Councillor loses bid to have code of conduct decision judicially reviewed

A High Court judge has rejected a councillor’s application for permission to apply for judicial review of a decision by a standards committee that he had breached the council’s code of conduct.

The case of Dennehy, R (on the application of) v London Borough of Ealing [2013] EWHC 4102 (Admin) centred on comments posted by Cllr Benjamin Dennehy about residents of Southall on a blog on 12 March 2012.

The blog included comments such as: “Southall is a constant on the public purse in Ealing. It is home to the worst concentration of illegal immigrants in the UK. 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 standards committee at Ealing Council opened a formal investigation after a formal written complaint from another councillor. It subsequently found that in posting the comments Cllr Dennehy had not treated others with respect and had brought the council and the office of councillor into disrepute contrary to its 2007 code of conduct.

It said the blog entry – which was widely reported in the local press and prompted a petition with 280 signatories – had raised a number of important and legitimate issues for debate but the tone of much of the content had been “inappropriate and unnecessarily provocative”.

The committee resolved that Cllr Dennehy, who was expelled from the Conservative Party following the blog and subsequently joined UKIP, should be requested to issue an appropriate apology. It also decided that a notice summarising the committee’s decision should be published in the Ealing Gazette and on the authority’s website.

At an oral hearing before HHJ McKenna, the claimant advanced two grounds of challenge, namely that:

• The committee had failed to give adequate reasons for its conclusion that the tone and much of the content of the blog had been inappropriate and unnecessarily provocative; and
• The decision of the committee was unreasonable and irrational on the grounds that the comments posted on the blog did not justify a finding that Cllr Dennehy had breached certain paragraphs in the code.

Cllr Dennehy argued that the committee’s decision infringed his fundamental right to free speech at common law and under Article 10 of the European Convention on Human Rights. He also said the reasons given by the committee in relation to the comments posted on the blog were an unjustified restriction on his right to free speech.

HHJ McKenna rejected the councillor’s application. He concluded that Ealing’s decision, although engaging Article 10, was “plainly a proportionate interference in the light of the other interests identified in the Convention”.

On the first ground, the judge said it could not arguably be said that there was a failure to give adequate reasons to the claimant on the facts of the case.

On the second ground, HHJ McKenna concluded that:

1. The 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.

2. On the face of it the finding and the sanctions did constitute a breach of Article 10.
3. The finding and the sanctions were justified under Article 10(2) since, as the report explained, the comments about Southall residents were contained in a separate section of the blog from those which raised legitimate topics of political debate. “They 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.
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4. 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”.

Gunner Cooke partner Sunil Abeyewickreme, Cllr Dennehy's lawyer, said a notice of appeal had been filed last week (27 December).

Responding to the judgment, Cllr Dennehy said: "This ruling undermines the most basic and fundamental right a democracy can have, freedom of expression. To allow the state to decide what is and what isn't political expression is a step too far. I'm proud to be labelled provocative, and if telling the ugly truth about a community is inappropriate, then so be it.

"Politics isn't about singing the praises of immigration all the time, sometimes we have to face up to its negative impacts and challenge immigrant communities to do better. As hosts we have that responsibility. I shan't shirk my duty because political correctness tells me not too."

Tom Cross of 11KBW appeared for Ealing Council.

See also: Standards and free speech - Nicholas Dobson's analysis of the Ealing case.

Name	Price (ex-VAT)		Description
Codes of Conduct under the Localism Act 2011	£25.00		This course provides practical guidance on the new ethical framework introduced by the Localism Act 2011 and the codes of conduct that local authorities are obliged to implement.