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Investigation into a complaint against

Councillor Roy Emmett

A report for the Monitoring Officer of


London Borough of Redbridge

14 June 2018
Please note that this is a confidential draft report with provisional findings and recommendations

Contents
1 Executive Summary ……… ……… … ………… ……… ……… ……… ……… ……… ……… ……… ……… ....…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……… ……… ……… .…… ……… ……… ……… ……… ……… …..……… ……… ……… …… ………… ……… ……… ……… ……… ……… ……… ……..…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… …..................................................……… ……… ……… ……… … ….…… …….……… ……… ……… ……… ……… …… 3
Statement of complaint and outline of investigator recommendations as to
whether the member was acting in member capacity and, if so, whether he
breached the Code.

2 Official details of Councillor Emmett … ……… ……… ……… ……… ……… ....……… ……… ……… ……… ……… ………… ……… ……… ……… ……… ……… …..……… ……… ……… ……… ……… ……… ……… ……… ……… ……… .…… ……… ……… ……… ……… ....…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……..……… ……… ……… …..….… ……… ……… ……… ……… ….… 4
An outline of the members’ position and history in the Council.

3 The relevant legislation & protocols … ……… ……… ……… ……… ……… ……… …....… ……… ……… ……… ……… ……… …… ………… ……… ……… ……… ……… …..……… ……… ……… ……… ……… ……… ……… ……… ……… ……… .…… ……… ……… ……… ……… ....…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……..…… ………… ……… …..….… ……… ……… ……… ……… ….… 4
Relevant parts of the Localism Act 2011 and the Council’s Code of Conduct for
members.

4 The investigation … ……… ……… ……… ……… ……… ……… …....… …… ………… ……… ……… ……… ……… ……… ……… ……… ……… ……… …..……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……....……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……..…… ……… ……… … ………… ……… ……… ……… ……… ……… ……… ……… …....… ……… ……… ……… ……… .…… ……… ……… ……… ……… ……… ……… ……..…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ....…… ……… ……… ……… ……… ………… ……… ……… ……… ……… ……… ……… … 8
An outline of the sources of evidence obtained and the conduct of the
investigation.

5 The evidence ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… …… ……… ………… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ….… …….……… ……..…… ……… ……… ……… ……… …… 8
Factual reasoning on key disputed areas and findings of fact.

6 Have there been failures to comply with the Code of Conduct? ……… ……… ……… ……… ……… ……… ……… ….… ……… ……… …… 27
Investigator’s suggestions as to whether or not Councillor Emmett failed to comply
with the Code.

7 Recommendations ……… ……… ……… ……… …… ………… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ..… ………… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……… ……..…… ……… ……… ……… ……… ……… ……… ……… ……… ……… ………… ……… ……… ……… ……… ……… ……… ……… 32
Investigator’s suggestions as to recommendations.

Annex: 33

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Please note that this is a confidential draft report with provisional findings and recommendations

1 Executive Summary
1.1 ch&i associates was appointed by the Monitoring Officer at the London Borough
of Redbridge (the Council) to investigate complaints made by Councillor Aziz
Choudhury1 about the conduct of Councillor Roy Emmett.

Scope and focus of the investigation

1.2 Councillor Choudhury initially alleged that Councillor Emmett, in his role as Chief
Whip of the Labour Group, had bullied and intimidated in relation to a ‘tweet’
Councillor Choudhury had posted on his Twitter account on 24 November 2017.
Councillor Choudhury subsequently asked that the Monitoring Officer also
consider Councillor Emmet’s conduct in relation to his role in the Labour Group’s
candidate selection process prior to the 2018 Local Elections.

1.3 Councillor Choudhury subsequently submitted a second complaint against


Councillor Emmett; alleging that on 22 July 2016 Councillor Emmett had
politicised the quasi-judicial planning/regulatory committee process in relational
to his use of political substitutes, which Councillor Choudhury believed to be
unlawful. Councillor Choudhury also alleged that on 16 December 2015
Councillor Emmett used his position to improperly influence the Chair of the
Council’s Regulatory Committee in relation to a planning application concerning
Jacques Hall.

Provisional Recommendation

1.4 My approach in this case has been to equip the Council to determine the
allegations through any of the routes open to it, namely:

a. The member was not acting in councillor capacity therefore the code was
not engaged, and the member did not breach it;

b. The member was acting in member capacity, but did not through their
conduct breach any Code paragraph;

c. The member was acting in member capacity and breached the Code.

1.5 It is my provisional view that Councillor Emmett was not acting in councillor
capacity in relation to the allegations set out in paragraph 1.2 and therefore the
code was not engaged. While I consider that those matters referred to in
paragraph 1.3 do fall within the jurisdiction of the standards framework, my
provisional view is that Councillor Emmett’s conduct did not amount to a breach
of the Code. I therefore recommend that the Council take no further action with
regards these matters.

1 Councillor Choudhury did not stand in the most recent election and is therefore no longer a member of
the Council. For the purposes of this report however I will continue to refer to him as Councillor
Choudhury.

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Please note that this is a confidential draft report with provisional findings and recommendations

2 Official details of Councillor Emmett


2.1 Councillor Roy Emmett served as a member of the Council from 1994 until 2002.
Councillor Emmett was elected again in 2014 and has served continuously since;
he was most recently elected in May 2018, after Councillor Choudhury’s
complaint was made. Councillor Emmett represents Hainault Ward and has been
the Labour Group’s Chief Whip since March 2016 (this is not a Cabinet position).

2.2 Councillor Emmett sits on the following Committees for the Council

• General Purposes Committee


• Governance & Assurance Committee (Vice-Chair)
• Licensing Committee
• People Scrutiny Committee

Councillor Emmett has been appointed by the Council to the following outside
bodies:

• Hainault Business Partnership Ltd.


• Hainault Forest Community Association (Management Committee)
• Manford Way Business Partnership
• Redbridge Learning Disability Partnership Board
• Reserve Forces & Cadets Association for Greater London

3 The relevant legislation & protocols


Localism Act 2011

3.1 By section 27(1) of the Localism Act 2011 (the Act) a “relevant authority” is placed
under a statutory duty to “promote and maintain high standards of conduct by
members and co-opted members of the authority”.

3.2 By section 27(2) of the Act a relevant authority “must in particular, adopt a code
dealing with the conduct that is expected of members and co-opted members of
the authority when they are acting in that capacity”.

3.3 Under section 28(1) of the Act a relevant authority must secure that a code
adopted by it is, when viewed as a whole, consistent with prescribed principles
of standards in public life – the so called “Nolan principles”.

3.4 The intention of the legislation is to ensure that the conduct of public life in local
government does not fall below a minimum level which engenders public

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Please note that this is a confidential draft report with provisional findings and recommendations

confidence in democracy, as was recognised by Beatson J, as he then was, in R


(Calver) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) when
he held that there was a clear public interest in maintaining confidence in local
government while at the same time bearing in mind the importance of freedom
of political expression or speech in the political sphere.

3.5 Under 28(6) of the Act, Local Authorities must have in place (a) arrangements
under which allegations can be investigated and (b) arrangements under which
decisions on allegations can be made. By section 27(7), arrangements put in
place under subsection (6)(b) must include provision by the appointment of the
authority of at least one “independent person” whose views are to be sought, and
taken into account, by the authority before it makes its decision on an allegation
that it has decided to investigate.

3.6 Section 28(11) of the Act provides that if a relevant authority finds that a member
or a co-opted member of the authority has failed to comply with its code of
conduct it may have regard to the failure in deciding (a) whether to take action in
relation to the member or co-opted member and (b) what action to take.

London Borough or Redbridge’s Constitution

3.7 Under Section 27(2) of the Localism Act the Council established a Code of
Conduct for members within its Constitution (the Code).

3.8 The Code adopted by the Council includes the following paragraphs:

Part 1

Preliminary […]

2. In your activities as a Member, you should follow the ‘Nolan Principles


of Public Life’:

• Selflessness – serve only the public interest.

• Integrity – do not place yourself under any financial or other


obligation to outside individuals or organisations.

• Objectivity – make decisions on merit.

• Accountability – remain accountable to the public for your


decisions and actions.

• Openness – be as open as possible and give reasons for your


decisions and actions.

• Honesty – declare any private interests and resolve any conflicts


in way that protects the public interest.

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Please note that this is a confidential draft report with provisional findings and recommendations

• Leadership – promote and support these principles by example


and act in a way that preserves public confidence

General Provisions

Introduction and Interpretation

1. (1) This Code applies to you as a Member of the Council.

(2) It is your responsibility to comply with this Code. Failure to do


so may result in a sanction being applied by the Council […]

Scope

2. (1) Subject to sub-paragraphs (2) and (3), you must comply with
this Code whenever you –

(a) conduct business of the Council (which, in this Code, includes


the business of the office to which you are elected or appointed); or

(b) act, claim to act or give the impression you are acting as a
representative of the Council, and references to your official
capacity are construed accordingly.

(2) This Code does not have effect in relation to your conduct other
than where it is in your official capacity. […]

General Obligations

3. (1) You must treat others with respect.

(2) You must not –

(a) do anything which may cause your authority to breach


the Equality Act 2010;

(b) bully any person; […]

5. You must not conduct yourself in a manner which could


reasonably be regarded as bringing your office or the Council into
disrepute.

6. You –

(a) must not use or attempt to use your position as a Member


improperly to confer on or secure for yourself, or any other
person, an advantage or disadvantage

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Please note that this is a confidential draft report with provisional findings and recommendations

3.9 Part 3, Section 2 of the Council’s Constitution, titled ‘Standing Orders relating to
Cabinet and Committees’ includes:

34. Membership of Council Committees and Substitutes

34.1 Each municipal year, the Council will appoint the members of
each Committee. During the year, the Council may at any time
alter any committee’s membership.

