Calver, R (On the Application Of) v The Adjudication Panel for Wales (Rev 2) [2012] EWHC 1172 (Admin)

[2012] EWHC 1172 (Admin)

Case No CO/10054/2011

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN WALES

Venue Cardiff Civil Justice Centre, 2 Park Street, Cardiff, CF10 1ET

Date 03/05/2012

Before

THE HONOURABLE MR JUSTICE BEATSON

Between

The Queen on the application of Lewis Malcolm CalverClaimant

The Adjudication Panel for WalesDefendant

Public Services Ombudsman for WalesInterested Party

Robert McCracken QC and Matthew Paul (instructed by William Graham Law) for Claimant

for The Defendant did not appear and was not represented

Gwydion Hughes (instructed by Public Service Ombudsman for Wales) for the Interested Party

Hearing Hearing date: 3 April 2012

Judgment

[1]These proceedings concern the restrictions on the conduct of members of local authorities and thus to their right to freedom of expression introduced as a result of the Third Report of the Committee on Standards in Public Life (Cm 3762, July 1997) to promote and uphold proper standards in local democracy. At the material times the claimant, Lewis Malcolm Calver, was a member of Manorbier Community Council. Manorbier is a tourist resort in South Pembrokeshire with a permanent population of about 700. The claimant was elected to its Community Council in 2004 in a contested election. In May 2008 all the candidates for the vacancies on the Community Council including the claimant were returned unopposed. In that year he was also re-elected to the Pembrokeshire County Council for a ward which includes Manorbier.

[2]As a member of the Community Council, the claimant was required to undertake to abide by its Code of Conduct, adopted pursuant to the Community Council’s statutory obligations under the Local Government Act 2000 (“the 2000 Act”). Paragraphs 4(b) and 6(1)(a) of the Code of Conduct respectively require members to “show respect and consideration for others”, and not to “conduct [themselves] in a manner which could reasonably be regarded as bringing [their] office or authority into disrepute”.

[3]In this application, the claimant challenges the decision of the Adjudication Panel for Wales (“the Panel”), dated 25 May 2011 to dismiss his appeal against the decision of Pembrokeshire County Council’s Standards Committee (“the Standards Committee”) on 5 November 2010. The Standards Committee had decided that a number of comments or blogs posted by him on www.manorbier.com, a website he owned and wholly controlled, between June 2008 and May 2009, breached paragraphs 4(b) and 6(1)(a) of the Code of Conduct. It censured him and required him to attend a training session with the Council’s Monitoring Officer.

[4]These proceedings were lodged on 19 October 2011. Permission was granted following an oral hearing before HHJ Curran QC on 26 February 2012 at which issues of delay were considered. The defendant filed an Acknowledgement of Service but has not appeared. Mr Gwydion Hughes has, however, made submissions in favour of upholding the decision of the Panel on behalf of the Public Service Ombudsman for Wales (hereafter “PSOW”), who instigated the investigation of the claimant and referred his case to the Standards Committee.

[5]The overarching question before the court is whether the defendant’s decision that the claimant’s comments put him in breach of the Code of Conduct erred in law or is otherwise flawed in public law terms. The answer to that question principally depends on whether the Panel’s decision failed to give sufficient weight to the claimant’s right to free expression under the common law and

Article 10 of the European Convention

of Human Rights Article 10 is set out at [19]. (“the Convention”). This in turn involves considering whether the defendant erred in finding the comments did not constitute political expression attracting an enhanced level of protection under Article 10, and whether or not they attract that enhanced level of protection, whether the decision that thirteen of the comments broke the Code of Conduct and to censure the claimant was a disproportionate interference with his right under Article 10. The subsidiary issues include the effect of the claimant’s undertaking to abide by the Code of Conduct, as he was required to do in order to be a Councillor, and whether the Code of Conduct can be interpreted so as to give full effect to his right to free expression under Article 10, and, if not whether the Code itself is ultra vires.

The legal framework

[6]The Manorbier Community Council’s Code of Conduct was issued as part of the framework created by Part III of the Local Government Act 2000 (“the 2000 Act”), as a result of the third report of the Committee on Standards in Public Life (CM 3702-1) in 1997. The report recommended a new ethical framework for local government in order to promote and uphold proper standards in public life, and the 2000 Act made provision for this. The framework includes (section 53) Standards Committees, whose functions are (section 54) to promote and maintain high standards of conduct by members and co-opted members of relevant authorities. It also includes model Codes of Conduct.

[7]Some of the provisions of the 2000 Act apply to England and Wales, but others make separate provision for Wales: see for example sections 5(4) and (5), 7, 9(2), 49(2) (4) and (5), 50(2), 51(6)(c)(ii), 54(5) and (7), and 69-74. The framework and the model Code of Conduct applicable in Wales thus differ in a number of respects from those applicable in England. The 2000 Act has also been amended by the Public Audit (Wales) Act 2004, Public Services Ombudsman (Wales) Act 2005, and the Local Government and Public Involvement in Health Act 2007 (“the 2007 Act”). References to the 2000 Act are to the Act as amended.

[8]The framework under the 2000 Act applicable in England and its relationship to Article 10 has been considered by this court in Sanders v Kingston

[2005] EWHC 1145 (Admin)

; Livingstone v Adjudication Panel for England

[2006] EWHC 2533 (Admin)

and R (Mullaney) v Adjudication Panel for England

[2009] EWHC 72 (Admin)

. The first two decisions were statutory appeals against decisions of case tribunals pursuant to section 79(15) of the 2000 Act. The third was an application for judicial review of the decision of the Adjudication Panel for England, the body which hears appeals from decisions of the Standards Committees of English relevant authorities.

[9]Changes were introduced by the 2007 Act following the Tenth Report of the Committee on Standards in Public Life (CM 6407) in 2005 and the decision of Collins J in Livingstone v Adjudication Panel for England in 2006. In the case of Wales (but not England) one purpose was to make it clear that parts of the framework governing members of a relevant public authority apply at all times but other parts apply only where that person acts, claims to act or gives the impression that he or she is acting in the role of member or representative of the public authority in question: see sections 49(2D), 50(4E) and 51(4C) of the 2000 Act.

[10]Sections 49 and 51 of the 2000 Act require relevant public authorities in Wales to adopt the model Code of Conduct issued by the National Assembly for Wales regarding the conduct which is expected of members of relevant public authorities in Wales, or a Code in very similar terms. The Manorbier Community Council is a relevant authority by virtue of section 49(6)(f) of the 2000 Act. In the case of both England and Wales, as a result of section 183(4) of the 2007 Act, section 52 provides that a member of a relevant authority must, within two months of the date on which the Code is adopted, give the authority a written undertaking that he will observe the authority’s Code of Conduct, and if he fails to do so will cease to be a member of the authority at the end of the period. One of the differences between the framework in Wales and that in England is seen in the parallel texts of section 52 of the 2000 Act about the duty of members and co-opted members of relevant authorities to comply with the model Code of Conduct. In the case of England, but not Wales, the duty is expressly limited to the performance by the member or co-opted member of “his functions”.

