Code of conduct v freedom of expression

Child evidence iStock 000004679292XSmall 146x219The High Court recently cut the disqualification period imposed on a Welsh councillor. Nicholas Dobson considers the lessons to be learned from the case for local authorities in England as well as Wales.

The famous Four Yorkshiremen sketch (celebratedly performed by Monty Python in The Secret Policeman’s Ball - the 1979 Amnesty International Benefit Gala) argued with increasing absurdity that things were much tougher of old than now.

In particular John Cleese’s Yorkshireman, in a pièce de résistance of surreal one-upmanship over his three companions, concluded of his childhood:

"I had to get up in the morning at ten o'clock at night half an hour before I went to bed, drink a cup of sulphuric acid, work twenty-nine hours a day down mill, and pay mill owner for permission to come to work, and when we got home, our Dad and our mother would kill us and dance about on our graves singing Hallelujah."

Most of us at the more mature end of the local government demographic could come up with harrowing tales of past encounters with elected members which, if not quite as pyrotechnic as Python, might at least be easier on the credibility. For, at the risk of sounding a bit like Cleese’s Yorkshireman, I don’t recall too much talk of ‘rights’ and ‘bullying’ down’t Local Government Legal Mill when I were a lad.

But that was before the Human Rights Act 1998 and Codes of Conduct in their current and recent manifestations. And member conduct falls to be judged on current norms and expectations. So it was that the conduct of Patrick Heesom, a 76 year old, long-standing Flintshire County Council councillor, became subject to detailed scrutiny and was found to fall short in various areas. For in Wales the pre-Localism Act 2011 standards regime continues.

But whilst the extensive, 54-page judgment of Hickinbottom J in Heesom v. Public Services Ombudman for Wales [2014] EWHC 1504 (Admin) reduced the disqualification term imposed by a Case Tribunal of the Adjudication Panel for Wales from two and a half years to eighteen months, its criticism of Cllr Heesom was marked.

This article takes a look at some aspects of the Heesom decision – in particular the legal tension between the regulation of member conduct and political rights of expression and the law surrounding sanctions.

Background

This is lengthy and involves detailed narrative of nine separate incidents. Key elements only therefore will be noted here. The full picture can be seen in the judgment of Hickinbottom J. As indicated, Wales continues to operate the standards regime existing in England before it was abolished from 1 April 2012 by the Localism Act 2011. Section 69(1) of the Local Government Act 2000 enables the Public Services Ombudsman for Wales (the Ombudsman) to investigate alleged failures by a member to comply with the Code of Conduct. And in March 2009 all of Flintshire Council’s Corporate Management Team submitted a complaint to the Ombudsman about the conduct of Cllr Heesom (the Appellant).

The council’s 2001 Code of Conduct contained provisions detailing requirements for the promotion of equality and respect for others and duty to uphold the law. Amongst other specific requirements, members must not do anything to compromise the impartiality of authority employees nor must they "in their official capacity or otherwise behave in a manner which could be reasonably regarded as bringing the office of Member or the Authority into disrepute". The 2008 Code of Conduct requires compliance at all times and in any capacity in respect of the ‘disrepute’ provisions. In addition members must:

  • carry out their duties and responsibilities with due regard to the principles that there should be equality of opportunity for all people, regardless of their gender, race, disability, sexual orientation, age and religion;
  • show respect and consideration for others;
  • not use bullying behaviour or harass any person; and
  • not do anything which compromises, or which is likely to compromise the impartiality of those who work for, or on behalf of, their authority.

There were nine incidents leading to findings of breaches of the Codes of Conduct. Those with which the Court agreed (in the light of the Appellant’s Convention rights to freedom of political expression under Article 10) included:

  • A ‘serious breach’ by way of failure to show respect and consideration to others where the Court agreed that the Appellant’s comments had been "a deliberate challenge and threat to the mutual trust and confidence between councillors and officers".
  • Interference in the housing allocation decision process being a failure to show respect and consideration to others and compromising the impartiality of council officers and deliberately attempting to obtain political gain at public expense by exploiting his position as councillor.
  • Failure to show respect and consideration for others on various occasions in: bullying, undermining, threatening, verbally attacking, intimidating and wrongly interfering with the role of officers.

The Ombudsman’s report, published in July 2010, ran to 232 pages and appendices and found that there was evidence of breach of the council’s Codes of Conduct sufficiently serious to warrant reference to the Adjudication Panel for Wales for an adjudication by Case Tribunal.  Following lengthy adjudication proceedings (48 witnesses over 58 hearing days and consideration of 7000 pages of evidence) the Breach and Sanction Decision documents were separately issued in August 2013. The decisions followed publication of a 400-page Findings of Fact document.

