in support of his report. This had not been considered necessary, however, witness statements had been provided for the following witnesses and those statements were attached as Annexes 1-9 to the Monitoring Officer’s report (B.1) i.e.

 

·      Annex 1 – witness statement of Cllr Ernest Gibson, Chair of the LGA Coastal Special Interest Group and a South Tyneside Councillor

·      Annex 2 – witness statement of Sidonie Kenward, Marine and Terrestrial Planner at the Marine Management Organisation

·      Annex 3 – witness statement of Beccy MacDonald-Lofts, Lead Officer the LGA Coastal Special Interest Group

·      Annex 4 – witness statement of Ross MacLeod, Public Affairs Manager (Water Safety), RNLI

·      Annex 5 – witness statement of Rhys Hobbs, Environmental Resilience and Adaptation Manager, Cornwall Council

·      Annex 6 – witness statement of Cllr Derek Bastiman, Deputy Chair of the LGA Coastal Special Interest Group and North Yorkshire Councillor

·      Annex 7 – witness statement of Alysha Stockman, Partnerships Engagement Support Officer at East Suffolk Council 

·      Annex 8 – witness statement of Cllr Noel Galer, Great Yarmouth Councillor

·      Annex 9 – witness statement of Nick Hardiman, Expert Adviser – Coast National FCRM at the Environment Agency

 

Councillor Turner had then requested that the following witnesses be called, on his behalf, so that his team could question them at the hearing.  Requests had been duly sent, however, all of them who had responded had declined to attend, wishing to rely on their written statements only.  Beccy Macdonald-Lofts however, had agreed to answer any written questions from Councillor Turner, the Chairman of the Committee or the Committee itself.  Councillor Turner had been provided with that information.

 

WITNESS	ORGANISATION	RESPONSE
SidonieKenward	Senior Marine Planner, Marine Management Organisation	Thank you for the opportunity to attend however I politely decline. My detailed statement covers everything.
Ross MacLeod	Public Affairs Manager (Water Safety), RNLI	Thanks for the email and apologies for the delay. After careful consideration I’ve decided to politely decline Cllr Turner’s request to attend the hearing as I don’t have anything further to add to the information already provided.
Beccy MacDonald-Lofts	Lead Officer, Local Government Association Coastal Special Interest Group   Co-Secretariat All Party Parliamentary Group for Coastal Communities	Unfortunately, I will be away attending a conference in Blackpool on that day and so it is looking very unlikely that I will be able to attend. However, if Cllr Turner, the Chair or Committee have any questions for me please do feel free to send them over and I will send you a written response.
Councillor Gibson	South Tyneside Council	No response received
Councillor Bastiman	Conservative member of North Yorkshire Council	No response received
Councillor Noel Galer	Great Yarmouth Councillor	No response received
Nick Hardiman	Expert Adviser – Coast National FCRM at the Environment Agency	No response received
Rhys Hobbs	Environmental Resilience and Adaptation Manager, Cornwall Council	No response received

 

Investigation Report & Evidence

 

The Committee was advised that the Investigation report should be treated as an explanation of all the essential elements of the case and a justification for why the Investigation had concluded that there had been a breach of the Code of Conduct or not.  The report should cover the agreed facts, any disputed facts, whether those facts amounted to a breach of the Code or not; and the reasons for reaching that conclusion.

In many cases, the Committee might not need to consider any evidence other than the Investigation Report and any other supporting documents.  However, the Committee might need to hear from witnesses if more evidence was needed, or if people did not agree with certain findings of fact in the report.

 

The Standards Committee must also determine whether, having considered the report and the evidence presented, Councillor Turner was acting ‘in capacity’, despite the Council having no formal record of him being appointed to the LGA Coastal SIG as an Outside Body on behalf of Tendring District Council.

 

Should the Standards Committee, following consultation with the Independent Person determine, on a balance of probabilities that Councillor Turner had failed to comply with the Members’ Code of Conduct, they had the power to take action as may be relevant, proportionate, and necessary to promote and maintain high standards of conduct.  The actions available to the Standards Committee were set out in Paragraph 8.1 of the Complaints Procedure, which had been included within the A1 Report.