[11]The Conduct of Members (Principles) (Wales) Order 2001 SI 2001 No. 2276 (W.166) specifies the principles which are to govern the conduct of members and co-opted members of relevant authorities in Wales. There are ten principles; “selflessness”, “honesty”, “integrity and propriety”, “duty to uphold the law”, “stewardship”, “objectivity in decision-making”, “equality and respect”, “openness”, “accountability” and “leadership”. Principle 7, “equality and respect”, provides:

“Members must carry out their duties and responsibilities with due regard to the need to promote equality of opportunity for all people, regardless of their gender, race, disability, sexual orientation, age or religion, and show respect and consideration for others.”

The “selflessness” principle prohibits members from using their position as members to improperly confer advantage on themselves. The “leadership” principle requires them to “respect the impartiality and integrity of the authority’s statutory officers and its other employees”.

[12]The equivalent provisions for England are contained in the Relevant Authorities (General Principles) Order 2001 SI 2001 No. 1401. The formulation of the principles differs in a number of material respects. For example, the promotion of equality and respect for the impartiality and integrity of an authority’s officers and employees are dealt with under the ‘Respect for Others’ principle. Also that principle, unlike the Welsh ‘Equality and Respect’ principle, contains no reference to ‘consideration’ for others, only to ‘respect’.

[13]Provisions for investigations by the PSOW are made in chapter III of Part III of the 2000 Act. By section 69(1)(b), the PSOW may investigate of his or her own motion in cases in which he or she “considers that a member or co-opted member (or former member or co-opted member) of a relevant authority in Wales has failed, or may have failed, to comply with the authority’s Code of Conduct and which have come to his attention as a result of an investigation under paragraph (a)”. Section 69(1)(a) concerns investigations in cases in which a written allegation is made to the PSOW by any person about the failure of a member or co-opted member of relevant authority to comply with the authority’s Code of Conduct.

[14]Section 69(3) of the 2000 Act provides that the purpose of an investigation is to determine which of the findings mentioned in sub-section (4) is appropriate. Sub-section (4) lists four findings. That relevant in the present context is section 69(4)(c), that the findings are “that the matters which are subject of the investigation should be referred to the Monitoring Officer of the relevant authority concerned”.

[15]Section 73(1) of the 2000 Act provides that the National Assembly for Wales may make regulations “in relation to the way in which any matters referred to the monitoring officer of a relevant authority under…section 71(2)…are to be dealt with”. By section 73(4)(c), the Regulations may make provision “conferring a right of appeal on a member or co-opted member of a relevant authority in respect of any action taken against him”. The Local Government Investigations (Functions of Monitoring Officers and Standards Committees) (Wales) Regulations 2001 SI 2001 No. 2281 (W.171) provide that the appeal lies to an Appeal Tribunal drawn from the Adjudication Panel for Wales.

[16]The current model Code of Conduct issued by the National Assembly for Wales is contained in the Local Authorities (Model Code of Conduct (Wales)) Order 2008, SI 2008 No. 788 (W.82). It came into force on 18 April 2008, replacing the earlier 2001 Model Code of Conduct, S1 2001 No. 2289 (W.177).

[17]The material provisions of the Manorbier Community Council’s Code of Conduct are:

“2(1)…You must observe this Code of Conduct … (a) whenever you act, claim to act, or give the impression you are acting in the role of member of the authority to which you were elected or appointed; (b) whenever you act, claim to act, or give the impression you are acting as a representative of your authority; or (c) at all times and in any capacity, in respect of conduct identified in paragraphs 6(1)(a) and 7.” … 4. You must … (b) show respect and consideration for others; … 6(1). You must (a) not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.” (a) whenever you act, claim to act, or give the impression you are acting in the role of member of the authority to which you were elected or appointed; (b) whenever you act, claim to act, or give the impression you are acting as a representative of your authority; or (c) at all times and in any capacity, in respect of conduct identified in paragraphs 6(1)(a) and 7.” … (b) show respect and consideration for others; … (a) not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute.”

[18]Paragraph 4(b) of the Code, requiring members to “show respect and consideration for others”, thus only applies where a member of the Council acts, claims to act, or gives the impression that he or she is acting in the role of a member of the Community Council, but paragraph 6(1)(a) of the Code applies at all times to a member of the Council, whatever he or she may be doing.

[19]

Article 10 of the European Convention

of Human Rights (“the Convention”) provides:

"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…. (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of…the protection of the reputation or rights of others, …"

[20]Convention Rights, including Article 10, are given direct effect in domestic law by the Human Rights Act 1998. Section 6 of that Act provides that it is unlawful for a public authority to act in a way which is incompatible with inter alia Article 10 (save in limited circumstances concerning primary legislation). Section 3 provides that legislation and subordinate legislation, so far as it is possible to do so, must be read and given effect in a way which is compatible with the Convention rights.

[21]In limiting what a member of a relevant authority may say and do, the provisions of the 2000 Act and the Codes of Conduct made under it restrict the rights of members to free expression under Article 10. Neither in this case nor in the cases to which I have referred in [8] was it contended that the legislative scheme making provision for codes of conduct in itself constitutes a breach of Article 10. Accordingly, and subject to one qualification, the principal questions are whether the undoubted restriction on the Article 10 rights of councillors in the Code, as applied by the Panel to the comments the claimant posted on his website, falls within Article 10(2) and is justified in the circumstances of this particular case either on a purely common law interpretation of the relevant provisions of the Manorbier Community Council’s Code of Conduct, or as a result of the operation of section 3 of the Human Rights Act 1998. The qualification concerns the difficulty in practice of maintaining the analytical distinction between a purely common law interpretation and that achieved as a result of section 3: see [46].

The factual background

[22]Prior to 2008 there were concerns about the way Manorbier’s Community Council operated, particularly in respect of financial management. Those concerns had been expressed to Pembrokeshire County Council’s monitoring officer and to other officials. In a letter dated 26 February 2009to the PSOW, the Monitoring Officer stated that, in the period before the 2008 election, the Council “had been considered a failing Council by many”.

[23]In September 2005 the claimant asked the PSOW to conduct a major investigation into the affairs of the Council. The PSOW declined, stating that his role was to investigate specific allegations that members had breached the Council’s Code of Conduct. In 2006 the Council was successfully sued by a marketing company for breach of a contract to conduct a survey. It also dismissed its clerk in circumstances which led to proceedings against it in the Employment Tribunal. In July 2006 the claimant complained to the PSOW about the refusal to provide him with details of the advice given to the Council about the dismissal of its clerk. In a letter dated 15 August, the Ombudsman’s office stated the matter fell outside his remit because the claimant was complaining in his capacity as a Community Councillor rather than as a member of the public.

[24]In early 2008, as part of their opposition to a planning application relating to an estate in the Community Council’s area, Cllr Gourlay and another Councillor made use of a video showing a child being abducted. This was later referred to by the Chairman of the Pembrokeshire National Park Planning Committee as “being like a video nasty”, and representing “child manipulation”: see Western Telegraph, 26 March and 4 April 2008. The claimant’s posted comments on his website included comments on this matter, one of which was among those found by the defendant to breach the Code of Conduct.

[25]I have referred to the fact that, because insufficient candidates were nominated to serve on the Community Council in 2008 to require an election, those who were nominated were returned unopposed. The claimant (who at that time had been a member of the Community Council for approximately 10 years) and Cllr Gourlay, who became responsible for preparing the minutes of Council meetings, were two of the councillors returned in this way. Four other members of the Community Council subsequently resigned because of what they described as the lack of enthusiasm of electors to serve on the council.

