Leonie Cowen looks at how lawyers can avoid becoming caught up in another Westminster 'homes for votes'-style scandal. Leonie Cowen is a solicitor and local government consultant.
Just before Christmas, three Divisional Court judges handed down judgment in the infamous Westminster City Council 'homes for votes' case.
They confirmed the district auditor's finding of 'wilful misconduct' against former council leader Dame Shirley Porter and the former deputy leader, David Weeks, but not against ex-housing committee chairman Peter Hartley, former managing director Bill Phillips and former housing director Graham England. The judges also amended the loss, for which Porter and Weeks are jointly and severally liable, to £27,023,376.
What implications does this case have for lawyers advising local authorities? Forty-four council members, officers and others (including the then city solicitor and his deputy) were interviewed by the auditor. Their actions, the advice they gave and that of leading counsel were considered in detail as part of the judgment.
An examination of the decision-making processes within Westminster City Council and the interrelation between members and officers was central to the issue of wilful misconduct.
The audit was expensive and potentially very damaging for all involved, even though most (including the lawyers) were fully exonerated. Like Burgoine and Cook (Burgoine & Cooke v Waltham Forest (1996)), who were officers appointed to act as directors of a company which subsequently became insolvent, those caught up in the 'homes for votes' audit must wonder how they could have avoided several years of suffering.
Porter's and Weeks' purpose was to achieve unlawful electoral advantage, and working within that environment must have been very unpleasant and difficult.
The court recognised that these pressures may have had an insidious effect on officers making them reluctant to speak robustly. But to protect themselves and fulfil their responsibilities to their council, officers should give comprehensive, unequivocal, robust advice to members at an early stage in the development of policies and thereafter in committee reports and at committee.
All advice should be fully documented. Unlike in the Westminster case, counsel's advice should be obtained or recorded in writing. It is essential to ensure that instructions are comprehensive, because the value of the advice depends upon this.
The court concluded that there was nothing improper in council officers attending meetings of a members' group because their presence did not convey assent to party political views but gave them the opportunity to hear the germination and development of ideas which might develop into council policy. Equally, providing majority and minority councillors with information was regarded as legitimate.
I suggest that a protocol agreed between the chief executive and each political party is advisable. This should set out whether, and if so when, officers should attend group meetings and what role they should play. In addition, each political party should demonstrably be treated fairly.
It is not appropriate for officers to imperil their independence by political partiality or by suppressing their professional views in the face of political pressure. As anyone who has held a senior position in local government will know, the dividing line is sometimes difficult to establish, particularly in councils with a single party majority where committees sometimes seem a mere formality.
Pressure to avoid rocking the boat by not putting counter arguments is often subtle and unintentional rather than overt, but it should always be resisted. The formal committee process or officer decisions under delegated powers must be carried out properly and not treated as rubber-stamping exercises.
Finally, it would be unfortunate if this sorry story, dating back over about 10 years, should deter lawyers and others from entering local government. Westminster City Council in the late 1980s was not typical of local government. In most local authorities, members of all political parties and council officers share common goals and respect each others roles and responsibilities.