 

The Monitoring Officer’s report (B.1) also provided the Committee with information and advice in relation to the following pertinent matters:-

 

·           Members’ Code of Conduct and specifically paragraphs 1.1, 1.2, 2.3 and 5.1;

·           the key principles of any investigation: proportionality; fairness; transparency; and impartiality;

·           Human Rights Act 1998 (Section 6);

·           Article 10(1) of the European Convention on Human Rights including the pertinent judgement of Hickinbottom J in Heesom v Public Services Ombudsman for Wales;

·           Guidance on the LGA Model Councillor Code of Conduct (2021) especially in relation to respect, discrimination and disrepute; and

·           LGA Guidance on Member Model Code Complaints Handling (2021) and specifically the presentation of evidence.

 

An update sheet had been circulated to all parties prior to the commencement of the meeting, which stated:-

 

“AGENDA Item No. 7 – REPORT OF THE MONITORING OFFICER - B.1 – Report Outcome of Members’ Code of Conduct Investigation (Pages 5-122)

 

Two packs of additional material has been sent to Members of the Standards Committee, Independent Persons and the Subject Member, Cllr Turner.

 

(i)    Additional Private Documentation Pack containing the recorded text of Cllr Turner’s interview with the Investigator (Melvin Kenyon) (page 5-11)

 

Cllr Turner’s defence submission (page 13-27)

 

(ii)   Response of Beccy MacDonald-Lofts to questions posed to her, through the Chair of the Standards Committee, by Cllr Turner

 

The following are verbal updates from the Monitoring Officer, which will be delivered during the above meeting of the Standards Committee:

 

(iii)  The following clarification question was received from Cllr Newton on 12 May 24, which is detailed as follows:

 

‘I just wanted to point out that on page 26 on the public agenda under the heading Councillor’s Response, 4th line down reads “he obviously didn’t understand the modern mind” Yet in the Part B page 39 5.2 Subject Member Response 8th line down it reads “ I truly do understand the modern mind”  which of these statements are correct? Is this an oversight?’

 

The Monitoring Officer has supplied the following response:

 

‘Thank you for your email and being so thorough with your reading.  You are correct in that the extract from Cllr Turner’s response on 18th August 2023 (page 39 on Blue Pages states “I truly do understand the modern mind”.  My summary in the Part A report comes from the words he used in the interview with the Investigator, which was as follows:

 

“As I said in my email, “I am shocked at how what I said can be so misconstrued” and “I truly do not understand the modern mind”. I stand by what I wrote in that email – I have read it back several times to myself – it was an instant response and I thought that was what was required. I don’t comprehend this, I find it appalling, it shuts down conversation.”

 

Therefore, the email from Cllr Turner on 18th August did miss out the word ‘not’ but he used ‘not’ in his interview, which is confirmed in the statement I have just circulated to the Committee.  Thank you for highlighting this and we will make reference to this in the update sheet.’

 

(iv)  Legal Requirements - Hearing Procedures - page 10 of the Part B report

 

Councillor Turner was provided (on 7th May 2024) with the revised Hearing Procedures approved by the Standards Committee on 24th April 2024 and he was requested to confirm the following information in writing:

 

1.    Whether he would wish to be represented at the hearing and if so, by whom;

 

Response:  I will have 3 representatives and awaiting confirmation as I type.

 

Note: No further information has been provided.

 

2.    Whether he disagreed with any of the findings of fact in the investigation report, including reasons for any of these disagreements;

 

Response: We consider there are few, if any findings of fact within the report. The concerns revolve around omissions in the report and where the witnesses have made statements without any backing evidence.

 

Note: no matters of dispute were provided at the draft report stage.

 

3.    Whether he would wish to give evidence to the hearing, either verbally or in writing;

 

Response:  Yes, I have attached my written defence submission for circulation to the committee in good time for the meeting.