[26]After the 2008 election the relationship between the claimant and other members of the Community Council was bad. In the submissions to the Panel on behalf of the PSOW it was stated (decision report, paragraph 3.2.7) that the Council was “a disaster zone” and that “relations between Community Councillors appear to have broken down”. Relations appear to have been particularly bad between the claimant and the Chair, Cllr Hughes, and Cllr Gourlay. Cllr Hughes had unsuccessfully contested the election to the County Council in which the claimant was elected. In a letter dated 3 March 2009 to the PSOW, Cllr Gourlay claimed she had been subjected to intense ridicule.

[27]The comments posted on the claimant’s website contained in the court bundle appear to cover the eleven month period between June 2008 and May 2009. The claimant sought and received advice from Mr Huw Miller, head of Legal and Committee Services at Pembrokeshire County Council, about publishing draft minutes of the Community Council on his website. On 1 September 2008 the Community Council passed a resolution stating that no minutes should be published until they were approved by the Community Council. Councillors on Manorbier Community Council received training from Pembrokeshire County Council’s Monitoring Officer on the Code of Conduct at a meeting on 8 December 2008.

[28]There were disputes between the claimant and others as to inter alia:the adequacy of notice of meetings, the quality and adequacy of the minutes of meetings, and declarations of interest. There were also disputes about what the claimant saw as a mistaken view by some other councillors of his role as a County Councillor. The only evidence before the court is by or in support of the claimant. His evidence is that the view of some was that, because the electoral division that he represents on the County Council includes Manorbier, he should represent the Community Council’s views on the County Council rather than exercise his judgment as to the interests of the county. A resident, a Mr Tew, stated that there were bad tempered remarks made to the claimant by other councillors, including that he would be silenced, and that proposed amendments to minutes by him were “nit-picking”. The claimant stated that Cllr Hughes’ behaviour to him was intimidating and threatening.

[29]In 2009 three Councillors, including Cllrs Hall and Gourlay, were granted dispensations to debate and vote on business concerning the Manorbier Community Association. They had declared that they held no position of responsibility or management on that Association, whereas in fact they sat on its General Management Committee. In May 2009 the Community Council passed a motion of no confidence in the claimant. The motion was proposed by Cllr Hughes and carried by the exercise of his casting vote as chairman. That year the Community Council settled the wrongful dismissal claim brought by its former clerk in 2006 by making a substantial payment.

[30]On 19 October 2009 the claimant complained to the PSOW that Cllr Hughes had breached the Code of Conduct. He alleged that Cllr Hughes had failed to declare a prejudicial interest in relation to two Community Panel workshops held in September 2008 and September 2009, and in nominating himself to attend a meeting of the Pembrokeshire Coast National Park Authority without declaring an interest that arose because of Cllr Hughes’s ownership of certain land. The PSOW did not report on this complaint until 24 February 2011. In his report he stated that he considered that Cllr Hughes had breached the Code of Conduct in these matters, and referred them to Pembrokeshire County Council’s Standards Committee. In a decision dated 27 September 2011 the Standards Committee resolved that Cllr Hughes should have declared a personal and prejudicial interest, and should have left the meeting for an item concerning the local development plan. It also found that he had breached the Code of Conduct by not withdrawing from the two Panel meetings. It, however, resolved that no action be taken.

[31]I return to the chronology. In the course of his investigation into the claimant’s complaint against Cllr Hughes, the PSOW discovered that the claimant was running the www.manorbier.com website. The website included comments, amongst other things, about the functions and activities of the Council and about individual members of the Council. The PSOW considered that a number of the claimant’s posted comments could constitute breaches of the Code of Conduct. Accordingly, he exercised his powers under section 69(1)(b) of the 2000 Act to start an investigation into the claimant’s conduct. On 20 April 2010, he issued a report in which he found that there was prima facie evidence that the claimant had committed forty-three breaches of the Code of Conduct. He referred the report to the Standards Committee of Pembrokeshire County Council.

The decision of the Standards Committee

[32]The matter first came before the Standards Committee on 28 September 2010. As a result of late information being presented, the meeting was adjourned to 5 November 2010. After a public hearing the Standards Committee found breaches of the Code by the claimant in respect of thirteen comments. It found that there was no evidence to prove that he had disclosed confidential information in breach of paragraph 5(a) of the Code, and insufficient evidence of bullying or harassment by him in breach of paragraph 4(c). But it found that there was evidence:(a) to prove that he had failed to show respect and consideration to others in breach of paragraph 4(b), and

(b) to support a finding that he brought the Manorbier Community Council into disrepute in breach of paragraph 6(1)(a) of the Code.

[33]The key parts of the comments posted on the website on various dates in relation to which the Standards Committee found there was evidence of breaches of the Code of Conduct (with the paragraph(s) of the Code of Conduct which the Committee found were breached in brackets) are:(1) “Manorbier Community Council does not seem to understand the limits of its role. This lack of understanding is difficult to comprehend following the advice received from Lawrence Harding the Pembrokeshire County Council Monitoring Officer.” (Code, paragraph 6(1)(a)).

(2) “Anybody who attended the October meeting would have great difficulty in relating the actual events to the draught [sic] minutes above. Anybody looking at these minutes at some time later, such as next year, would not have any ideas to what was agreed, discussed or expenditures approved. The draught [sic] has just blown the facts away. There are more holes in the Draught [sic] Minutes than in Swiss Cheese.” (Code, paragraphs 4(b) and 6(1)(a)).

(3) “Ms Gourlay has tried many times to be elected by ballot and failed. She has succeeded in becoming a Councillor as no ballot was had”. (Code, paragraphs 4(b) and 6(1)(a)).

(4) “Disgraceful manipulation of children [by Mr Wales – now ex Councillor] to influence a lawful planning application. Mr Wales…has now left [Manorbier Community Council] leaving the Council in a mess.” (Code, paragraph 6(1)(a))

(5) “Councillor Gourlay at this stage state that she was an expert on declarations of interest. It is not known where Councillor Gourlay acquired her expertise (or her present place of employment?.” (Code, paragraph 4(b)).

(6) “Manorbier Community Council as a ship will sail on until members of the Community realise how much of their money has been wasted over the last year and how much dealing has been carried out in secret meetings.” (Code, paragraph 6(1)(a)).

(7) “… the past two and a half years in the absence of a competent clerk has proved very costly to the ratepayers of Manorbier.” (Code, paragraphs 4(b) and 6(1)(a)).

(8) “Manorbier Community Council both in the recent past and in the present seems to live in the land of secrecy with many skeletons in the cupboard which will eventually come out.” (Code, paragraph 6(1)(a)).

(9) “The staffing committee has with the indulgence of other past Councillors…cost the charge payers of Manorbier in excess of £55,000.” (Code, paragraph 6(1)(a)).