34.2 No member of the Cabinet shall :-

(a) be a member of or act as a substitute for any member on


any Scrutiny Committee or the Governance and Assurance
Committee or any of their subsidiary bodies; or

(b) participate in the determination of a planning or licensing


application.

34.3 Members of Committees and Sub-Committees will hold office


until either:

(a) they are removed from office by Council;


(b) their successors are appointed;
(c) they tender their resignation;
(d) they cease to be a Councillor;
(e) they are disqualified or suspended from office by virtue of
any statutory provision, including section 80 of the Local
Government Act 1982 and section 173 of the Representation
of the People Act 1983; or
(f) in the case of members of Sub-Committees, they cease to
be members of the parent committee.

34.4 If any councillor is unable to attend a meeting as a member of


a committee, or sub-committee, another member from the same
political group who is eligible to be a member of the relevant
body may attend in their place, provided this has been approved
by their group Leader or spokesperson. The names of the
substitute and the person he/she is replacing must be advised
at the start of the meeting and, once made, a substitution may
not be rescinded. Therefore, once a substitution has been
made, the member who has been replaced may not take part in
the meeting as a member of that committee or sub-committee.

34.5 A substitute has the same status and responsibilities as any


other committee member except that he/she may not be elected
a Chair or Vice- Chair of the body on which he/she is
substituting (Standing Order 46). In addition, a substitute
member may not, with the exception of substitutes at meetings
of Licensing Sub-Committees appointed under the Licensing

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Act 2003, chair any meeting under the provisions of Standing


Order 47. […]

50. Determination of Planning, Licensing Applications and Children


Safeguarding

50.1 No Councillor may sit, whether as an appointed member or as a


substitute, on any Committee or Sub-Committee to determine any
planning or licensing application unless he/she has, in the 13 months
immediately preceding the date of that determination, received relevant
training approved by the Assistant Director - Assurance.

4 The investigation
4.1 This investigation was conducted by Alex Oram on behalf of the Council’s
Monitoring Officer. Alex is a director of ch&i associates, a company with a
successful track record of conducting complex investigations, assessments and
case reviews within the regulatory, charity, NHS and local government sectors.
Alex has been conducting member conduct investigations since 2003. He was
previously employed by Standards for England as a principal investigator
responsible for conducting many of their most complex, politically sensitive and
high-profile investigations into member conduct2.

4.2 During the course of this investigation I have considered documentary and / or
oral evidence provided by former Councillor Aziz Choudhury, Councillor Roy
Emmett, Councillor Bert Jones, Councillor Anne Sachs, former Councillor
Barbara White and the Council’s Monitoring Officer. I have also obtained
information from the Council’s website and various other internet sites.

6 The evidence
Matters related to the allegation that on 16 December 2015, Councillor Emmett
used his position to improperly influence the Chair of the Council’s Regulatory
Committee in relation to a planning application concerning Jacques Hall

Background

5.1 On 26 November 2011 it was reported in the Eastern Daily Press that the Council
were preparing to award the Hainault and Chigwell Muslim Association (HCMA)
a 25-year lease for Jacques Hall (also known as Hainault Community Centre,
New North Road Community Centre and 628 New North Road3). The article
stated that more than 100 local residents, who had apparently been involved in
a failed bid to re-open the building, were protesting the decision on the grounds
that the HCMA were intending to turn the Centre into a mosque.

2 Alex is not a lawyer and any information in this report should not be construed as legal advice; all
reasoning is based on his extensive experience of having conducted over 300 standards investigations
3 The building was formerly Hainault Working Men’s Club, which was closed in 2008

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Please note that this is a confidential draft report with provisional findings and recommendations

5.2 Councillor Emmett told me at interview that historically there had been significant
tension in the area between the local Muslim community and a relatively small
group of residents; he had first become involved in 1998 over a dispute
concerning a plot of land that had been sold by Transport for London to the
Muslim Community for use as a cemetery. Councillor Emmett said that there had
been incidents of racism and that he had been threatened on more than one
occasion. Councillor Emmett told me that those who had opposed the cemetery
seemed to then turn their attention to the Community Centre.

5.3 On 5 September 2013, Jacques Hall was formally opened by representatives of


HCMA. Its Chair, Dr Hameed, was quoted as stating: “We have had our ups and
downs and had lots of problems but got there in the end. It was my vision and
passion as there’s a need for a community centre. It was in very bad condition
and we brought it back. We started from scratch and all the money was raised
by us, not a single penny came from the council. People knew it was for a good
cause and have been very generous”

5.4 Anecdotally I have been told that there was significant opposition to the HMCA’s
management of the Community Centre. It was reported that local residents had
complained about a number of ‘conditions of use’ that included the prohibition of
drinking alcohol, eating pork, people wearing shoes, music, dancing and the
mixing of boys and girls in the Centre. It was further alleged that the Centre was
being now being used as a mosque, in breach of the Council’s lease and without
the necessary planning permission.

5.5 In his complaint Councillor Choudhury drew my attention to the minutes of a


meeting of full Council on 19 June 2014, at which Mr David Poole4 asked
Councillor Zammett (the Cabinet Member for Resources and Finance), how
much had been spent by the Council on Jacques Hall in preparation for the lease
and subsequently? Councillor Zammett replied that Jacques Hall had been let on
a 25-year lease to the Hainault and Chigwell Muslim Association. Prior to the
letting of the property, the Council had spent £38,000 on re-roofing works and
ancillary repairs. In addition, on site security had been required following
vandalism and the making of threats; this had been at a cost of £84,000. Since
the letting of the property, the Council had not incurred expenditure on the
maintenance of the property as this was now the responsibility of the lessee.
Councillor Zammett could also advise that no Council money was provided to the
lessee for the refurbishment of Jacques Hall.

5.6 By way of a supplementary question, Mr Poole said as that he had received


several complaints from both residents and community groups who have tried to
book Jacques Hall for birthdays, weddings and social gatherings. They had
complained that the policies and practices currently in place by the current
occupiers prohibited the use of Jacques Hall for the use of community purposes.
Councillor Poole added his own concern, given the public funds spent, that during
the run up to the May 2014 Local Elections the local Labour party had been
invited to address the gathered attendees at the Community Centre. Mr Poole
4Mr Poole had previously been a member of the Council representing Hainault Ward. On 22 May 2014
Mr Poole had failed to regain his seat in the Local Elections. The three seats in Hainault were all won by
Labour candidates, one of whom was Councillor Roy Emmett.

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alleged that at the event one of the Labour candidates had said “all other parties
are racist except the Labour party”5. Councillor Poole asked the Council to
provide an assurance to the local residents of Hainault that everything possible
would be done to ensure that the community centre that was promised (and that
had received public funding) would be open for use by the whole community. Mr
Poole stressed that Jacques Hall should not be allowed to become used as a
political base for the Labour party in Hainault or a place of religious worship,
contrary to the lease agreed and the planning permission granted. Councillor
Zammett replied that it was very clear that Jacques Hall was available to all faiths
and all groups in the community. Councillor Zammett would not comment on what
might have been said at the meeting, which he referred to as being held on 16
May 2014, however he was absolutely certain that the Labour party would not be
looking to use the facility as a political base in Hainault.

5.7 Councillor Choudhury told me that when former Councillor Poole had originally
raised his concerns about links between the Labour Group and HCMA he
dismissed them because they just ‘sounded odd’; he believed that Mr Poole was
just trying to use the situation to attack the Labour Group out of bitterness, having
just lost his Hainault seat on the Council. Councillor Choudhury said though that
he reconsidered his position in light of Councillor Emmett’s subsequent actions.

HCMA’s planning application

5.8 On 9 September 2015, Dr Hameed, as chair of HCMA, submitted a variation of


planning conditions application to extend the opening hours of Jacques Hall by
one hour per day for a limited thirty-day period per year; specifically, during the
month of Ramadan (application ref. 2998/15).

5.9 By November 2015, the Council had received several complaints and a petition
which asserted that local residents were being excluded from the Centre and that
it was being used as a mosque.6

5.10 The Regulatory Committee report, provided to members prior to the meeting,
detailed the various representations in relation to the application. The
representations included a detailed letter from former Councillor Poole which
reiterated his concerns about the way in which the Centre was being used; why
would the Council accept that the Community Centre was not being used as a
place of worship while considering an application that was directly linked to the
Muslim religion The Council received four letters of objection; these largely
focused on problems with car parking; the alleged use of the Centre as a place
of worship and problems with noise. The Council also received nearly forty letters
of support; while many made a point of stressing that Jacques Hall was a multi-
faith centre open to the entire community, several letters said that it needed the
opening hours extended during Ramadan for prayer.

5 I understand that this is alleged to be Councillor Hehir. I also note that he has denied the allegation.
6 A subsequent Council investigation concluded that the level of worship at the Centre was minimal and
that the planning rules and the terms of the lease had not been breached.

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Please note that this is a confidential draft report with provisional findings and recommendations

5.11 On 16 December 2015, Councillor Emmett emailed Councillor Bert Jones (Chair
of the Council’s Regulatory Committee7) as follows:

“One item on tomorrow’s agenda is for the Community Centre at 628 New
North Road. The application is for and [sic] extra hour during Ramadan.
The Chair of the centre, Dr Hameed, has asked me to request support
from the Labour members. This is, I understand, in line with
recommendations. The Community Centre is not perfect (what is) but Dr
Hameed and the centre have supported Labour candidates, and the
centre has made premises available for a meeting between LBR officers,
councillors and local businesses. I’d be grateful if you do your best.
Thanks. Roy Emmet.”