 

Note: previously circulated to the Members of the Committee on Friday 10th May

 

4.    Whether he would wish to call relevant witnesses to give evidence to the Standards Committee;

 

Response: We have requested that witnesses attend so that we can establish the robustness of their evidence, but they have all declined including it would appear the complainant who, as yet, has not responded, making the procedure inherently unfair to myself under ‘Natural Justice. I have attached a list of questions for Ms McDonald-Lofts to answer in writing as offered.

 

Note: questions and responses circulated to all parties.

 

5.    Whether he would request any part of the hearing to be held in private;

 

Response: Exclusion of Press and Public - in private

 

Note: no reasons provided

 

6.    Whether he would request any part of the investigation report or other relevant documents to be withheld from the public.

 

Response: To be withheld

 

(v)   The Human Rights Act 1988 - Article 10, Freedom of Expression - page 10 of the Part B report Standards Committee members requested the complete wording for Article 10 to be provided:

 

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

 

The three stage process set out on page 10 of the Part B report, used by Wilkie J in Sanders No. (1) (at [72], and by Beatson J in Calver (at [39]) was also referenced in Robinson, R (On the Application Of) v Buckinghamshire Council, https://www.bailii.org/ew/cases/EWHC/Admin/2021/2014.html when considering domestic authorities on the application of Article 10 ECHR to decisions of standards bodies under the previous statutory scheme.

 

The principal basis of the challenge was that the decision was in breach of section 6 of the Human Rights Act 1998, as it violated Cllr Robinson’s right to freedom of expression under Article 10 of the European Convention on Human Rights.  In the High Court, Mrs Justice Lang concluded that the claim should succeed.

Paragraph 74:

 

The Deputy Monitoring Officer [who was the decision maker in this case] failed to refer to the statements made by the Claimant and given the importance that was placed upon his statements, for the purposes of the Code and Article 10, it was considered a significant failing in the assessment and decision-making process.  It was not possible to say what a difference it would have made to the outcome if this exercise had been properly undertaken.

 

Paragraph 94:

 

“In conclusion, I find the DMO’s interpretation and/or application of Article 10 flawed, and she failed to give effect to the Claimant’s enhanced right of political expression.  In re-making the decision under Article 10(2), I conclude that the interference did not fulfil a pressing social need, and nor was it proportionate to the aim of protecting the reputation of the other councillors.  As an elected councillor, taking part in a public meeting called by the PC to discuss the Green Belt, the Claimant was entitled to the enhance protection afforded to the expression of political opinions on matters of public interest, and the benefits of freedom of expression in a political context outweighed the need to protect the reputation of other councillors against public criticism, notwithstanding that the criticism was found to be a misrepresentation, untruthful and offensive”.

 

It is therefore important that in reaching its decision the Standards Committee record their findings and undertake the required assessments by following the three stage process as set out in the Wilkie J (where it was concluded, following applying Article 10(2) to the facts of the case, the Appellant’s words were no more than expressions of personal anger and abuse and did not constitute political expression, which attracted a higher level of protection under Article 10).

 

In proceeding with their Hearing the Committee was requested to bear in mind the following:-

 

“that the Standards Committee in undertaking a Hearing in accordance with the Council’s Hearing Procedures, as set out in Appendix C to report A1:-

 

(a)    determines, on a balance of probabilities, whether Councillor Nick Turner was acting ‘in capacity’ at the meetings of the Local Government Association Coastal Special Interest Group on 5^th and 29^th June 2024 and if so;

(b)    whether, on a balance of probabilities, he failed to comply with Paragraphs 1.1, 1.2, 2.3 and/or 5.1 of the District Council’s Members’ Code of Conduct (with detailed reasons to be provided to support that determination);

(c)    subject to (b), determine what action, if any, the Committee should take as a result of any such found failure, following consultation with an Independent Person; and

(d)    considers any further recommendations arising through the Hearing Procedure.”

 

The Committee noted the foregoing.