(10) “Manorbier Community Council meeting, Monday 1st September Manorbier Councillors through its Chairman strive to stop this website publishing draft minutes of Council meetings…the reason this website published the draft minutes is to show their poor quality and it will not be browbeaten by anyone who wishes to inflict censorship…Cllr Hughes informed Cllr Calver that he was not prepared to supply him with signed corrected minutes using the feeble excuse that somebody might forge his signature…perhaps both Cllr Hughes as Chairman and Cllr Williams, the deputy chairman (who is believed to have been an ex-headmaster) should have been concerned about the standard of the draft minutes that were being displayed on this website and described by Mr Crocker as being of poor quality. One can only wonder at the statement by the chairman that the council would have collapsed had Ms Gourlay not volunteered for the role where she acted firstly as the Proper Officer and secondly as the writer of the minutes…resigning as Proper Officer in her letter to the council.” (Code, paragraphs 4(b) and 6(1)(a)).

(11) “For a Chairman of a Community Council who has just had the benefit of being trained to suggest that he would not provide signed copies of council meetings to fellow councillors beggars belief, perhaps he beliefs (sic) that he is above the law of the land which states that the minutes of council meetings have to be signed ‘as being a true and accurate record of the meeting’ and then become placed in the public domain and open to inspection by any member of the public.” (Code, paragraph 6(1)(a)).

(12) “The website will of course continue to publish both draft and the agreed signed minutes with or without the co-operation of the Council.” (Code, paragraphs 4(b) and 6(1)(a)).

(13) “…In regard to the ‘backdoor’ method of becoming a Councillor…not one Councillor, so far, has actually been elected to represent the people.” (Code, paragraph 6(1)(a)). In the remainder of this judgment I identify the comments by the bracketed number at the beginning of each of them.

[34]The summary shows that the Committee considered that, in respect of five of the thirteen comments, (2), (3), (7), (10) and (12), there was evidence to prove that the claimant had breached both paragraphs 4(b) and 6(1)(a). It considered that in respect of one comment, (5), there was evidence to prove that the claimant had breached only paragraph 4(b). As to the six other comments, the Committee considered there was evidence to prove that the claimant breached paragraph 6(1)(a). It is to be recalled (see [17] – [18]) that paragraph 6(1)(a) applies at all times to a member of a Council whether or not he or she is acting as a member of a Council. The Committee stated that it considered that the paragraphs identified “had been breached by virtue of the cumulative effect of the evidence presented, which undermined the confidence of Councillors and the authority of Manorbier Community Council”.

[35]The Standards Committee resolved that the claimant be censured and required to attend a training session with Pembrokeshire County Council’s Monitoring Officer within 3 months. The Committee also considered it would be beneficial for all other members of Manorbier Community Council to receive a joint training session by the Monitoring Officer. It also stated that it hoped that the Council would operate in a more cohesive way, and that the claimant would consider carefully the language used on his website in the future.

[36]The claimant appealed to the defendant Panel on the following grounds. First, he maintained he was not acting in his official capacity as a Councillor, or in any way misusing his position as Councillor, in making the comments which were the subject of the complaint. Secondly, he argued that the comments singly or taken together were incapable of bringing the Community Council into disrepute, and did not demonstrate a lack of respect or consideration for others. It was argued on his behalf that any reporting on the website of discreditable behaviour by the Council or individual Councillors was “truthful and factually accurate”, the comments were “legitimate political comment on the actions” of the Council or individual Councillors, and that the finding that the comments breached the Code was an unnecessary and disproportionate infringement of the claimant’s right to free expression under

Article 10 of the European Convention on Human Rights

. The grounds of appeal thus track very closely the grounds upon which these proceedings are brought.

The decision of the Panel

[37]The Panel heard and unanimously dismissed the claimant’s appeal on 25 May 2011. It is that decision which is challenged in these proceedings. Both the claimant and the PSOW were represented before the Panel by counsel. The Panel had before it a number of decisions, including those in Sanders v Kingston

[2005] EWHC 1145 (Admin)

, Livingstone v. Adjudication Panel for England

[2006] EWHC 2533 (Admin)

, and R (Gaunt) v Office of Communications

[2011] EWCA Civ 692

.The material parts of the Panel’s decision are:

“3. The allegations considered by the Appeal Tribunal were that Cllr Calver had breached Manorbier Community Council’s Code of Conduct by publishing derogatory website comments about two fellow Community Councillors, and by bringing his office and/or Manorbier Community Council into disrepute. … 5. At a hearing on 25 May 2011 at the Lamphey Court Hotel, Lamphey, Pembrokeshire, the Appeal Tribunal found by unanimous decision that Cllr Calver failed to comply with Manorbier Community Council’s Code of Conduct, upholding the decision dated 5 November 2010 of the Standards Committee, both as to breach and sanction.”

[38]The reasons for the decision are contained in the Panel’s decision report, dated 14 July 2011. Its material parts are:

“4.1.5 In relation to breach of paragraph 4(b), the code of conduct applies only when a member is acting in his official capacity. The content of Cllr Calver’s website posting or blogs comprised on draft, unapproved, minutes of the Community Council, his opinion and comments about those minutes and about the character and ability of some of the members of the Community Council, the Community Council as a body and how it and certain members conducted themselves. He also alluded to secrecy, connivance, mal-administration, financial mis-management and incompetence and much of this was within his knowledge only because he was an elected member of that authority. He was discussing the affairs and business of his council and his purpose and intention was to inform the people of the community about council or, as he put it, what was going on. Whilst Cllr Calver did not identify himself as the blogger of the owner of the website, those details were easily ascertainable, i.e. that the blogger was Malcolm Calver and that he was a member of that authority. Whilst Cllr Calver says he was not acting in his official capacity, it is an objective test which applies. The Appeal Tribunal concluded that a member of the public reading the website would have the impression, and reasonably so, that Cllr Calver was acting as a member of the Manorbier Community Council. 4.1.6 In relation to paragraph 4(b), having concluded that Cllr Calver was acting in his official capacity, the Appeal Tribunal then considered whether Cllr Calver’s posting failed to show respect and consideration for others. The Appeal Tribunal is aware that Cllr Calver asserts that everything he said was true and is aware, from the information before it, of the failings of the Manorbier Community Council. The Appeal Tribunal also notes that Cllr Calver asserts that his motivation was informing the public. It nevertheless remains the case that Cllr Calver published draft, unapproved minutes after the Community Council had passed a resolution that he should not do so; that he criticised the draft minutes as not being an accurate record of the meeting and the competence of their author; he made personal, snide, remarks about the competence, integrity and character of members of the authority and alluded to alleged breaches by some members of the code of conduct. Whether or not what was said is true does not detract from the rudeness, lack of respect and consideration all of this shows to individual members of the council and the council as a body. Cllr Calver could have properly addressed his concerns at the next meeting/s thereby allowing others to respond to his views and have their say, allowing a debate and if needs be, a vote. It would have been respectful and considerate for him with the benefit of his experience as a longstanding community and county councillor, to have offered held to those he considered to be less competent and able than himself. Indeed if he was so utterly disgusted with his fellow members on the Community Council, he could have resigned. Instead, he chose to ‘bitch from the sidelines’ to coin a phrase used by Mr Gwydion Hughes. 4.1.7. Inevitably, the Appeal Tribunal’s finding that Cllr Calver has breached the code of conduct by speaking in a way which was inconsiderate and disrespectful to others is, on a superficial level, a breach of his right to freedom of expression under Article 10(1). The Appeal Tribunal does not consider that Cllr Calver’s blogs were political expression in the true sense of that meaning; he anonymously blogged on his website by publishing draft unapproved minutes, criticising their content and the competence of their author and made personal comments about the integrity, etc. of the members and the council. It was all very one-sided. It was not an expression of Cllr Calver’s political views or allegiances, nor a response to those expressed by others, nor a critique of any other political view or party. The higher level of protection afforded by Article 10(2) to political expression does not apply here therefore. The provisions of the 2008 code of conduct were prescribed by law and the code of conduct is the ethical framework within which local government operates. It sets minimum standards of conduct in public life and upholds those standards of conduct so as to engender public confidence in local democracy. It goes far beyond dealing with corruption; it includes, obviously, a requirement that councillors should treat each other and others with respect and consideration and, as a matter of fact, it is of course perfectly possible to be critical of others without also showing them disrespect or lack of consideration. 4.1.8 Although the Appeal Tribunal has decided that Cllr Calver was acting in his official capacity, it is worth noting that by virtue of paragraph 2(1)(s) the (2008) code of conduct is engaged ‘at all times and in any capacity’ in respect of conduct identified in paragraph 6(1)(a) (ie. conduct capable of bringing the office of member or the authority into disrepute. 4.1.9 Cllr Calver was a longstanding and experienced member of the failing Manorbier Community Council; he was also a county councillor. There were various options available to Cllr Calver including seeking to assist those he regarded as incompetent and inexperienced, distancing himself entirely from the failing council by resigning, or seeking the assistance of the monitoring officer. He did none of these. He publicly ridiculed his fellow members and the authority of which he was a member. The Appeal Tribunal conclude that if the reasonable man were asked for his view of Cllr Calver’s behaviour, he would say it fell short of that expected, under the code of conduct, of an elected member; and to such extent that it brought his office and his authority into disrepute. 4.1.10 The Appeal Tribunal accordingly decided by unanimous decision to uphold the Standards Committee’s determination dated 5 November 2010, that Cllr Calver had breached Manorbier Community Council’s code of conduct.”