5.12 Councillor Choudhury told me that Councillor Jones provided him with a copy of
Councillor Emmett’s email a few months after it had been sent, telling him that
he had thought it ‘odd’ to be lobbied in such a manner. Councillor Choudhury
said that the email made him reconsider the concerns that had been raised by
Mr Poole; he questioned whether Councillor Emmett was trying to ensure that Dr
Hameed’s planning application was approved as a favour to him because the
Community Centre supported the Labour Group. Councillor Choudhury told me
that whenever he was lobbied by his constituents about planning matters he
would ensure that he always told them that he could not get involved; it was the
responsibility of the Planning Committee to make evidence-based decisions.
Councillor Choudhury said that he considered Councillor Emmett’s email wholly
inappropriate.

5.13 Councillor Jones confirmed at interview that he too had been surprised to receive
Councillor Emmett’s email because he did not think it an appropriate ‘channel’ of
communication; “I didn’t think he should be lobbying me as Chair regarding an
application that he wanted approved in his own ward. He could have addressed
the Committee on the night when the application was being considered or asked
someone to speak at the meeting on his behalf.” Councillor Jones told me that
no other councillor has ever emailed him privately to seek his support for a
planning application. He also confirmed that this was the only time that Councillor
Emmett has ever lobbied in him in this manner.8

7 Now called the Planning Committee


8 Councillor Jones did though recount a meeting between himself, Councillor Athwal (Leader of the Labour
Group and Council) and Councillor Emmett on 21 October 2016, at which he was instructed to become
more assertive as Chair of the Regulatory Committee. Councillor Jones alleged that he was also told that
the Labour leadership wanted him to start voting on all applications (previously he had only used his vote
when required). Councillor Jones said that he was told in no uncertain terms that if he did not start leading
from the front he would lose his position as Chair. Councillor Jones said that he was also instructed to
start providing the Leadership direct feedback after meetings, which was not the norm and made him feel
uncomfortable. In response to the allegation, Councillor Emmett said that he was asked to attend the
meeting by the Leader of the Group as an observer. Councillor Emmett said that it us up to the Leader
and him as Chief Whip to ensure their Group is coherent and able to do the job they are required to do.
Councillor Emmett recalled that the Leader told Councillor Jones that he wanted him to be more assertive
and that there was advice and support available to him if he wanted it. I informed Councillor Jones that
this matter was not directly within the scope of my investigation, particularly as is concerned the conduct
of someone other than Councillor Emmett; if he wanted to pursue the matter further he would need to
raise it formally with the Council’s Monitoring Officer.

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5.14 Councillor Jones told me that he chose not to respond to Councillor Emmett’s
email and confirmed that it played no part in his subsequent considerations.
Councillor Jones said that he shared the email with Councillor Choudhury
because he wanted to discuss whether he should raise his concern with the
Labour leadership; Councillor Choudhury advised him to ‘just leave it’. Councillor
Jones did make the point that this occurred before Councillor Emmett was
appointed as Chief Whip; he would have possibly been more concerned if he had
received such an email from the Chief Whip. Councillor Jones also commented
that the actual planning application was fairly straightforward; it was already
being recommended for approval by the planning officers and, based on what he
had seen up until that point, he saw no reason as to why it should be rejected.

5.15 Councillor Emmett told me that he and Dr Hameed do not have a close
association and confirmed that the Labour Party were not using Jacques Hall as
a ‘base’. Councillor Emmett told me that the one meeting he recalled being held
there (referred to in his email to Councillor Jones) was a community meeting that
he had arranged to try and resolve an issue with a narrow road that was causing
difficult for delivery drivers; this meeting concerned Council (rather than Labour
Group) business and included the Council’s Head of Enforcement9. Councillor
Emmett said that the other community centre in the area did not have enough
space and so he contacted Dr Hameed and asked if the Council could use
Jacques Hall; he agreed at no charge because the meeting was for the benefit
of the community. Councillor Emmett added that he knew nothing about the claim
that a Labour candidate had allegedly made the comment “all other parties are
racist except the Labour party” at a meeting in the Community Centre in the run
up to the 2014 Local Elections.

5.16 Councillor Emmett told me that he emailed Councillor Jones after Dr Hameed
contacted him (as his ward councillor) to inform him that he had submitted the
application and ask if he was prepared to support it. Councillor Emmett
acknowledged that he did not often get involved in planning matters; in this
instance though he agreed to have a look at it. Councillor Emmett said that having
done so (and found that it appeared to be a very minor extension to opening
hours for a very limited period that already had planning officer support), he
decided to email Councillor Jones (as Chair of the Regulatory Committee ) to let
him know he (as the relevant Ward Member) was in support of the application.
Councillor Emmett denied that he was in any way instructing Councillor Jones to
make sure that it was approved, confirming that he expected and received no
response from him.

5.17 Councillor Emmett said that he sent an email (rather than, for instance, going to
the meeting to address the Committee) because at that time he was being treated
for lymph gland cancer and was having radiotherapy; this made talking
particularly difficult. Councillor Emmett confirmed that he could not recall
conveying his position on a planning application within his Ward in this manner
on any other occasion and he expressed regret for having done so in this
instance. Councillor Emmett was clear that he did not consider his actions to
9Councillor Emmett did acknowledge that when he was inviting members of the Council to the meeting
he inadvertently only sent the email to Labour Group members; “which I regret was a mistake on my
part and only worded in such a way because the majority of the Council was Labour”

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have been improper; the planning process allows for Ward members to indicate
whether they support or object to planning applications within their Ward.
Councillor Emmett said that in hindsight though it would have been better to have
sent the email to all members of the Planning Committee, rather than just
privately to the Chair, as this would have been more open and transparent.

5.18 At the Regulatory Committee Meeting of 17 December 2015, members resolved


to grant permission for the extended hours subject to a number of conditions;
these included: the extended hours only being allowed in accordance with
Ramadan’s strict timetable; the production of a scheme for approval by the
Council in relation to both the trees on the site and cycle parking; confirmation
that the premises would only be used as a Community Centre (and not a place
of worship); the marking out of 27 car parking spaces on site and certain noise
restrictions.

Additional matters

5.19 As stated above, following his complaint against Councillor Emmett, Councillor
Choudhury drew my attention to the concerns Mr Poole had originally raised in
2014 (as set out in paragraph 5.5 and 5.6 of this report). Councillor Choudhury
said that when Councillor Poole’s concerns are corroborated, it will demonstrate
that Councillor Emmett’s email to Councillor Jones was effectively an attempt to
fix a planning application for a property that was being used as a base for the
Labour Party. Councillor Choudhury acknowledged at interview that he had
chosen not to raise any concerns about the matter at the time Councillor
Emmett’s email initially came to his attention (mid 2016) because at that time he
did not believe that Mr Poole’s concerns had merit. Councillor Choudhury also
told me that that he had no other evidence to offer the investigation with regards
this matter, either in relation to the Labour Group’s alleged use of the Community
Centre as a base or Councillor Emmett doing ‘favours’ for Dr Hameed in return.
Councillor Choudhury indicated that his position on the matter had changed as a
result of witnessing first-hand the way in which Councillor Emmett was prepared
to behave towards him.

5.20 Following Councillor Choudhury’s complaint, Councillor Emmett’s email to


Councillor Jones dated 16 December 2015 was published on the front page of
the local newspaper. As a result, former Councillor Poole emailed the Monitoring
Officer on 4 April 2018 to repeat his demand for a full investigation into the
leasing arrangements between the Council and HCMA in relation to Jacques
Hall. While this is a matter for the Council and does not fall within the scope of
this investigation, Mr Poole asked the Monitoring Officer to provide me with the
following:

a. A letter from the Charity Commission confirming that guidance had been
sent to the HCMA after it had been brought to their attention that the
charity had been engaging in political activity;

b. Pictures of Labour councillors and supporters, including Councillor


Athwal, electioneering in May 2018 opposite the Community Centre

13
Please note that this is a confidential draft report with provisional findings and recommendations

Mr Poole also made the following assertions:

a. That Dr Hameed is a known supporter of a very concerning branch of


Islam, whose followers are known as Tablighi Jamaat. Mr Poole contends
that this group are known to the security services in both the UK and USA
as the “the gateway to terrorism”;

b. That Councillor Keith Prince10 declared receipt of a bottle of champagne


from Mr Mughal on the day that HCMA’s planning application was
approved. Mr Mughal11 is said to be a trustee of the Community Centre

c. On 12 November 2015 the Council had received a petition containing 203


signatures requesting that the Council revoke the lease issued to HCMA:
“Councillor Emmett, for reasons known only to himself, or for alleged
political gain, ignored very local residents’ concerns, and as the Chief
Whip12 for the local Labour Party, with considerable political influence,
unlawfully intervened in the planning process, and possibly breached the
criminal law in relation to the 2011 Localism Act.”

d. At a Local Forum held on 29 June 2016, Councillor Emmett, along with


Councillor Athwal and the Council’s Chief Executive, listened to nearly one
hundred local residents express their concerns about the way in which
HMCA were managing Jacques Hall without ever informing them about
the email he had sent to the Chairman of the Regulatory Committee only
six months earlier, telling him to support their planning application.

