Councillors were once able to rely on the fact they had taken legal advice, and adapted their actions in the light of that advice, to protect them against charges of reckless and wilful misconduct.
At Westminster City Council legal advice was sought and the disputed scheme was altered to meet legal concerns. But the Law Lords' judgment against former leader Dame Shirley Porter means councillors can no longer rely on the defence they had sought legal advice and acted accordingly (LGC, 15 February).
The Westminster judgment blamed Dame Shirley and deputy leader David Weeks as the 'prime architect and midwife' of the disputed policy. They operated in personal and party meetings, which took place before the housing committee and council met.
Decisions taken in such informal settings used to carry no binding authority. Only decisions taken by councillors in formal council meetings and committees were regarded as having legitimacy. Members of the committee and council could vote as they wished, and were not bound to follow decisions from meetings outside the council.
But the Lords ruled that once a 'policy had been adopted by the majority party, it was to all intents and purposes bound to be approved by the committee'.
Earlier judgments asserted that parties could not restrict the discretion of councillors. The judges have now undermined the independence of elected members by assuming they are bound to follow their parties and not their own consciences.
Auditors once investigated the formal decision-making processes of the council. The Westminster auditor did not follow traditional practice, but seized personal, private and party papers. His actions have been vindicated by the judgment.
The extension of the roles of auditors and judges amounts to a decrease in the power of elected representatives.
Councillors will be subject to investigation of their activities not
only in the formal meetings of their council but also in their personal, private and party gatherings. They will probably have to keep extensive records of what they said and did in these meetings.
Many councillors may not wish to subject themselves to such time-wasting and hostile scrutiny, especially when they could be pilloried for wilful and reckless misconduct - even after taking and acting on legal advice.
Professor of government,
London School of Economics