Discussion

[39]It was, subject to one qualification by Mr Hughes, common ground that the questions I must answer are those formulated by Wilkie J in Sanders v Kingston

[2005] EWHC 1145 (Admin)

at [72]. Leaving the qualification to one side at this stage, and adapting Wilkie J’s questions to reflect the facts of the present case, they are:(1) Were the Standards Committee and the Panel entitled as a matter of fact to conclude that the claimant’s conduct in respect of the thirteen comments was in breach of paragraphs 4(b) and/or 6(1)(a) of the Code of Conduct?

(2) If so, was the finding in itself or the imposition of a sanction prima facie a breach of Article 10?

(3) If so, was the restriction involved one which was justified by reason of the requirements of Article 10(2)?

[40]Before turning to the application of these questions to the circumstances of the present case, I make five observations about the underlying principles. The first concerns the common law. Understandably, the submissions in this case largely concerned

Article 10 of the Convention

. It is, however, important to remember the status of freedom of expression at common law and the relevance of the common law despite the enactment of the Human Rights Act 1998. The continuing importance of common law analysis in this area has been recently illustrated by the decision of the Court of Appeal in R (Guardian News and Media) v City of Westminster Magistrates

[2012] EWCA Civ. 420

at [68] per Toulson LJ.

[41]The status of freedom of expression at common law was, for example, seen in the development of the law of defamation and in particular what may be described as the distaste for “prior restraints”: Bonnard v Perryman

[1891] 2 Ch 269

. Its position, although at one stage characterised as a residuary right, has been enhanced by developments of the common law under the influence of rights in international human rights treaties ratified by the United Kingdom, and in particular, even before the Human Rights Act 1998, the European Convention: see Derbyshire CC v Times Newspapers Ltd

[1993] AC 554

and R v Secretary of State for the Home Department, ex parte Simms

[2000] 2 AC 115

, at 126. The result was that a narrower construction was given to legislative instruments restricting the right, and, albeit subject to Parliamentary sovereignty, clear words were required to achieve a restriction. In ex. p. Simms Lord Hoffmann stated (at 131) that “fundamental rights cannot be overridden by general or ambiguous words” because of “the risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process”. See also R (Gillan) v Commissioner of Police for the Metropolis

[2006] 2 AC 307

at [15] (per Lord Bingham). This is similar to the position under the Convention. In Jerusalem v Austria

[2003] 37 EHRR 25

at [32] the Strasbourg Court stated that the exceptions to freedom of expression must be construed strictly.

[42]Charles J, in R (Mullaney) v Adjudication Panel for England

[2009] EWHC 72 (Admin)

at [78], expressed no view as to whether, apart from Article 10, a narrow approach should be taken to the construction of the Code of Practice. But, in McCartan Turkington Green v Times Newspapers

[2001] 2 AC 277

at 297 and R v Shayler

[2003] 1 AC 247

at [21], Lord Steyn and Lord Bingham respectively described freedom of expression as having “the status of a constitutional right with attendant high normative force”, and “a fundamental right” which “has been recognised at common law for very many years”. One of the consequences of giving this constitutional status to freedom of expression is that clear words are required to restrict it, and thus in that sense there is a narrower approach to the interpretation of legislation and instruments made under legislation restricting it.

[43]The second observation concerns the approach of the court to the first of Wilkie J’s questions. Mr Hughes submitted that the approach and the court’s role in this case, a judicial review, is narrower than it is in a statutory appeal such as Sanders v Kingston

[2005] EWHC 1145 (Admin)

. He submitted that, in a judicial review such as this, greater weight should be accorded to the finding of the Panel that the claimant’s conduct breached the Code than would be accorded in a statutory appeal. It is true that, in R (Mullaney) v Adjudication Panel for England Charles J referred (at [73] and [74]) to the difference in the role of the court on an appeal under section 79(15) of the 2000 Act from that in a judicial review. It may also in principle be analytically correct to separate the question of whether, in purely common law terms, there is a breach of paragraphs 4(b) or 6(1)(a) of the Code of Conduct from the question of whether there is a breach of Article 10 as questions 1 and 2 do.

[44]I do not, however, consider that those factors affect the conclusion in this case. This is primarily because of the effect of sections 3 and 6 of the Human Rights Act (see [20]) but also because of the approach at common law to restrictions on freedom of expression to which I have referred: see [40] - [42]. As far as the common law is concerned, the factors include a cautious approach to the scope of restrictions on it. One manifestation of this is the presumption which (see [41]) prevents rights such as that to freedom of expression from being overridden by general or ambiguous words. The effect of sections 3 and 6 of the Human Rights Act is that it is in practice difficult entirely to exclude consideration of factors relevant to common law freedom of expression and Article 10 from the question of whether there was a breach of the Code of Conduct. So, for example, in R (Gaunt) v Office of Communications

[2011] EWCA Civ 692

, Lord Neuberger MR stated (at [36]) that, as it was not contended on behalf of the claimant in that case that the provisions of the Broadcasting Code fell foul of Article 10, they did not require particularly close analysis. However, that did “not alter the fact that the provisions must be interpreted, as well as being applied in a particular case, so as to comply with the requirements of Article 10”.