5.21 While it is not within the scope of this investigation to look into the leasing
arrangements between the Council and Jacques Hall13, the alleged relationship
between Councillor Emmett and Dr Hameed is relevant to my considerations; if
it were shown that they had a ‘close association’ / were friends, then his
involvement in HCMA’s planning application would almost certainly be
considered improper. I have seen no compelling evidence to support the
contention that their relationship went beyond that of ward member and
constituent however. Further, while I accept that Dr Hameed and even HCMA as
whole might be Labour supporters14, I would have expected Councillor
Choudhury (as a senior member of the Labour Group at that time) to have been
able to offer some evidence of a relationship between the two had the Labour
Party / Councillor Emmett been using Jacques Hall as a ‘base’. I will consider
whether Councillor Emmett’s email of 16 December 2015 amounts to a breach
of the Code below. I would comment at this stage though that Councillor

10 Mr Poole alleges that the receipt of the champagne evidences political interference in the planning
process. Councillor Prince was a Conservative member of the Council and its former Leader. In 2016
Councillor Prince was elected to the Greater London Authority; he is no longer a member of the Council
and was not a member of the Regulatory Committee that approved the application.
11 Mr M Mughal is also alleged to share an address with Mr S Mughal, HCMA’s ‘independent auditor;

this matter has been raised with the Charity Commission.


12 It should be reiterated that Councillor Emmett was not Chief Whip at this time.
13 Which I understand was agreed under a Conservative administration
14 And it is up to the Charity Commission to establish whether this went beyond that permitted; to date I

know of no such ruling

14
Please note that this is a confidential draft report with provisional findings and recommendations

He is a very talented, articulate young man and can speak


diplomatically to satisfy both sets of communities.”

5.26 Councillor Duddridge15 responded to Councillor Javed’s email as follows,


copying in Councillors Jones, Emmett and Athwal:

“At no point did I decide I would not turn out, it was advice given to me
by both the Leader and the Chief Whip. Of course we all have to make
decisions, yet with Gurdial [Councillor Bhamra] as Mayor not a single
fellow councillor has no Labour ward colleagues in a marginal ward.
When did I ever claim the Muslim community are not my constituents?
Plus, how do you know I would support the application in any case.
Our electoral success relies on us being strategically intelligent not just
make decisions because they are character building. However, if no
substitutes are forthcoming I will of course be there. I have not and will
not miss a single meeting if it can be avoided, in fact I have already
subbed in for an extra two on your committee Councillor Javed.”

The exchange appears to have ended when Councillor Athwal then emailed all
parties: “Thanks Lloyd. [Councillor Duddridge]. End of conversation please, that’s
how we fall out. This is a great time to be a Labour Councillor locally, lets enjoy
it.”

5.27 When the relevant Regulatory Committee meeting did subsequently take place,
on 27 July 2016, Councillor Duddridge was in attendance. Apologies for absence
were received though from Councillors Ahmed (Labour), Chaudhary
(Conservative), Hayes (Conservative), Merry (Labour) and Stark (Conservative);
Councillors Z Hussain, Mrs Huggett, Best, M Ahmed and Canal substituted
respectively. The application relating to 10-14 Mulberry Way was not considered
however, having been withdrawn prior to the meeting16. The application was
eventually dismissed at appeal on 31 January 2017.

5.28 Councillor Choudhury told me that this was a clear example of the Labour Group,
through Councillor Emmett, politicising the Council’s planning process.
Councillor Choudhury said that planning decisions are meant to be made by a
quasi-judicial and objective committee; the strategic use of substitutes as
demonstrated above suggests that the Labour leadership is deciding what
outcomes they want from certain planning applications and then choosing which
members should attend to make it most likely that the desired decision is
achieved; Councillor Choudhury said “it is some sort of predetermination…it is
immoral and a breach of the Code.”

15 Councillor Duddridge lost his seat at the May 2018 Local Election; I will continue to refer to him as a
councillor for the purposes of this report.
16 The planning officer report initially recommended approval, however in discussions prior to the

meeting it was established that the applicant was not prepared to enter into a 25-year lease for the
provision of car parking to be used in conjunction with the development. In the absence of a
commitment to provide parking over the long term the Council considered that the proposal would pose
an unacceptable risk to highway safety and convenience and would adversely affect the amenity of
nearby residents

16
Please note that this is a confidential draft report with provisional findings and recommendations

5.29 Councillor Choudhury acknowledged that in this instance, the decision to


substitute Councillor Duddridge from the Committee against his own wishes was
less about seeking a particular outcome in relation to the planning application,
and more about ensuring that Councillor Duddridge was not involved in making
a decision that was likely to be very controversial within his ward; it was a political
decision made in order to get a councillor in a marginal seat away from a
controversy. Councillor Choudhury said that while this might be considered less
serious, he still found it very concerning and an improper use of substitutes.

5.30 Councillor Jones told me that he had shared Councillor Choudhury’s concerns
about the use of ‘political substitutes’. Councillor Jones said that in the past, if a
member of any Committee could not attend a meeting then they were individually
responsible for finding a suitable substitute (in terms of planning, this means
getting another councillor who has received the necessary training). Councillor
Jones said that there were incidences of councillors sending in their apologies at
late notice without having arranged a substitute; in those circumstances it was
he (as Chair) who was usually left to find a replacement.

5.31 Councillor Jones said that after Councillor Emmett became Chief Whip the policy
changed: “I can’t recall exactly when the policy changed, but it was decided that
the Chief Whip would be responsible for finding substitutes. I have been chairing
Planning Committee meetings for a long time and initially in principle, I didn’t
have a problem with this change. I remember a thread of emails regarding whose
responsibility it was to arrange substitutes and I was happy to allow Councillor
Emmett to deal with it. It became a cause for concern when members were giving
their apologies and not attending meetings for applications that were
controversial in their own ward and yet they would publicly attend other events
on the same evening. The motivation for this could be a mixture of two things;
deliberately substituting people from the planning committee to protect them from
emotive controversial applications within their own ward or carefully choosing
councillors who you think will be most inclined to vote the way you want them to.”

5.32 Councillor Jones said that on those occasions where members were substituted
despite clearly being available to attend, he did not know whether the changes
were driven by Councillor Emmett (as Chief Whip), the leadership of the Labour
Group or the individual councillors themselves; on the occasion relevant to this
investigation though it was clearly not Councillor Duddridge who made the
decision. Councillor Jones added that Councillor Emmett and Councillor
Duddridge were friends and active members of Ilford North Labour Party.
According to Councillor Jones, Councillor Emmett arranged for Councillor
Duddridge to be substituted on a number of occasions, almost certainly in an
attempt to protect him politically from being involved in controversial decisions
that might have impacted on his chances of being re-elected. Councillor Jones
said that while he was sure that Councillor Emmett was not personally benefitting
in any way by doing so, it did concern him that Councillor Emmett appeared to
give preferential treatment to certain Labour members (by keeping them out of
the firing line) whilst not doing it for others.

5.33 Councillor Emmett told me in the first instance that Councillor Jones was
mistaken when claiming that he, as Chief Whip, had taken sole responsibility for

17
Please note that this is a confidential draft report with provisional findings and recommendations

finding substitutes. Councillor Emmett said that the responsibility still rests with
the individual members to find a suitable replacement if they are unable to attend
a meeting. He did confirm though that he has perhaps been a bit more hands on
than previous Chief Whips, pointing out that his job is to be the business manager
of the Labour Group and to deliver a coherent, united, loyal team for the Leader
and the Cabinet. Councillor Emmett said that as Chief Whip he has tried to
ensure that the Labour Group always had full attendance at Committee meetings
and therefore he has said to members that if they know of a problem they should
contact him so that he can try to find a suitable substitute. Councillor Emmett said
that the current arrangements were far from ideal, especially as it often involved
him having to act as substitute (though not on Planning, as he has not received
the necessary training). Councillor Emmett provided me with a copy of a paper
he had written entitled ‘Fixed substitutes’, which recommends that the Group
appoint fixed substitutes on all committees. This would ensure that all members
know which Committees they might be called on to act as a substitute, thereby
enabling them to keep up to speed on the matters relevant to that Committee and
prepared to make informed decisions when called on to do so. Councillor Emmett
said that the Group have not yet adopted this.

5.34 Councillor Emmett said that in terms of the Planning / Regulatory Committee,
there is always only a limited pool of councillors who are able to substitute
because only members who have received the necessary training can do so.
Councillor Emmett said that in terms of the email exchange detailed above; he
believes that he had a discussion with both Councillor Duddridge and Councillor
Athwal about the matter prior to sending the email. Councillor Emmett told me:
“It was quite a delicate issue. A brand-new councillor [Councillor Duddridge] had
worked hard to get to know his ward and it was his idea that he should be on the
Regulatory Committee. Oftentimes, things go to a Committee that are important
to your ward and important to you [as a councillor], but you’re not on that
Committee. You want to be seen to be supporting your Ward so you might ask a
committee member to stand down so that you can go to the relevant meeting and
vote on the matter… in this instance there was an element [of the opposite];
withdrawing Councillor Duddridge because of the emotive situation he was in.
He was a new member and he’s in a ward that isn’t heavily Labour and has never
historically been Labour, so the Group didn’t want him to be seen to make a
decision that could alienate his voters. There was a decision going to be made
that would almost certainly upset a vast proportion of his electorate, so I made a
general request for a substitute; not asking for a particular person, just someone
with the relevant training on the circulation list.”

5.35 Councillor Emmett strongly denied the allegation that the decision to substitute
Councillor Duddridge was taken in order to achieve a particular outcome in
relation to the planning application; he is well aware that planning decisions
cannot be predetermined and members cannot be ‘whipped’. Councillor Emmett
acknowledged though that the decision to substitute Councillor Duddridge17 was
taken for a political purpose; to protect Councillor Duddridge from being involved
in a controversial decision that might detrimentally impact on his ability to be re-

17
It should be reiterated that in the event, Councillor Duddridge was not substituted and did attend the
meeting

18
Please note that this is a confidential draft report with provisional findings and recommendations

elected in a marginal ward. Councillor Emmett said that as far as he was aware
the Group were entitled to do this; it is for the Labour Group to decide which of
its representatives sit on the various committees and the law allows them to
change that on a per meeting basis. Councillor Emmett said that he could
understand why the use of substitutes might cause people concern given the
nature of the allegations; in his view it re-enforces his belief that using fixed
substitutes would be beneficial.