The Tribunal found that the Appellant had committed 14 breaches of the council’s Codes of Conduct by (as Hickinbottom J noted) "failing to show respect and consideration for council officers, using bullying behaviour, attempting to compromise the impartiality of officers and conducting himself in a manner likely to bring his office or the council into disrepute". As to sanction, the Tribunal disqualified the Appellant for being a member of the council or any other local authority for two years and six months.

Appeal

There were three grounds, namely that the Tribunal:

  1. adopted the wrong standard of proof i.e. civil rather than the criminal standard;
  2. erred in its findings as to breaches of the Codes of Conduct;
  3. erred in finding that any properly made findings of breach were such as to justify the sanction imposed.

In the Court’s view this gave rise to two important issues which included:

  1. The appropriate standard of proof for a Case Tribunal in Wales;
  2. The scope of and legitimate restrictions to a politician's right of freedom of expression under article 10 of the European Convention for on Human Rights ("the ECHR") and at common law.

As to 1, Hickinbottom J unsurprisingly found that "the appropriate standard is civil – and clearly so". This article will therefore focus on considerations around the second issue.

Role of Current Appeal Court

Hickinbottom J noted that in the absence of any submission that the case tribunal decision was unjust through a serious procedural or other irregularity, under Civil Procedure Rule 52.11(3)(a) the appeal will be allowed only if the Tribunal decision is ‘wrong’.  In the Court’s view, therefore, its role "goes beyond a simple review of the decision on public law grounds" since it is possible to challenge factual findings as well as the law, but falls short of a full re-hearing. And because "of the important public interest in the finality in litigation, the starting point is that the decision below is correct unless and until the contrary is shown".

As Laws LJ indicated in Subesh v. Secretary of State for the Home Department [2004] EWCA Civ 56, if an appellant is to succeed "he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one".

And the reviewing court is required to give due deference to the Tribunal below because:

  1. The Tribunal has been assigned by the elected legislature to determine the relevant issues;
  2. It is a specialist Tribunal, selected for its relevant experience, expertise and training;
  3. It has the advantage of having heard oral evidence.

Article 10

Article 10(1) of the European Convention on Human Rights gives a right to freedom of expression which includes the right to hold opinions and to receive and impart information and ideas without interference by public authority, subject in Article 10(2) to qualification in respect of such specified public interest "formalities, conditions, restrictions or penalties as are prescribed by law".  

The Court noted from Strasbourg jurisprudence (including Janowski v. Poland (1999) 29 EHRR 705)  that politicians  "....have enhanced protection as to what they say in the political arena". However:

"Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to 'wider limits of acceptable criticism'. They are expected and required to have thicker skins and have more tolerance to comment that ordinary citizens."

In addition, "Article 10 protects not only the substance of what is said, but also the form in which it is conveyed". So, in the political context ".....a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated.....".

But although "in a political context, article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false (R (Woolas) v. Parliamentary Election Court [2012] EWHC 3169...."

In considering the applicability of Article 10 to the material facts the Case Tribunal adopted the three stage process used by Wilkie J in Sanders v Kingston (No 1) [2005] EWHC 1145 (Admin) namely:

  1. Can we as a panel as a matter of fact conclude that the [Appellant's] conduct amounted to a relevant breach of the Code of Conduct?
  2. If so, was the finding of a breach and the imposition of a sanction prima facie a breach of article 10?
  3. If so, is the restriction involved one which is justified by reason of the requirement of article 10 subparagraph 2.

On this approach, Hickinbottom J considered that the questions to be considered with regard to breach are:

  • Was the Case Tribunal as a matter of fact entitled to conclude the Appellant’s conduct breached relevant provisions of the Codes of Conduct?
  • If so, was the finding itself a prima facie breach of Article 10(1)?
  • If so, was the restriction involved in the finding justified by reason of Article 10(2)?

In all the circumstances the Court refused the Appeal and upheld the Tribunal’s findings as correct, proportionate and justified in all save for three which arose out of two of the nine incidents. Hickinbottom J then continued with some useful consideration of the sanction stage.

Sanction

The Court looked at the proper approach to proportionality issues which was recently considered by the Supreme Court in Bank Mellat v. Her Majesty's Treasury (No 2) [2013] UKSC 38. Lord Reed said that:

"The approach. . .can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."

Hickinbottom J said that in the instant case it was uncontroversial that imposing a sanction upon a councillor who has breached the Code of Conduct has a proper objective i.e. "the public interest in good administration and in fostering of public confidence in local democracy". For such "interest may be adversely affected if a councillor conducts himself improperly, for example by undermining the relationship of mutual trust and confidence between council members and officers that is crucial to local democracy, or otherwise failing to respect and give proper consideration to others". In the Court’s view a "sanction is necessarily related to and supportive of the public interest in good administration and in fostering of public confidence in local democracy". So the answer to Lord Reed’s issues 1 and 2 could straightforwardly be answered ‘Yes’.