[45]Once Article 10 is under consideration, so is the general approach of the court to questions of weight and latitude in determining whether a decision or conduct is compatible with a Convention right. While (see [73]) the court must “have due regard” to the judgment of the statutory regulator, the approach involves scrutiny of greater intensity than in a judicial review not involving a Convention right, and the decision whether Article 10 is infringed is ultimately one for the court: R (SB) v Governors of Denbigh HS

[2007] 1 AC 100

at [30]; Belfast City Council v Miss Behavin’ Ltd

[2007] UKHL 19

at [30], [31] and [88]; Gaunt’s case at [47]. These cases also make it clear that the role of the court is to address the substantive question of compatibility with the Convention right rather than the process used by the primary decision-maker. If, however, the process is defective, less weight will be accorded to the judgment of the primary decision-maker: Belfast City Council v Miss Behavin’ Ltd at [37], [47] and [91].

[46]My third observation is that the relevant legal principles in this area do not provide the Panel or the court with bright lines. Notwithstanding the warning by Hoffmann LJ in R v Central Independent Television Plc

[1994] 3 All ER 641

at 651-52 they lead it to a process of balancing a number of interests. This is seen, for example, in Sanders v Kingston at [77] and [84] and in Mullaney’s case at [95] – [96] where, in the context of determining whether there was a breach of the Code, Charles J stated that “a balance has to be struck between the various relevant aspects of the public interest in all the circumstances of the case”.

[47]As to Hoffmann LJ’s warning, he recognised that freedom of expression is subject “to clearly defined exceptions laid down by common law or statute”, but did not appear to favour a process of balancing. He stated that, outside those exceptions and any exception enacted in accordance with Parliament’s obligations under the Convention, “there is no question of balancing freedom of speech against other interests … it is a trump card which always wins”. That way of putting it may, however, be implicit recognition that, in the approach to and application of those exceptions, there is balancing. Neither freedom of speech nor the principle reflected in the exceptions under consideration (e.g. reputation or privacy) can be given effect in an unqualified way without restricting the other. Hoffmann LJ’s concern about balancing was because (

[1994] 3 All ER 641

, 653) the matters that have to be balanced, in the present case, on one side of the balance a councillor’s right to freedom of expression and the public interest in such freedom, and on the other side of the balance the public interest in proper standards of conduct by members of local authorities, are not easily commensurable.

[48]More recently, in R (Gaunt) v Office of Communications

[2011] EWCA Civ 692

at [23] Lord Neuberger MR, considering restrictions on broadcasting “offensive and harmful material” in the Broadcasting Code made pursuant to the Communications Act 2003, stated that “like virtually all human rights, freedom of expression carries with it responsibilities which themselves reflect the power of words, whether spoken or written”. Although he also emphasised that “any attempt to curtail freedom of expression must be approached with circumspection”, his recognition of the responsibilities that are carried by freedom of expression reflects an element of balancing. There, of course, has to be balancing when the exercise of the right to free expression in Article 10 right by one person will violate other Convention rights, notably the right to respect for private and family life protected by Article 8.

[49]Fourthly, a process of balancing is, as was recognised in Gaunt’s case (at [25]) a highly fact-sensitive one: see also Clayton and Tomlinson, The Law of Human Rights (2nd ed.) 15.297. For this reason, while the cases on the decisions of Case Tribunals and the Adjudication Panel for England to which I have referred (at [8]) provide valuable guidance as to the general approach, it is important to keep in mind their particular facts. Notwithstanding the high importance of freedom of expression and its relative incommensurability with the interests that are invoked in justifying a restriction, the more egregious the conduct, the easier it is likely to be for the Panel, and for the court, to undertake the balancing that is required and justifiably to conclude that what was said or done falls within one of the exceptions to freedom of expression under common law, statute or the Convention. If the conduct is less egregious, it is likely to be more difficult to do this. This is because the interests – freedom of expression and, in the present context, proper standards of conduct by members of local authorities, are not easily commensurable.

[50]Justification requires, as was stated in Livingstone v Adjudication Panel for England

[2006] EWHC 2533 (Admin)

at [39] “clear and satisfactory reasons within the terms of Article 10(2)”. But in Belfast City Council v Miss Behavin’ Ltd

[2007] UKHL 19

at [92], Lord Neuberger recognised that “it may not always be easy to see, or at least to express in clear terms, how [a person’s] Article 10 rights can satisfactorily be weighed against [in that case] a council’s decision to refuse a licence”.

[51]The conduct found to breach the Code of Conduct in Sanders v Kingston and Mullaney’s case was at the top end of the scale of egregiousness. Mullaney’s case concerned a Councillor who trespassed on land to make a video about the condition of a listed building, was involved in a scuffle when the landowner returned, and subsequently uploaded an edited version of the video on the Youtube website. The trespass was a civil wrong (the Councillor also intended to trespass again: [42]) and his involvement in what may have been an affray were undoubtedly serious departures from the standards expected of Councillors established by the framework of the 2000 Act.

[52]Sanders v Kingston involved the response of the claimant, the leader of Peterborough Council, to a request by Carrickfergus Borough Council, a local authority in Northern Ireland. The Carrickfergus Council sought support from English local authorities including the Peterborough Council for its call for an inquiry into the death of a soldier whose family resided in its area and the deaths of other army personnel. Wilkie J described (at [79]) the claimant’s initial and later responses to the Carrickfergus Council and to press inquiries as “little more than an expression of personal anger at his time being wasted by [the] request” and (at [81]) “the ill-tempered response of a person who thought that he should not be troubled by the request…and who has chosen to express his annoyance in personal and abusive terms” directed in the main at the Carrickfergus Council and the family of the dead soldier, and as a by-product, the Irish people and “the Troubles”. In the present case Mr McCracken QC, on behalf of the claimant, characterised the comments in that case as “not merely offensive but seriously inflammatory” and potentially racist. He noted they caused offence at a national level.

[53]Wilkie J held that the Case Tribunal in that case was fully entitled to find that the conduct did not treat others with respect and was conduct which could reasonably be regarded as bringing the office or authority of the claimant into disrepute. But for the sanction of two years disqualification that was imposed, he would have held the interference with Mr Sanders’s freedom of expression was justified in accordance with

Article 10(2) of the Convention

[54]In the present case, before the Panel it was accepted on behalf of the PSOW (see decision report, paragraph 3.2.7) that the conduct in Sanders v Kingston and Gaunt’s case (as to which see [56] below) “was atrocious, the worst possible”, and very different from the claimant’s conduct in this case. But the PSOW’s case was that it did not follow that the claimant’s conduct did “not fall below that reasonably required by the Code of Conduct”. Mr McCracken characterised the claimant’s comments in this case as sarcastic, lampooning and disrespectful rather than personal abuse. While it is certainly possible that conduct far less serious than that in those cases can lawfully be found to break the Code of Conduct, it is important not to lose sight of the greater complexity and difficulty for both the Panel and the court in conducting the balancing exercise in such a case.