Additional matter

5.36 Following the publication of the email exchange detailed above on social media,
the Council’s Monitoring Officer received an anonymous complaint about
Councillor Emmett’s conduct as follows;

‘The first email, dated 25 July 2016, shows Councillor Roy Emmett
discussing the planning application for a mosque in Roding ward, where
he says it is ".. believed best " that Councillor Lloyd Duddridge should not
be on the committee which considers that specific application. Councillor
Emmett's request for a substitute member to serve is disputed by
Councillor Javed in a reply on 25 July on the grounds that "The Muslim
community are also his constituents and they expect their representatives
to speak on their behalf.” The pressure exerted by Councillor Emmett,
the Chief Whip of the ruling group, on one councillor, not to decide on a
particular planning decision and to replace them with a substitute,
revealed by the July 2016 email exchange, breaches the prohibition on
planning decisions being subject to a party whip and not being decided
on their own merits. See the statement on page 10 of Probity in Planning
of the Local Government Association that use of political whips to
influence the outcome of a planning application is likely to be regarded
as maladministration. The reason Councillor Duddridge was removed
from the committee was not because he had a predetermination for or
against the application, as in an email of July 25 [where] he states " Plus
how do you know I would not support the application in any case”
Therefore in improperly attempting to influence a decision that should not
be whipped, Councillor Emmett has broken Part 2 of the Redbridge Code
of Conduct.

The statement by Councillor Duddridge on July 25 " At no point did I


decide not to turn out, it was advice given me by both the leader and the
chief whip" indicates Leader Athwal has also contravened planning
guidelines to refrain from whipping planning decisions . As does the email
sent from Cllr Athwal to Cllr Duddridge on July 25th saying "End of
conversation please , that's how we fall out", implying that failure to
comply with his wishes will have adverse consequences on his political
career. The actions shown here by Cllr Athwal breach the Redbridge
Code Part 2, to serve only the public interest and to lead to support these
principles by example. It also breaks the provision in part 3 not to bully
any person and part 5 to conduct yourself in a manner which could
reasonably be regarded as bringing your office or the council into
disrepute. The attempt to predetermine a planning application by Cllr

19
Please note that this is a confidential draft report with provisional findings and recommendations

Athwal and Emmett in the emails also breach part 6a of the Code
stipulating councillors "must not use or attempt to use your position as a
Member to improperly confer on , or secure for yourself, or any other
person , an advantage or disadvantage" The emails indicate there was a
predetermination to support the Woodford mosque on the part of the
Leader and the Chief Whip , shown by their determination to remove
Councillor Duddridge from the committee on the date due to decide its
approval . The reply by Councillor Duddridge that "our electoral success
depends on our being strategically intelligent.." also indicates planning
decisions are made by members of the ruling group on party political
grounds, rather than in the public interest. Decisions made for political
advantage have been found by the courts to be illegal, as in the case of
Porter v Magill’

This complaint has not been formally referred for investigation; indeed, it is not
within the scope of my investigation to make any recommendations with regards
Councillor Athwal’s conduct. The Monitoring Officer has indicated though that the
existence of the complaint and my thoughts on those aspects that relate to my
investigation should form part of this report.

5.37 Based on the evidence I have seen I am satisfied that Councillor Emmett, acting
as Chief Whip, sought a substitute for Councillor Duddridge so that he would not
have to take part in a decision concerning an application for a new mosque within
his ward. The investigation has established that Councillor Duddridge was
available and willing to attend, however the Labour Leadership (through
Councillor Emmett) decided that the use of a substitute would be politically
advantageous.

5.38 Having said that, I am also satisfied that this decision was not taken on the basis
that Councillor Emmett was seeking to in to influence the actual planning decision
being made or ‘whip’ his Group into voting a particular way; I have seen no
compelling evidence to support the allegation that any member was
predetermined in relation to the application referred to. I consider it relevant the
email requesting somebody to volunteer to take Councillor Duddridge’s place
was sent to the entire ‘pool’ of members who were sufficiently trained to substitute
onto the Regulatory Committee. I consider it far more likely that Councillor
Emmett sought a substitute in order to minimise the impact an unpopular decision
might have on Councillor Duddridge’s future electoral success18. I will consider
below whether this amounts to a breach of the Code.

Matters related to Councillor Emmet’s role in the Labour Group’s selection


process prior to the 2018 Local Elections.

5.39 In February 2017 Councillor Emmett wrote his ‘Chief Whip’s report’ in relation to
Councillor Choudhury (the report). The report was sent to the Labour Group’s
assessment team to assist them in choosing who would stand for the Labour
Party in Redbridge at the Local Council elections in May 2018. Councillor

18it seems that a decision either way was likely to upset a significant number of Councillor Duddridge’s
constituents

20
Please note that this is a confidential draft report with provisional findings and recommendations

Emmett’s report included numerous comments that were very critical about
Councillor Choudhury, both in terms of his contributions as a councillor and his
character. Councillor Emmett did not recommend that he be selected again as a
Labour candidate.

5.40 Councillor Emmett told me at interview: “My Chief Whip’s report of Councillor
Choudhury was not great and there were three other members who also got
adverse reports at that time. I am required to produce these reports and I try to
write them taking into account all matters. It is near impossible to form close
relationships with all councillors and being my first year as Chief Whip, I was
heavily dependent on records. I also talked intimately with the Leader [Councillor
Athwal] and the reports were produced in conjunction with the leadership. I had
only been doing the job since March and these were produced in October, so I
didn’t want to put my name to something that I didn’t understand.”

5.41 Councillor Choudhury was provided a copy of Councillor Emmett’s report on 3


March 2017, the evening before his selection interview. Councillor Choudhury
told me that Councillor Emmett’s “half-truths and outright lies were a complete
shock to me.” Councillor Choudhury said that when he then went to his interview
the following day it was clear that the panel had already decided that he would
not be reselected, no doubt because of Councillor Emmett’s report.

5.42 On 4 March 2017, Councillor Choudhury emailed Councillor Emmett, copying in


Labour Party officers, to formally challenge the content of his Chief Whip’s report.
In a lengthy and detailed email, Councillor Choudhury disputed each of the
criticisms levelled at him in the report and challenged Councillor Emmett to prove
his assertions. The email ended: “You totally fail to substantiate any of the
allegations you make against me. It would appear that you rely solely on idle talk
and pub gossip. I take this opportunity to invite you to evidence your allegations
or rectify all your mistakes forthwith. Otherwise I will not have any choice other
than to seek a legal remedy to the damage you have caused to my character and
person.” Councillor Choudhury said that Councillor Emmet never responded.

5.43 On 23 March 2017, Councillor Choudhury engaged a solicitor to write to the


Labour Party to set out what he saw to be the flaws in the selection process and,
in particular, Councillor Emmett’s report. Councillor Neil Zammett and Councillor
Anne Sachs, who were Councillor Choudhury’s colleagues in Chadwell Ward
both wrote in support of Councillor Choudhury’s candidature, questioning some
of Councillor Emmett’s comments.

5.44 As part of the selection process Councillor Bert Jones (as Branch Secretary) had
also written Councillor Choudhury a testimonial for the attention of the
assessment panel. Councillor Jones’ report was very complimentary, both about
Councillor Choudhury’s character and his work as a Labour Group councillor.

5.45 In his complaint Councillor Choudhury said that when Councillor Emmett became
aware of Councillor Jones’ report he threatened Councillor Jones, demanding
that he retract it.

21
Please note that this is a confidential draft report with provisional findings and recommendations

5.46 This was confirmed by Councillor Jones, who told me that immediately after a
Labour Group Executive meeting, Councillor Emmett called him into his office 19
to discuss Councillor Choudhury’s candidature. Councillor Jones said that
Councillor Emmett told him that if he stood by the report he had written supporting
Councillor Choudhury, his political career would be ruined and he would be
ruined. Councillor Jones said that he refused to be threatened and left the
meeting; he told me that he was so shocked however that he made a
contemporaneous note detailing the exchange immediately afterwards.
Councillor Jones added that since this threat was made, he has been removed
as Chair of Planning and then deselected from Goodmayes ward under unusual
circumstances; he did tell me though that he does not know whether Councillor
Emmett was ‘behind it’ and suggested that it was more likely Councillor Athwal.20

5.47 Councillor Emmett confirmed at interview that he had called Councillor Jones into
his office to talk to him about the testimonial he had written for Councillor
Choudhury: “He was branch secretary and he wrote a report that was inaccurate.
I got the papers from Councillor Choudhury’s solicitors saying that my report was
at odds with that of the branch secretary’s. On reviewing the branch secretary’s
report, I found that he had claimed that Councillor Choudhury had attended
training, but I had previously obtained a list that showed that Councillor
Choudhury had not been to a single training session. I confronted Councillor
Jones on this matter and asked him where he got his information from, even
telling him about the training session list of attendees I had. I was giving him a
chance to save his reputation and distance himself from this matter but he
refused, saying that he would stand by his report. I concur that I told Councillor
Jones that when it goes to court [as a result of Councillor Choudhury’s legal
action] I would demonstrate that he had lied in his statement. When I told him he
would be ruined, I meant in terms of being exposed as lying when it went public.
I was not saying that I would see to it that he was ruined.”

