Standards and free speech

January 8, 2014

A High Court judge recently rejected a councillor's bid to have an adverse code of conduct decision judicially reviewed. Nicholas Dobson reviews the ruling.

Immigration is a hot public and political topic. For instance the Sunday Times on 5 January 2014 reported that Nick Robinson (BBC News’ Political Editor) criticised his employer for "making a 'terrible mistake' in censoring concerns over immigration for fear . . . it would stir racism."

The same newspaper in a ‘knockout poll’ in which YouGov, competitively pitching 16 proposals by leading politicians in recent months, concluded that voters want David Cameron’s new year’s resolution to be "to ban new immigrants from claiming benefits during their first two years in Britain". And on 1 September 2013 The Independent newspaper had reported the "majority of British voters" as believing that immigration does more harm to the country than good. This was according to "an authoritative survey of more than 20,000 people" in "research commissioned by . . . former Conservative party deputy chairman Lord Ashcroft".

Councillor blog triggers standards complaint

In the local government arena, just before Christmas (on 20 December 2013) HH Judge McKenna in R (Dennehy) v. London Borough of Ealing ([2013] EWHC 4102 (Admin)) refused Ealing councillor, Benjamin Dennehy, permission for judicial review. This was after the council’s standards committee had found that in posting comments on a blog on 12 March 2012 referring to alleged local illegal immigrants Councillor Dennehy (the claimant) had not treated others with respect and had brought the council and the office of councillor into disrepute contrary to the council’s Code of Conduct (the Code).

The claimant’s blog had included the following:

"Southall is a constant on the public purse in Ealing. It is home to the worst concentration of illegal immigrants in the UK. It has gambling, drinking, drug, prostitution and crime issues unlike many other parts of London. It is a largely Indian community who say they deplore this behaviour but yet it is that very same community that harbours and exploits their own people in squalid third world living conditions. . .

The exploding population of illegal immigrants is a constant on the public purse. Illegal immigrants don’t pay tax. The legitimate immigrants exploiting them in the squalid bed sheds don’t pay tax on their rental income. If these sorts of people exploit the desperate what other scams are they perpetrating I ask? Criminality is endemic in Southall’."

The blog was "widely reported in the local press" and subsequently a "petition was signed by some 280 people condemning the claimant’s statements about the Indian community in Southall and highlighting in particular the claimant’s description of criminality as being endemic in Southall and his accusation that the Indian community were exploiting immigrants." Another Ealing councillor made a formal written complaint about the blog, alleging a breach of the council’s Code of Conduct. This led to a formal investigation in line with the council’s standards procedure conducted by Ms Jackie Adams (Head of Legal (Planning and Property)).

In her report Ms Adams indicated that "lack of proper care and sensitivity does not automatically equate to a failure to treat others with respect or necessarily bring the council and Councillor Dennehy’s office into disrepute given the importance of the right to freedom of expression". Nevertheless, she was "satisfied that the tone, style and choice of wording in the post did cause offence to some residents and Councillor Dennehy could reasonably have expected that to be the case had he reflected on the particular way in which he chose to raise the issue".

She consequently concluded that:

". . . despite the issues that Councillor Dennehy highlighted being legitimate matters for debate, the way in which these issues were raised were intemperate and, in my view, the blog can be seen as inappropriately derogatory about a whole section of the community in Ealing, thereby showing a lack of respect. I am also of the view that the result of this was that, in addition, they brought the council and Councillor Dennehy’s role as a councillor into disrepute, as evidenced by the subsequent reaction of a cross section of the community (including Councillor Dennehy’s fellow councillors and his own party)."

The Standards Committee subsequently concluded, in the light of the report of the investigating officer, the verbal contributions from the complainant, and . . . the views of both the Independent Persons, that although "the subject councillor, in his/her blog had raised a number of important issues for debate", nevertheless "the tone and much of the content of the blog had been inappropriate and unnecessarily provocative". The committee therefore agreed that the subject councillor had failed to comply with Ealing Council’s 2007 Code of Conduct for Councillors since by his blog entry he "had failed to treat others with respect and brought the Council and the office of Councillor into disrepute".

In the circumstances the claimant was "asked to issue an appropriate apology" and the standards committee agreed that "a notice summarising the committee's decision should be published in the Ealing Gazette and on the council's website as soon as possible".

Challenge

The claimant sought judicial review of the decision of the standards committee on two grounds. Firstly that the committee failed to give adequate reasons for concluding that the "tone and much of the content of the blog had been inappropriate and unnecessarily provocative". And secondly that the committee fell into error in failing to have regard to the claimant’s protected rights under Article 10 of the Convention.

The Law

Chapter 7 of Part 1 of the Localism Act 2011 deals with standards and (amongst other things) requires (at section 27(1) relevant authorities to "promote and maintain high standards of conduct by members and co-opted members of the authority". Under section 27(2) relevant authorities must in particular, adopt a code dealing with the conduct that is expected of authority members when acting in that capacity. And by section 28(1) an authority must secure that such a code, when viewed as a whole, is consistent with the Nolan principles of standards in public life.