[55]Fifthly, it is clear, as a general proposition, that freedom of expression includes the right to say things which “right thinking people” consider dangerous or irresponsible or which shock or disturb: see R v Central Independent Television Plc

[1994] Fam 192

at 203 (Hoffmann LJ); Redmond-Bates v DPP (1999) 163 JP 789 (Sedley LJ); Jerusalem v Austria

[2003] 37 EHRR 25

at [32]; Kwiecieň v Poland 9 January 2007

(2007) 48 EHRR 7

at [43]; Application 27935/05 Filipoviç v Serbia 20 November 2007 at [53]. Barendt, Freedom of Speech (2nd ed. 2005) at 76 – 77, in the context of political speech (on which see [58]ff), stated that the exclusion of “all emotive, non-rational expression from the coverage of the principle would be a mistake”. It would “often be hard to disentangle such expression from rational discourse” because “the most opprobrious insult may form part of an otherwise serious criticism of government or of a political figure”. He also stated that, even if it were possible to separate the emotive content from the other parts of a particular publication, “it would be wrong to allow its proscription” because “if speakers could be punished each time they included a colourful, non-rational epithet in their publication or address, much valuable speech would be inhibited”. He concluded that “some margin should be allowed for invective and exaggeration, even if that means some apparently worthless comments are as fully protected as a carefully balanced argument”. The statements of Hoffmann LJ in the Central Independent Television case that “a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom” and that freedom of expression means “the right to publish things which government and judges, however well motivated, think should not be published” and of Sedley LJ in Redmond-Bates v DPP that “freedom only to speak inoffensively is not worth having”, are clearly relevant and have been relied on by courts considering restrictions in codes made pursuant to statutory authority.

[56]For example, in Livingstone v Adjudication Panel for England

[2006] EWHC 2533 (Admin)

, Collins J, considering the Code of Conduct of the Greater London Authority, and referring to Hoffmann LJ’s observations in the Central Independent Television case, stated (at [36]) that “surprising as it may perhaps appear to some, the right of freedom of speech does extend to abuse”. See also Sanders v Kingston

[2005] EWHC 1145 (Admin)

at [77] and the approach of the Court of Appeal in R (Gaunt) v Office of Communications

[2011] EWCA Civ 692

at [27] – [29]. In Gaunt’s case Ofcom had found that a radio interview violated the Broadcasting Code. The Court of Appeal referred to Sedley LJ’s statement in the Richmond-Bates case. But, notwithstanding that and the strength of the right to freedom of expression, the extremely aggressive tone of the interviewer, the constant interruptions, insults, ranting and the lack of any substantive content led it to conclude that Ofcom had correctly concluded the interviewer had broken the relevant provisions of the Broadcasting Code, and that neither the Code nor its application in that case fell foul of Article 10.

[57]Although the fact-sensitive approach (see [49]) means there is no rigid typology of forms of expression (see Clayton and Tomlinson, The Law of Human Rights 2nd ed. 15.297), it has also been said that “the value of free speech in a particular case must be measured in specifics” and that “not all types of speech have an equal value”: Lord Steyn in R v Secretary of State for the Home Department, ex. p Simms

[1999] 3 All ER 400

at 408. See also R (Gaunt) v Office of Communications

[2011] EWCA Civ 692

at [25] per Lord Neuberger MR. In Jerusalem v Austria

(2003) 37 EHRR 25

at [35] it was stated that in examining the particular circumstances of the case, the Court will take the following into account: the position of the applicant who complains that his right to freedom of expression under Article 10 has been violated, the position of the person or institution which has done so, and the subject-matter of the words or conduct about which the complaint is made.

[58]The gradations in the value of free speech also mean that the statements by Hoffmann and Sedley LJJ I have quoted at [55] are particularly relevant in the present context. This is because of the recognition of the importance of expression in the political sphere and that the limits of acceptable criticism are wider in the case of politicians acting in their public capacity than they are in the case of private individuals: see Jerusalem v Austria at [36]. This recognition involves both a higher level of protection (“enhanced protection”) for statements in the political sphere and the expectation that if the subjects of such statements are politicians acting in their public capacity, they lay themselves open to close scrutiny of their words and deeds and are expected to possess a thicker skin and greater tolerance than ordinary members of the public: see Jerusalem v Austria at [38], albeit referring to what journalists and the public say about politicians, and, in a common law context, Lange v Australian Broadcasting Corp.

(1997) 189 CLR 520

, 559 (High Court of Australia). Although the protection of Article 10(2) extends to politicians, the Strasbourg Court has stated that where a politician seeks to rely on it, “the requirements have to be weighed in relation to the open discussion of political issues”: Lingens v Austria

(1986) 8 EHRR 103

at [42].

[59]Mr Hughes submitted (skeleton argument, paragraph 28) that within the category of political speech there are also gradations, and that the “level of political debate that takes place at a Community Council level ought to be less heated and contentious” than debate at the national level. But, whether or not this is so, it is clear, as Mr Hughes also recognised, that political expression at local council level also attracts enhanced protection. In Jerusalem v Austria, whether or not the debate in the Vienna Municipal Council occurred when the Council was sitting as a local authority rather than as the Land (State) Parliament (which it also was), the Strasbourg court stated (at [40]) that “very weighty reasons must be advanced to justify interfering with the freedom of expression exercised therein”.

[60]There may be a difference between manifestations of freedom of expression during a meeting of the Council and such manifestations outside such meetings (see Sanders v Kingston at [77] and [85]) but the enhanced protection can apply whether or not the conduct occurs during such a meeting. So, in Filipoviç v Serbia 20 November 2007, a statement by Mr Filipoviç at a public meeting in a municipal hall that a mayor was guilty of embezzlement attracted the enhanced protection. The meeting was attended by two Deputy Ministers, some eighty local councillors and other leading local figures. Its purpose (see judgment at [15]) was to assess the functioning of the municipality as a whole and those attending were encouraged to share their “critical views”. The statement could not be regarded as one of fact and indeed (see judgment at [54]) it was not corroborated by any relevant evidence. See also Kwiecieň v Poland

(2007) 48 EHRR 7

at [43], in relation to an open letter distributed in a period preceding an election alleging that the Head of District Office who was seeking election carried out duties ineptly and in breach of the law.

[61]This does not mean that everything said by a politician or a member of a local council will attract enhanced protection. I have referred (see [52]) to the way Wilkie J characterised what Councillor Sanders said in Sanders v Kingston. Wilkie J stated (at [79]) that there was nothing in what the Case Tribunal found that Councillor Sanders wrote and said “which could properly be described as political expression of views”. In Livingstone’s case, the then Mayor of London’s words were addressed to a Jewish journalist employed by the Daily Mail, a newspaper which the then Mayor considered had persecuted him and was part of a group which he considered (see

[2006] EWHC 2533 (Admin)

at [8]) had a past record of pre-war support for anti-Semitism and Nazism and what he regarded as its continuing racist bigotry, hatred and prejudice. Mr Livingstone asked the journalist whether he was a German war criminal, and stated inter alia that he “was just like a concentration camp guard”. Collins J (see [36]) had no doubt that the then Mayor was “not to be regarded as expressing a political opinion which attracts the high level of protection” but “indulging in offensive abuse of a journalist whom he regarded as carrying out on his newspaper’s behalf activities which [he] regarded as abhorrent”.

[62]So, how is the line to be drawn? Mr McCracken submitted that sarcasm and lampooning of those who have placed themselves in public office falls within the enhanced protection. He also maintained there should be no sharp distinction between national and local governmental bodies. He relied on the definition from Collins’ Dictionary of the English Language; “of or relating to the state, government, the body politic, public administration, policy, etc”, the speech of Baroness Hale in Campbell v Mirror Group Newspapers

[2004] 2 AC 457

at [148] – [149], and the etymology of the word from the Greek work for city. He relied on etymology in support of his submission that it is clear that the relevant unit of government may be a local one rather than a country but, since ancient Greece consisted of many more or less independent city-states, etymology is of limited assistance in respect of this particular point.