Councillor Choudhury told me that the Labour Party’s lawyers eventually made
him an offer on 19 December 2017 ‘after months of litigation’. The proposals
included Councillor Choudhury being be interviewed by a fresh panel
(assessment team) on 25 January 2018, who would not have access to the Chief
Whip’s report. Councillor Choudhury said that Councillors Emmett and Athwal
were not happy about the Labour Party’s proposal and did what they could to
ensure that he would be discouraged from seeking reselection. Councillor
Choudhury confirmed that he eventually took the decision not to seek the
candidature.21

19 Which is in the Town Hall


20 Councillor Jones told me that his Chief Whip’s report (as drafted by Councillor Emmett) included the
comment that he and Councillor Athwal had been forced to remind Councillor Jones of his responsibilities
as a Committee Chair, in direct contrast to his having claimed it to be a confidential meeting. Councillor
Jones said that he made a complaint to the Labour Party both about that, Councillor Emmett’s ‘threat’
and his deselection from the Goodmayes ward. It should be noted that Councillor Emmett’s report about
Councillor Jones was largely positive and that it did recommend his appointment.
21 This was in part due to the way in which he felt he was being bullied and in part because he did not

wish to compete against Councillor Jones for the one remaining seat in Chadwell ward; the other two
seats in the ward had been restricted to female candidates only.

22
Please note that this is a confidential draft report with provisional findings and recommendations

5.48 Councillor Sachs told me that the dispute between Councillor Choudhury and the
Labour Party, which came about as a result of Councillor Emmett’s report, meant
that the selection process for Chadwell ward did not take place until 8 weeks
before the election, causing her a great deal of stress and anxiety.

5.49 Councillor Choudhury told me that he was not the only Labour group councillor
who had been targeted by Councillor Emmett, saying that Councillors Shakil
Ahmad, Mohammed Ahmed and Barbara White also found that he had effectively
used his Chief Whip’s report to conduct a character assassination in order to get
rid of them. Councillor Choudhury said that he was confident that this was done
at Councillor Athwal’s behest, however he could not prove this and so had not
made a complaint against him.22

5.50 During the course of the investigation, the Council’s Monitoring Officer passed
me an email from Councillor White23 in which she expressed serious concerns
about the way in which she had been treated during the selection process, both
by Councillor Emmett and Councillor Athwal.24 Councillor White told me that
Councillor Emmet lied about her on his Chief Whip’s report; she also alleged that
he worked in conjunction with Councillor Athwal, who she alleges deliberately
misled the assessment panel in order to secure her deselection and cover up his
own failings.25

5.51 Councillor Emmett told me that the four members who received negative
reports26 did so because there were genuine issues with their performance as
councillors. “I can’t comment on the suggestion that I made these reports
because the Group no longer wanted them in. As far as I’m concerned, I produce
what I believe to be an accurate report of the person and their behaviour and if
in any way that report is inaccurate, they can go through the appeals process,
and express their concerns before the assessment panel. I can understand
Councillor Choudhury’s displeasure about his report.”

5.52 Councillor Emmett made the point at interview that he does not see his role as
Chief Whip as his ‘conducting Council business’. Councillor Emmett said that he
is appointed to the position by the Group and what he does is Labour Party /
Group business.

5.53 When asked why he felt that these fell within the jurisdiction of the Council’s Code
of Conduct (rather than being solely a matter for the Labour Party to deal with),

22 Councillor Choudhury said that a few years ago he was in Councillor Emmett’s ‘position’, in that he was
used by Councillor Athwal to maintain control within the Party. Councillor Choudhury provided the
investigation with emails from several years ago that he claims evidences Councillor Athwal’s conduct,
emails that he says will form part of a pending legal action. These emails fall well outside the jurisdiction
of my investigation and therefore I will make no further reference to them in this report.
23 Councillor White stopped being a councillor in May 2018; however, I will continue to refer to her as

such for the purposes of this report.


24 Again, any allegations against Councillor Athwal fall outside the scope of this investigation. However,

my reasoning below in relation to the allegations against Councillor Emmett may assist the Monitoring
Officer in her considerations as to what, if any, action need be taken.
25 Again, Councillor White told me that she had made a complaint to the Labour party about this matter

but received no substantive respone.


26 As listed by Councillor Choudhury in paragraph 5.49)

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Councillor Choudhury made the point that the local Labour Party only ever
appoints a sitting councillor as the Chief Whip. He told me: “It is to be noted that
Councillor Emmett was not merely writing a report but was providing a ‘reference’
about me in his role as a Councillor to an external body / individuals who
understandably would have taken his assertions as facts. Councillor Emmett very
clearly lied about many things including me allegedly trying to use my privileged
position as a Councillor to access someone’s file. The Nolan Principles of Public
Life require that Councillors act Objectively and Honestly. It is abundantly clear
that Councillor Emmett in providing the false reference about me did not act in
such a manner, which is acknowledged in the Labour Party’s lawyer’s letter dated
19th December 2017 which stated that they would have an ‘objective’ report
written by somebody else thus acknowledging that Councillor Emmett’s was not.
Unfortunately, by that time it was too late as Councillor Emmett had done
irreversible damage to me.” I will consider this matter further below.

Matters related to the allegation that Councillor Emmett bullied and intimidated
Councillor Choudhury relation to a ‘tweet’ he had posted on his Twitter account
on 24 November 2017.

5.54 On 24 November 2017, Councillor Choudhury tweeted the following:

5.55 Councillor Choudhury told me that he had been returning from Friday prayers
when he was approached by a distressed constituent who asked him what he
(as his ward councillor) was going to do about all the leaves on the pavement.
Councillor Choudhury said that he reported the matter to the Council via email;
he also tagged the Council into his Tweet as this was another way of reporting
such issues.

5.56 On 27 November 2017, Councillor Emmett emailed Councillor Choudhury as


follows:

“Dear Councillor Choudhury. It has been brought to my notice that you


used your Twitter account to post a photo of fallen leaves in Grove
Road with the comment “Needs urgent cleaning please”. This is a

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direct reporting procedure to the relevant department on the


Redbridgei page which is intended for this use. It can be used by
everyone and elected members should most certainly use it. When
Twitter is used instead it is not likely that the cleansing department will
see it, but anybody else can and will, especially if the posting is re-
tweeted. I am concerned on three levels;

1. The problem (the fallen leaves) will go unreported and therefore not
be dealt with.

2. It shows the LBR [the Council] in a bad light

3. This in turn reflects badly on the Labour administration and risks


bringing the Labour Party into disrepute

I need hardly tell you that these are very serious concerns. I wish to
discuss this very serious matter with you and would ask that you;

a. Acknowledge receipt of this email

b. Offer two dates when we could meet in my office for the discussion.

I await your response.

Councillor Roy Emmett. Chief Whip, Redbridge Labour Group”

5.57 Councillor Choudhury said that Councillor Emmett’s aggressive and bullying
response to his tweet was no doubt related to his ongoing action against the
Labour Party (as set out above). Councillor Choudhury drew my attention to a
tweet from Councillor Kayer Chowdhury, which showed pictures of Conservative
leaflets littering the roads and pavement; Councillor Chowdhury commented “Hi
@RedbridgeLive, can you flag this up to our cleansing team, please. 100s of
these leaflets strewn all over Gaysham Avenue road and pavements, and wider
area. They appear to be leaflets for the Conservative candidates in Fullwell.”
Councillor Choudhury pointed out that no action was taken with regards this
tweet, demonstrating the double standards within the Labour Group and
supporting his contention that he was being specifically bullied by Councillor
Emmett.

5.58 Councillor Choudhury responded to Councillor Emmett’s email with the following:

“Roy [Councillor Emmett], I have reported it using the facility on


Redbridgei on Friday as well as report it there and then via Twitter and
am hopeful it will be cleared very soon. I would suggest you stick to
your job and kindly leave me to do mine and stop sending unwarranted
and frankly intimidating emails.”

5.59 Councillor Choudhury told me that he ignored Councillor Emmett’s subsequent


efforts to contact him on the matter: “He kept emailing me, said I had to see him
otherwise he would do a disciplinary on me; people even told me he was loitering

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around my door and I got quite panicky. I had several emails and unwanted
contact from Councillor Emmett despite me informing him that he should stop”.

5.60 Councillor Choudhury provided me with a couple of examples, one being an


email dated 31 December 2017 in which Councillor Emmett reminded Councillor
Choudhury that if he did not agree a date to resolve the matter informally, he
would be obliged, under Redbridge Labour Group rules, to begin formal
proceedings. In the email Councillor Emmett pointed out that the rules allowed
him, as Chief Whip, to form an investigating panel to look into Councillor
Choudhury’s conduct. Councillor Emmett told Councillor Choudhury that given
his distrust of him, he would ask for three volunteers to form the panel at the next
meeting of the Labour Group Executive.

5.61 Councillor Sachs told me that Councillor Emmett did subsequently raise the
matter at the Labour Group Executive meeting, telling those present that it was
serious disciplinary matter. Councillor Sachs said she queried this, saying it was
trivial and shouldn’t be pursued. Councillor Sachs said that no one took any
notice of what she said; the Executive requested that Councillors Singh Bola,
Merry and Hehir investigate whether there was a case to answer. Councillor
Sachs says that she understands that they all found that there was indeed a case
to answer.

5.62 Councillor Choudhury said that he eventually had to go to his GP due to feelings
of stress and anxiety over the way in which he was being harassed. On 16
January 2018, Councillor Choudhury emailed the Council Leader’s PA, copying
in the among others the Council’s Chief Executive and Monitoring Officer: “After
ten months of racial harassment by a fellow Labour Councillor, I have been today
signed off sick by my doctor due to heavy chest pains… please pass on my
apologies for all forthcoming council/group meetings and kindly arrange
substitutes as required”.

