High Court quashes decision by deputy monitoring officer that parish councillor had breached code of conduct

A parish councillor has won a High Court challenge over a decision by a Deputy Monitoring Officer (DMO) to uphold a complaint that he had breached its Code of Conduct for Members (PC Code).

The background to the case of Robinson, R (On the Application Of) v Buckinghamshire Council [2021] EWHC 2014 (Admin) was that Farnham Royal Parish Council had complained about the claimant, Cllr Clive Robinson, to South Bucks Council (whose functions are, following local government reorganisation, now carried out by Buckinghamshire Council).

The parish council accused the claimant of breaching paragraph 3.1 of the PC Code (behaving in a respectful way and not acting in a way that could bring the council into disrepute).

The principal basis of the challenge was that the decision was in breach of section 6 of the Human Rights Act 1998 as it violated Cllr Robinson’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

The claimant had been refused permission to challenge the defendant’s decision in respect of a complaint against another councillor, Trevor Clapp, but he was given permission to rely on the contrast between the defendant’s treatment of the two complaints.

The complaints arose out of a public meeting of the parish council, chaired by Cllr Clapp, on 17 April 2018 to discuss the Green Belt. The parish has a large area of Green Belt land within its boundaries.

South Bucks Council had, in March 2016, published its review of Green Belt land in which it stated that most of the Green Belt land in Farnham Royal only contributed weakly to the Green Belt, due to the intensification of housing on it, or adjacent to it.

“The prospect of development on the Green Belt in and around Farnham Royal generated some interest among developers, but was controversial among local residents who wanted to preserve the Green Belt,” the judge noted.

The complaint against Cllr Robinson, who had addressed the meeting from the floor, was that he had made misrepresentations about the motivation and intentions of other councillors, namely that they were minded to allow development of the Green Belt.

It was also said that he had met with residents and repeated those misrepresentations, he had refused to apologise or retract those misrepresentations and had added further claims against the clerk.

In the complaint the clerk to the parish council said it had decided that Cllr Robinson’ actions were in breach of the PC Code by bringing the council into disrepute and failing to show respect to other councillors.

The complaint also noted that as a result of a public backlash whereby the integrity of the chairman and the clerk had been questioned, Cllr Clapp had already asked for himself to be referred to the Monitoring Officer for a determination as to whether he had been in breach of the Code of Conduct.

Subsequent efforts to resolve the issue with Cllr Robinson were unsuccessful.

South Bucks’ Monitoring Officer wrote to the claimant in July 2018 inviting his comments. He responded by denying the allegations made against him.

An external solicitor was asked to assess the complaint on the papers and made recommendations in a report dated 18 February 2019.

The Deputy Monitoring Officer agreed with the assessor’s conclusion that Cllr Robinson had breached the Code of Conduct against five councillors and Cllr Clapp. She also agreed that there was no evidence to justify Cllr Robinson’s accusations that these councillors were secretly supporting development on the Green Belt.

The DMO added: “Having considered all the evidence, it appears Cllr Robinson's objective was to prove to the public that the Council and/or other councillors were not being truthful about their position regarding the green belt. I find this to be damaging to the Council especially as the Council had formally adopted a policy on the Green belt, one which Cllr Robinson had been privy to through all the stages before adoption.

“Further I also find that his allegations that the Parish Council's Policy statement on the Green Belt was being used to allow development to be disrespectful and was sufficient to damage the reputation of the office of the Councillors and/or the Council.”

She also noted that the allegations were made in an open forum where members of the public were present.

The DMO concluded that the claimant was in breach of the PCC Code, but also that the complaint did not warrant a referral for investigation.

Cllr Robinson brought a claim for judicial review over the DMO’s decision.

Ground A was that the DMO’s decision failed to make any clear findings as to what the claimant actually said at the meeting.

Grounds B and C alleged that the DMO failed to consider Article 10 in sufficient detail, in particular, there was insufficient regard given to the wider importance of freedom of expression, rigorous debate, scrutiny of decision-making and public accountability in local government.

Specifically, ground B alleged that paragraph 8 of the DMO’s decision which suggested that, if the claimant had raised the issues of concern in private, the findings against him might not have been made, was wholly inappropriate. It was submitted that it was entirely proper for the claimant to raise concerns about issues affecting the parish at a properly convened meeting in a public forum, with other councillors, and in his capacity as a councillor.

Ground C meanwhile alleged that the DMO erred in law in paragraph 9 of the decision, when she observed that "if criticism is a personal attack or of an offensive nature, it is likely to cross the line of what is acceptable behaviour".

Ground D alleged that the defendant acted unreasonably, inconsistently and unfairly in adopting a different approach to freedom of speech in complaints against the claimant and Cllr Clapp. 

In relation to Cllr Clapp, the DMO concluded that Cllr Clapp appeared to be aggrieved that he had been challenged in public by Cllr Robinson and in retaliation he attacked the person of Cllr Robinson when making a statement to the parish council on 25th June 2018. She said Cllr Clapp should be invited to respond to those allegations.

However, the DMO did not consider that Cllr Clapp's actions met the threshold for a breach of the Code of Conduct. She concluded that, as she had found no substantive breach on Cllr Clapp's part, it was not in the public interest to refer the complaint for investigation, and the costs of doing so would be disproportionate.

In the High Court Mrs Justice Lang concluded that the claim should succeed.

In relation to Ground A, both [the external solicitor] and the DMO had rightly been critical of the failure to record full and accurate minutes of the public meeting of 17 April 2018, and in particular, the failure to refer at all to the statements made by the Claimant.

“However, [the external solicitor] accepted that [the clerk until she resigned in 2018] had kept her own notes of what the Claimant said, and she set them out in paragraph 5.4 of her assessment. The Claimant gave his account of what he said at the meeting, which partly corresponded with [the clerk's] account and partly differed from it,” the judge said.

“Neither [the external solicitor] nor the DMO made clear findings as to what the Claimant actually said at the meeting. The DMO said in paragraph 12 that the Claimant accepted that he made "those statements", which I take to mean the statements which [the clerk] attributed to him, based on her private notes. This was not entirely accurate. Given the importance that was placed upon his statements, for the purposes of the PC Code and Article 10, I consider that this was a significant failing in the assessment and decision-making process. It is not possible to say what difference it would have made to the outcome if this exercise had been properly undertaken.”

In relation to Grounds B and C, Mrs Justice Lang found that the DMO's interpretation and/or application of Article 10 was flawed, and she failed to give effect to the claimant's enhanced right of political expression.

“In re-making the decision under Article 10(2), I conclude that the interference did not fulfil a pressing social need, and nor was it proportionate to the aim of protecting the reputation of the other councillors. As an elected councillor, taking part in a public meeting called by the PC to discuss the Green Belt, the Claimant was entitled to the enhanced protection afforded to the expression of political opinions on matters of public interest, and the benefits of freedom of expression in a political context outweighed the need to protect the reputation of the other councillors against public criticism, notwithstanding that the criticism was found to be a misrepresentation, untruthful, and offensive,” the judge said.

“Although no further action was pursued against the Claimant, beyond recommending that he apologise, it was a violation of Article 10 to subject the Claimant to the complaints procedure, and to find him guilty of a breach of the PC Code. Therefore Grounds B and C succeed.”

Finally, in relation to Ground D, Mrs Justice Lang said that whilst the factual differences between the cases [involving Cllr Robinson and Cllr Clapp] may have resulted in a different outcome, the approach should have been the same in both. “Councillor Clapp was more favourably treated. Therefore I consider that Ground D succeeds.”

Finding that there had been a violation of Article 10, the judge quashed the decision.