As the judge pointed out:

"The intention of the legislation 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 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 whilst at the same time bearing in mind the importance of freedom of political expression or speech in the political sphere."

Authorities must have in place arrangements under which allegations can be investigated and on which decisions on such allegations can be made (s28(6)) and these arrangements must (under section 27(7)) include the appointment of the authority of at least one ‘independent person’ whose views (amongst other things) 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. Under section 28(11) if an authority finds failure to comply with its Code it may have regard to the failure in deciding (a) whether to take action in relation to the member and (b) what action to take. The council’s Code required members when acting in ‘an official capacity’ to treat others with respect and not to "conduct yourself in a manner which could reasonably be regarded as bringing your office or your council into disrepute".

Under section 6 of the Human Rights Act 1998 public authorities (like the council) must not act incompatibly with rights under the European Convention on Human Rights. The material right for these purposes is in Article 10 (Freedom of Expression) which includes (at Article 10(1) "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers". However, this is a ‘qualified right’ and is subject (at Article 10(2)) "to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of" amongst other things the prevention of disorder or crime and the protection of the reputation or rights of others.

In Ken Livingstone v The Adjudication Panel for England [2006] EWHC 2533 Collins J said that: "The burden is on the defendant to justify the interference with freedom of speech. However offensive and undeserving of protection the appellant’s outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of article 10(2) to render him liable to sanctions....".

And in R (Lord Carlile of Berriew and others) v The Secretary of State for the Home Department [2013] EWCA Civ 199, Arden LJ said that the ". . .value of free debate in a democratic society cannot be underestimated. It increases knowledge and understanding on national and international affairs."

However, unlike in judicial review, the court is concerned not with whether the material Convention right was taken into account but "whether the human rights of the claimant have in fact been infringed" (see Lady Hale put it in Belfast City Council v Miss Behavin’ Limited [2007] UKHL 19).

In Sanders v Kingston (1) [2005] EWHC 1145 (Admin) Wilkie J set out three key issues in cases such as the present:

Was the . . . Tribunal entitled as a matter of fact to conclude that the councillor’s conduct breached the Code?
If so, was the finding in itself or the imposition of a sanction prima facie a breach of Article 10?
If so, was the restriction involved one which was justified by reason of the requirements of Article 10(2)?

Furthermore, as HH Judge McKenna indicated, per Sanders v Kingston, ‘political expression’ or ‘the expression of a political view’ attract a higher degree of protection whilst expressions in personal or abusive terms do not attract the same higher level of protection.

Finding

The Court roundly rejected both the claimant’s contentions. As to reasons, the judge noted that "it is trite law that whether reasons which are given are adequate depends on the context and the nature of the decision". He said that it was "also clear that the adequacy of the reasons must be assessed from the stand point of an informed audience". Consequently, seen "in context, and from the standpoint of an informed audience, the reasons given here were plainly adequate". Following the methodology of Wilkie J in Sanders v Kingston, he therefore ruled that the standards committee "was plainly entitled to find, as it did, that as a matter of fact, what the claimant had said about Southall residents had failed to treat others with respect and had brought the council and the office of councillor into disrepute".

And although the standards committee’s findings and sanction did constitute a breach of Article 10, this was justified under Article 10(2). For the comments in question:

".... were not the expression of a political view, but an unjustified personal and generic attack on a section of the public. The subjects of the speech were not politicians but ordinary members of the public and, as such, the comments did not attract the higher level of protection applicable to political expressions and the comments would plainly have undermined confidence in local government, the preservation of which is a recognised aim of the Code."

Moreover:

"....the extent of the interference was on any view very limited indeed. In terms of sanctions following the finding, the claimant was merely requested, not required, to apologise and as I understand it, he has not done so and in addition the committee’s findings were neutrally reported in the local press and on the council’s website."

In the circumstances, "the council’s decision, although engaging Article 10 of the Convention, was plainly a proportionate interference in the light of the other interests identified in the Convention". Consequently, permission to apply for judicial review was refused since the application was "unarguable".

Comment

A key issue in this case was not the fact of comment on "important issues for debate" (which the standards committee accepted that Councillor Dennehy had raised) but the tone and much of the content of the blog which the committee had found "inappropriate and unnecessarily provocative". Consequently, the Code had been breached.

Article 10(1) affords broad scope "to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers" and the expression of political views attracts a higher degree of protection. However, the Court in the instant case found that material parts of the blog "were not the expression of a political view, but an unjustified personal and generic attack on a section of the public". Consequently, they were caught by the public interest qualification in Article 10(2). So although those in public office are entitled to take part in free and robust debate, they do need to make sure that their public pronouncements fall on the right side of the line.

Dr. Nicholas Dobson is a Consultant with Freeth Cartwright LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government.