5.63 At the time of interview, Councillor Choudhury said that as far as he was aware
the matter was still ongoing however no one would officially confirm what was
happening, despite the fact that he had asked Councillor Singh Bola27 for an
update. Councillor Choudhury stated: “I believe that Councillor Emmett, with the
support/encouragement of [Councillor] Jas Athwal, is bullying me by proxy and
is playing psychological games to try and break me. Unfortunately, this has
somewhat worked as I have been signed off sick since the middle of January and
am on prescribed anti-depressants as a direct result of Councillor Emmett’s
negative treatment of me for over a year.”

27Councillor Choudhury told me that Councillor Varinder Singh Bola was the Labour Group Secretary
and had volunteered to be on the investigating panel.

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6 Have there been failures to comply with the Code?


6.1 Councillor Choudhury’s complaint about Councillor Emmett’s conduct was
clearly about a serving councillor and actions that took place during his term of
office. The complainant therefore might well have assumed that his concerns fell
within the scope of the standards framework.

6.2 Before I can consider whether Councillor Emmett’s conduct amounts to a failure
to comply with the Code of Conduct however, there is a complicating factor that
must be considered; could Councillor Emmett be said to have been acting in his
official capacity when the alleged conduct took place?

6.3 The Code, in defining the scope of its operation, uses ordinary descriptive
English words. Their application is inevitably fact-sensitive and so whether or
not a member is acting in their official capacity calls for informed judgment with
reference to the facts of a given case.

Official Capacity

6.4 Section 27(2) of the Localism Act 2011 requires all relevant authorities to adopt
a code of conduct "dealing with the conduct that is expected of members ... when
they are acting in that capacity"; this is consistent with the wording used in the
Council’s Code, which provides.

2. (1) Subject to sub-paragraphs (2) and (3), you must comply with this
Code whenever you –

(a) conduct business of the Council (which, in this Code,


includes the business of the office to which you are elected or
appointed); or

(b) act, claim to act or give the impression you are acting as a
representative of the Council, and references to your official
capacity are construed accordingly.

(2) This Code does not have effect in relation to your conduct other
than where it is in your official capacity. […]

6.5 While I am sure that it is true to say that the electorate would expect their
councillors to adhere the highest of standards in all aspects of their lives, the
Localism Act only gives the Council’s Monitoring Officer jurisdiction to consider
allegations of misconduct when councillors are conducting Council business. The
Code only applies to members when conducting Council business or when
carrying out their constituency work; it does not seek to regulate what members
do in their private and personal lives. A distinction must be drawn between the
individual as a councillor and the individual as an individual; a councillor is not a
councillor twenty-four hours a day. Conduct that might be regarded as
reprehensible and even unlawful is not necessarily covered by the Code; a link
to that person conducting Council business is required.

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6.6 In my view, there can be no doubt that Councillor Emmett was conducting the
business of his authority when he sent the email to Councillor Jones on 16
December 2015. A councillor’s primary role is to represent their ward or division
and the people who live in it. Councillors provide a bridge between the community
and the council. As such the Code of Conduct would apply.

6.7 I consider that Councillor Emmett’s conduct in relation to the other three
allegations, which relate to his conduct as the Labour group Chief Whip, to be far
less clear cut though. The Code only applies to members when conducting
Council business, when acting as a representative of the Council or when
carrying out their constituency work. The position of Chief Whip is not a formal
role within the Council and there is no reference to it in the Council’s constitution.
A Chief Whip is an official within a political party who is responsible for ensuring
party discipline, maximising their group’s representation at Committee meetings
generally ensuring that their members turn up on time.

6.8 In offering my own views on this I recognise that the Localism Act is vague on
the key point of what acting ‘as a member of the Council’ involves. Nor do we
have any case law specifically arising from the Localism Act to assist us on this.
What we do have, however, is well established case law from earlier hearings
under the previous standards regime. Whilst the wording in Localism Act varies
slightly from the previous model codes of conduct, the Council have actually
adopted the exacting wording as adopted in the previous national Code. As such,
cases concerning the former model codes remain of relevance to how councils
must interpret what ‘official capacity’ means; I have set out some general
considerations and precedents in Annex 1 of this report.

6.9 Councillor Choudhury has argued that Councillor Emmett’s alleged bullying and
harassment of him should fall within the jurisdiction of the Code on the basis that:

a. Historically, the Chief Whip has always been a member of the Council.

b. Councillor Emmett’s Chief Whip’s report was effectively a reference


about him from a sitting councillor, whose position on the Council
would add gravitas to his comments.

c. Councillor Emmett based some of his comments in the Chief Whip’s


report on correspondence between Councillor Choudhury and the
Council’s Chief Executive that he must have obtained from the Chief
Executive.

d. Councillor Emmett ‘threatened’ Councillor Jones if he did not withdraw


his own testimonial while on Council premises.

e. Councillor Emmett’s comments in the report and the disciplinary action


in relation to the Tweet directly related to Council business because it
concerned his (Councillor Choudhury’s) conduct as a councillor.

6.10 In terms of the allegation that Councillor Emmett bullied and intimidated
Councillor Choudhury in relation to his post on Twitter and the allegation that he

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used his position improperly to cause Councillor Choudhury a disadvantage in


relation to the Labour Group’s selection process prior to the 2018 Local Elections;
I am not convinced that either is covered by the Code of Conduct. The legislation
is clear that being known as a councillor is not sufficient to engage the Code of
Conduct unless the context (and not simply the alleged behaviour) is such as to
bring the individual within the ambit of the Code. As an example, Standards
Board for England guidance and decisions made by the First Tier Tribunal (and
prior to that, the Adjudication Panel for England) were clear that matters related
to electioneering, even by sitting councillors, did not engage the Code because
they related to Political Party rather than Council business.

6.11 As an extension of that, and given the consistent decisions taken in the courts
which suggest that the what constitutes ‘carrying out the business of the office of
councillor’ should be narrowly construed, it is my view that matters of Political
Party candidate selection and internal disciplinary processes fall outside the
jurisdiction of the Localism Act; as such it would be inappropriate for me to
consider the veracity of the concerns raised. While I note that Councillor Emmett
was a councillor at the time (and indeed it seems he would need to be a sitting
councillor in order to be the Group’s Chief Whip), he was not conducting Council
business or acting as a representative of the Council with regards these matters.
While I have some sympathy for those involved and can understand their
frustration, such matters are for Labour Party and not the Council to address. I
note that Councillor Choudhury, Councillor White and Councillor Jones all told
me that any complaints they have made to the Labour Party over the past 18
months have been ignored. Unfortunately, any perceived failings on the part of
the Party does not mean that the Council has the ability to step in and take action.

6.12 Having said that, I am of the view that Councillor Emmett’s conduct in relation to
the allegation that he misused the Council Planning Committee’s substitution
process for political purposes does require further consideration. Although he
was clearly acting as the Chief Whip when seeking a substitute for Councillor
Duddridge, the actions taken specifically related to the consideration of
regulatory decision due to be made by a Council Committee. Guidance provided
to councillors and decisions taken by the Local Government Ombudsman
demonstrate that the ‘whipping’ of members in relation to planning matters is
unacceptable and amounts to maladministration. In those circumstances I
consider that Councillor Emmett’s conduct is so closely aligned to Council
business as to engage the Code.

Did Councillor Emmett fail to comply with the Code?

6.13 The intention of the Code is to ensure that the conduct of public life at the local
government level does not fall below a minimum level which engenders public
confidence in democracy. In adhering to the principles set out in the Code there
is an expectation that members will treat their fellow councillors with respect. This
is not to say that councillors should not be encouraged to engage in vigorous
public debate on matters pertaining to the Council; however, the impact of such
debate is diminished, rather than accentuated, when it is cast in abusive or
offensive terms.

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Code Principles

6.14 Paragraph 5: In general terms, disrepute can be defined as a lack of good


reputation or respectability. In the context of the Code of Conduct, a member’s
behaviour in office will bring that member’s office into disrepute if the conduct
could reasonably be regarded as either reducing the public’s confidence in that
member being able to fulfil their role; or adversely affecting the reputation of
members generally, in being able to fulfil their role.

6.15 Paragraph 6(a): There are many circumstances where it is proper for a member
to attempt to confer a desirable outcome, or advantage, for an individual or group.
This can often be against the wishes or to the disadvantage of others. A
councillor’s conduct would only be improper if he was to try to use his public
position to further his own private interest, to the detriment of the public interest.

Did Councillor Emmet fail to comply with the Code by emailing Councillor
Jones on 16 December 2015?

6.16 The investigation has found that on 16 December 2015, Councillor Emmett
emailed the Chair of the Regulatory Committee to indicate his support for
HCMA’s planning application. In his email Councillor Emmett is open about that
fact that the applicant had contacted him in order to request support for his
application from the Labour members. In considering this complaint, it is
important to recognise that lobbying is a normal and perfectly proper part of the
political process. Those who submit or may be affected by a planning decision
will often seek to influence it through an approach to their elected ward member
or to a member of the planning committee. As the Nolan Committee’s third report
stated: “It is essential for the proper operation of the planning system that local
concerns are adequately ventilated. The most effective and suitable way that this
can be done is through the local elected representatives, the councillors
themselves”. Any application of the Code of Conduct must take account of the
realities of the political/representative process.

6.17 Having said that, unless care and common sense is exercised by all the parties
involved, lobbying can lead to the impartiality and integrity of a councillor being
called into question. Councillor Emmett was not a member of the Regulatory
Committee and therefore he does not have a duty to ensure that he remains
objective and impartial on such matters; as a Ward member he is allowed to
express an opinion prior to any decision being made. In sending Councillor Jones
an email asking him to ‘do your best’ however, Councillor Emmett effectively
lobbying the Chair of the Regulatory Committee. When being lobbied, councillors
who are also members of the regulatory /planning committee need to avoid bias
and predetermination and take account of the general public’s (and the
Ombudsman’s) expectation that a planning application will be processed and
determined in an open and fair manner. To do this, members taking the decision
will avoid committing themselves one way or another before hearing all the
arguments. To do otherwise makes them vulnerable to an accusation of partiality.
Bias or the appearance of bias has to be avoided by the decision maker.