As to 3 and 4 (which reflect earlier jurisprudence) these envisage two discrete stages, namely consideration of whether: (1) interference with relevant human rights is the minimum necessary or whether less restrictive means could be employed so that the measure is no more than necessary and (2) the benefits of that least necessary measure (in terms of the legitimate aims sought to be pursued) outweigh its adverse impact on the rights of its object. However, Hickinbottom J warned that these analyses are merely tools to assist making proportionality decisions more rigorous and transparent and none is prescriptive or universal in its application.

Interference with the democratic process

In Sanders v. Kingston (No 1) [2005] EWHC 1145 (Admin) Wilkie J said that:

"It is a very serious thing indeed for a non-elected body, such as the case tribunal, to disqualify from membership of a council a person who has been elected to that body by the electorate after the events complained of. In effect the case tribunal is overriding the wishes of the electorate. Whilst it cannot be said that this would never be an appropriate course for the case tribunal to take it, in my judgment, where the matter complained of was, by inference, put before the electorate as an issue and they have delivered their verdict through the ballot box it cannot be right to override their verdict."

However, in the instant situation, Hickinbottom J noted that the Case Tribunal took the Appellant’s re-election into account and gave it the weight they considered appropriate. In his view that approach "was not arguably wrong". For "whilst re-election may be a relevant factor in showing the will of the electorate, whether it is material (and, if so, the weight to be given to it as a factor) is a matter – just one of many – for the case tribunal to consider (see Chegwyn v. Ethical Standards Officer of the Standards Board of England [2010] EWHC 471)."

The Court found the approach of the Case Tribunal to sanction "was, in general’ a model of its type". For, weighing all factors with patent care, they:

"....recognised the seriousness of disqualification as a sanction. In meticulous detail, they carefully set out all of the material factors, both aggravating and mitigating, as they saw them. The former included the damage that had been caused to the Council, in terms of its functioning and its standing. The latter included the deprivation of the electorate of their chosen representative, and the effect of disqualification on the Appellant himself."

But was the sanction wrong?

Since the Case Tribunal has been found not to have erred in its approach, the sanction could only be found to be wrong if clearly so or ‘manifestly excessive’. The Court found "far more force in this ground".

There were factors weighing in the Appellant’s favour including:

  1. The Appellant was not convicted or charged with any criminal offence and there was no issue of corruption or personal gain;
  2. The Appellant can rely on his right to freedom of speech and that most of his utterances were found to have been made as ‘political expression’.
  3. If the Appellant is suspended of disqualified, that will rob the electorate of his ward of the councillor of their choice.
  4. Disqualification would rob the Appellant of his living as a councillor;
  5. Testimonials from various councillors and officers were positive.

Nevertheless there were various aggravating factors. These included:

  1. The fact that all breaches were intentional, some involving serious misconduct and some deliberately dishonest and misleading conduct towards officers, other Members and members of the public;
  2. Much of the conduct towards officers was intended to undermine them personally;
  3. The Appellant encouraged officers to act contrary to council policy;
  4. The conduct continued despite warnings that the Appellant had been guilty of misconduct;
  5. The Appellant showed no remorse or insight into his misconduct;
  6. Whilst there was no intent to obtain personal financial gain "the Appellant was attempting to obtain political gain by, improperly, seeking to favour his constituents".

In the circumstances and "mindful of the requirement of article 10 to impose the minimum sanction consistent with the aims of maintaining standards in public life", the Court came "o the view that a period of disqualification of 2 years and 6 months was excessive, and manifestly so". Consequently the Court considered that the appropriate period of disqualification was "one of 18 months".

Comment

The regime in England is now very different in that the statutory standards framework is significantly looser than that in Wales. In particular in England there is now no statutory provision for sanctions concerning breaches of an authority’s code of member conduct. As Hickinbottom J noted:

".....there being no common law right for an authority to impose sanctions that interfere with local democracy, upon the abolition of these sanctions and outside the categories I have described above [i.e. disclosable pecuniary interests and existing disqualification provisions in the LGA 1972], a councillor in England can no longer be disqualified or suspended, sanctions being limited to (for example) a formal finding that he has breached the code, formal censure, press or other appropriate publicity, and removal by the authority from executive and committee roles (and then subject to statutory and constitutional requirements)."

However, local authority lawyers in England responsible for member conduct issues will find Heesom a valuable judgment, in particular for its detailed consideration of the careful balance needed between the right to freedom of political expression and when it will be justifiable to interfere with this right. The concept of improperly seeking ‘political gain’ is also useful. Any officers finding themselves subject to similar treatment as their colleagues in Heesom may also find this decision helpful if they seek to achieve a more satisfactory working environment.

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.

© Nicholas Dobson