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6.18 As Chair or the Council’s Licensing Committee, I would expect Councillor Emmett
to have been aware of the potentially difficult situation he was putting Councillor
Jones in by lobbying him privately. In addition, the suggestion that Councillor
Jones’ decision should be influenced by the applicant’s support of both the
Council and the Labour party is contrary to the regulations. In my view Councillor
Emmett’s email was thoughtless and unwise. I am reassured that Councillor
Emmett regrets conveying his support for the application in the manner that he
did, with the evidence suggesting that he has not done so in a comparable
manner during the significant period of time since.

6.19 In considering whether the email is evidence of conduct amounting to a breach


of the Code, I am mindful that it is part of a Ward councillors role to represent
their constituents and pass on their views to the relevant decision-making bodies.
While I note the various concerns raised about the relationship between HCMA
and the Labour Group, I have seen no compelling evidence to suggest that
Councillor Emmet had an association with Dr Hameed as to make his
involvement in the matter improper. Further, while I consider the manner in which
Councillor Emmett involved himself in this matter to have been ill-judged, I am
mindful that Councillor Emmett’s medical treatment at the time impacted on his
ability to take the more usual route of presenting his view to the Committee at the
relevant meeting. Importantly, I am also not of the view that Councillor Emmett
went as far as attempting to ‘instruct’ Councillor Jones to take particular course
of action in relation to the application and note that Councillor Jones did not even
feel the need to acknowledge the email; relevant to my considerations is that fact
that Councillor Emmett was not the Chief Whip at this time. Taking all of the
above into account, I do not consider that Councillor Emmett’s conduct amounts
to a breach of the Code with regards this matter.

Did Councillor Emmet fail to comply with the Code when seeking to use a
political substitute on 22 July 2016?

6.20 The investigation has found that Councillor Emmett, acting as Chief Whip, took
the decision to seek a substitute for Councillor Duddridge so that he would not
have to take part in a decision concerning an application for a new mosque within
his ward. Councillor Duddridge was available and willing to attend, however the
Labour Leadership (through Councillor Emmett) decided that the use of a
substitute would be politically advantageous.

6.21 When considering whether this amounts to a failure to comply with the Code, it
is important to note my conclusion that the attempt to use a substitute in place of
Councillor Duddridge was not an attempt by Councillor Emmett to either influence
the decision being made by the Regulatory Committee or ‘whip’ his Group into
predetermining the matter. Such conduct would be completely improper and
place the Council at risk of legal challenge / a finding of maladministration.

6.22 Councillor Emmett indicated that it is not unusual for the Group to use substitutes
for political purposes, either so that a member avoids being involved in a decision
that might be controversial within their ward or, conversely, because they want
to be seen being directly involved in a decision that is important to them or their
constituents. While I can understand this from a political point of view, I am

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concerned that this is being carried out in conjunction with the quasi-judicial
decision making carried out by the regulatory committees. While the intent might
not be to seek a specific, predetermined outcome, the public perception of the
Labour Group / Councillor Emmett’s conduct might be different.

6.23 That said, it is undisputed that the responsibility for deciding which of their
members sit on which committees is taken by the political parties themselves. In
R (on the application of Doug Carnegie (on behalf of The Oaks Action Group) v
London Borough of Ealing & Acton Regeneration Group Ltd the claimant alleged
that a planning decision should be overturned because the Labour Group Whip
had arranged for a substitute to sit on the Planning Committee despite the
availability of the member being substituted; the allegation being that the Whip
wanted a particular outcome from the vote. In defence of the decision, the Council
argued that the composition of the Committee was “a political decision and is not
therefore justiciable”. The Judge in the case appeared to accept this. He said “It
was a political decision as to who attended the meeting to vote on the planning
application…. Whether there was a reasonable reason for any member being
unable to attend a committee meeting was a matter to be determined by the
political party… that decision making process is part of the democratically elected
political process and is outwith the reach of the courts.” The Judge also found
that the rule relating to substitutes: ‘Where any member of a committee, sub-
committee, or panel is unable to attend a scheduled meeting of that body” (which
is consistent with the Council’s own rules on substitutions as set out in Part 3 of
this report) had been adhered to, stating that the standing order was not limited
to cases where the member in question is physically unable to attend the
meeting.

6.24 Given the above, in particular my conclusion that the attempt to substitute
Councillor Duddridge was not carried out in order to influence the actual planning
decision being made or ‘whip’ the Group into voting a particular way, I do not find
that Councillor Emmett failed to comply with the Code with regards this matter.
That said, I would urge Councillor Emmett to consider carefully the inherent risks
involved with using substitutes in such a manner when regulatory decisions are
being made, both reputationally and administratively.

7 Provisional Recommendation
7.1 It is my provisional view that Councillor Emmett was not acting in councillor
capacity in relation to the allegations set out in paragraph 1.2 and therefore the
code was not engaged. While I consider that those matters referred to in
paragraph 1.3 do fall within the jurisdiction of the standards framework, my
provisional view is that Councillor Emmett’s conduct did not amount to a breach
of the Code. I therefore recommend that the Council take no further action with
regards these matters.

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Annex 1

Considerations related to ‘official capacity’

To recap briefly (with my emphasis):

Section 27(2) of the Localism Act 2011 requires all relevant authorities to adopt a code
of conduct "dealing with the conduct that is expected of members ... when they are
acting in that capacity."

The Council's Code expands on this slightly, stating that the provisions of the Code also
apply “When a member of the Council acts, claims to act or gives the impression of
acting as a representative of the Council”.

It is clear then that the Code does not seek to regulate what members do in their purely
private and personal lives. The Code only applies to members when they carry out
Council business, including constituency work. While this wording varies slightly from
the previous model codes of conduct28, cases concerning the former model codes
remain relevant to how councils interpret what ‘official capacity’ means.

Precedent cases

In Livingstone v Adjudication Panel for England [2006] Mr Justice Collins considered


the scope of the Code in relation to when a councillor is acting in their official capacity.
Mr Justice Collins stated at paragraphs 27 to 29:

“Conduct which is regarded as improper and meriting some possible sanction


will often be constituted by misuse of a councillor’s position. He may be
purporting to perform his functions if, for example, he seeks to obtain an
advantage by misusing his position as a councillor. Such misuse may not
amount to corruption; it may nonetheless be seen not only to be improper but to
reflect badly on the office itself. If the words “in performing his functions” are
applied literally, it may be said that such misuse, and other misconduct which is
closely linked to his position as such may not be covered.

… Thus where a member is not acting in his official capacity (and official capacity
will include anything done in dealing with staff, when representing the council,
in dealing with constituents’ problems and so on), he will still be covered by the
Code if he misuses his position as a member. That link with his membership of
the authority in question is in my view needed. This approach is very similar to
that adopted in Scotland and in my judgment accords with the purpose of the
Act and the limitations that are appropriate. It is important to bear in mind that
the electorate will exercise its judgment in considering whether what might be
regarded as reprehensible conduct in a member’s private life should bring his
membership to an end in due course…

28Namely that prescribed by the Local Authorities (Model Code of Conduct) Order 2007; and before
that, the 2001 model code.

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It seems to me that unlawful conduct is not necessarily covered. Thus a


councillor who shoplifts or is guilty of drunken driving will not if my construction
be followed be caught by the Code if the offending had nothing to do with his
position as a councillor. Section 80 of the Local Government Act 1972 provides
for disqualification for election to a local authority of those who have within 5
years before the date of election been convicted of any offence which has
resulted in a sentence of 3 months imprisonment (whether or not suspended) or
more. Parliament could for example have provided that conviction of any offence
carrying imprisonment whatever the sentence should lead to consideration of
some punitive action by the Standards Board. It seems to me that if it is thought
appropriate to subject a member of a local authority to a code which extends to
conduct in his private life, Parliament should spell out what is to be covered.”

The Livingstone judgment was considered in detail in “Bartlett v Milton Keynes Council
[2008] APE 0401” in an appeal from the local standards committee. In the Tribunal’s
view, the Livingstone judgment established that for a councillor to be acting in an official
capacity:-

• the councillor should be engaged in business directly related to the


Council or constituents;

• the link between the councillor’s office and the conduct should have
a degree of formality.

In the decision of the Adjudication Panel for England in APE0458 (Sharratt), the tribunal
observed:

“The dedication of many councillors to activities in public life means that


often their social and professional lives are shaped by their roles as
councillors and in turn shape how they approach those activities.
However while they may always be conscious of their office as councillor
and carry out a wide range of activities in which that is a factor in their
thinking, no reasonable observer would conclude that they are carrying
out the business of the office of councillor; a test which, in the light of the
decision in Livingstone, should be narrowly construed.”

Judge Ward further considered what constituted ‘official capacity’ in Upper Tribunal
Case No. GLSE/1111/2010 MC v Standards Committee of LB Richmond. Judge Ward
noted that the terms of the Code that applied in the Livingstone judgement were slightly
different to that applied since 2007 (and was similar to that in the Localism Act). In his
view, it was wholly possible for members to interact with Council officers in their private
capacity if they were not conducting the business of their authority at the time. In
addition, it was considered possible for a councillor to interact with staff if nature of their
involvement was clearly personal; as a rule of thumb, if the councillor was dealing with
a member of staff as a recipient of a Council service, the member would generally be
considered to be acting in their personal capacity.

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