[63]Hare’s contribution to a collection of essays in honour of Sir David Williams observes that beyond obvious illustrations, there are difficulties in defining political expression, and that the variety of formulations in different contexts should “make us hesitate before adopting a view of the importance of political expression which will inevitably lead to further litigation surrounding the definition of its organising concept”: Freedom of Expression and Freedom of Information (OUP 2000), at 108 and 112. In the context of Article 10, Baroness Hale, in Campbell v Mirror Group Newspapers, included the following within the category of political speech:

“…information on matters relevant to the organisation of the economic, social and political life of the country”

. This, she stated, included “revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life”. This is consistent with what was stated in an entirely different context by Lord Hardwicke. In Chesterfield v Janssen (1751) 2 Ves. Sen. 125, at 156; 28 English Reports at 100, he stated that politics “comprehends everything that concerns the government of the country, of which the administration of justice makes a considerable part”.

[64]As to the breadth of the concept of political expression in the Strasbourg jurisprudence, in Thorgeirson v Iceland

(1992) 14 EHRR 843

at [64] (in the context of a complaint by a journalist that criminal defamation proceedings in respect of articles alleging brutality by a police force violated his rights under Article 10) the Court stated:

“there is no warrant in its case law for distinguishing … between political discussion and discussion of other matters of public concern.”

It is in this sense that the statement by Clayton and Tomlinson, 15.284 that “the concept of political expression is broadly interpreted” should be understood. See also Barendt, Freedom of Speech (2nd ed. 2005) who, at 154, refers to “speech in the political sphere”, at 159 to “speech on matters of public concern”, and the passages from 76 – 77 quoted at [55]. See also the cases to which I have referred at [60].

[65]I turn to the application of these principles and factors to the circumstances of the present case and the questions identified by Wilkie J in Sanders v Kingston. I have referred (see [43] – [45]) to the difficulty in excluding common law freedom of expression and Article 10 factors from the question of whether the Standards Committee and the Panel were entitled as a matter of fact to conclude that the claimant’s conduct in respect of the thirteen comments was in breach of paragraphs 4(b) and/or 6(1)(a) of the Code of Conduct. However, for present purposes, as a pure matter of language, and without regard at this stage to my obligation under section 3 of the Human Rights Act to interpret the Code so far as it is possible so as to comply with the requirements of Article 10, I have done so. I shall return to the impact of common law and Convention principles on instruments which affect freedom of expression.

[66]Approaching the first of the questions identified in Sanders v Kingston in this way, I have concluded that the Committee and the Panel were entitled to conclude that the thirteen comments by the claimant breached the Code. First, whether or not it is accurate to characterise the comments as “snide”, they were, as Mr McCracken accepted, sarcastic and mocking. Secondly, the Panel was entitled to take a cumulative view of the effect of the claimant’s postings. In this respect the conduct which has led to the finding of breach and the sanction in this case differs from the conduct in Livingstone and Mullaney. Sanders’s case, of course, involved a course of conduct, albeit over a shorter period. Disregarding Article 10 and section 3 of the Human Rights Act, the use of a sarcastic tone about colleagues on the Council over a long period would justify a conclusion that the claimant had not shown respect and consideration for his colleagues on the Council.

[67]Thirdly, the Panel was entitled to conclude that the tone of the claimant’s postings “publicly ridiculed his fellow members”, particularly in the light of the number of postings and their cumulative effect. The juxtapositioning in different postings of the criticisms of the quality and accuracy of the minutes produced by Cllr Gourlay and the comments about the fact that she had not been elected in a contested ballot (comment (3) and possibly comment (13)), and comment (5) on declarations of interest do make it appear that the comments were intended to undermine her in an unattractive way. Her letter dated 3 March 2009 to the PSOW shows she felt she had been subjected to intense ridicule. These comments and a number of the others could be characterised, as the PSOW did in his submissions to the Panel (decision report, paragraph 3.26) as “snide comments, remarks of a general derogatory nature in a sarcastic tone”. I do not, however, accept Mr Hughes’s submission that the comments on the blog which were found to breach the Code of Conduct challenged the mental capacity of other Councillors. The nearest to this is comment (1) stating that the Council “did not understand the limits of its role”. But that is an allegation of a defect of a different order.

[68]As to the criticism that the Panel also took into account ridicule of the Council itself, I accept Mr Hughes’ submission that, looking at the ruling as whole, notwithstanding the reference to ridicule of “the authority” and “the Council as a body” in paragraphs 4.1.6 and 4.1.9 of the decision report, it was the fact that the claimant’s comments were directed at his fellow members that was the heart of the Panel’s findings.

[69]The Standards Committee and the Panel found that twelve of the thirteen comments breached paragraph 6(1)(a) which applies at all times to a member of a Council whether or not he or she is acting, claiming to act, or giving the impression of acting in the role of Council member It was thus only in respect of comment (5) where the only breach found is of paragraph 4(b) that it was necessary to find that the claimant was so acting, although there were five other comments where breaches of both paragraphs were found. The Panel was entitled to conclude that the claimant was acting in his capacity as a member of the Community Council in respect of comment (5) and the five comments which were found to breach both paragraphs. The claimant’s evidence is that “during both terms of my office [I have] provided information on the website of decisions, comments etc of what goes on at Council meetings and what currently and previously has been hidden from both public and Council/Councillors alike”. I do not accept the claimant’s contention that, because none of the information was confidential to him as a Councillor, his position as a Councillor did not preclude him from speaking out “as a citizen”. Whether or not the information was confidential, some of it was only available to the claimant because of his position, although (see Mullaney’s case at [85(i)] this is not a requirement. Moreover, it was his principal way of communicating with his constituents and others in the community, and the content of his blog was almost exclusively the business of the Community Council.

[70]Mr McCracken submitted (skeleton argument, paragraph 45) that in some contexts, where criticism is the performance of a duty, “the concept of ‘rudeness’ has no place and that it was as absurd for the Panel to condemn a politician for ‘rudeness’ in his sincere criticism of the shortcomings of fellow politicians as it would be to criticise a judge for the offensive nature of his remarks in sentencing a criminal”. He also submitted (skeleton argument, paragraphs 40, 42 and 47) that, since nearly all the comments were true and reflected the past and present failings in the administration of the council’s business, it was those whose actions were reported who brought the council and the office of councillor into disrepute. I reject these submissions. I have concluded that in principle this regular conduct over such a long period did prima facie bring the claimant’s office into disrepute.

[71]I turn to the second and third questions identified in Sanders v Kingston. The submissions by both parties focussed on the position under the Convention and the remainder of this judgment will also do so. Mr Hughes accepted that the finding was prima facie a breach of the claimant’s right to freedom of expression and of Article 10. It is not arguable that the legislative scheme making provision for Codes of Conduct for Councillors or the Codes of Conduct made under the 2000 Act are too uncertain to qualify as being prescribed by law: see Sanders v Kingston at [61] and [84] and Mullaney’s case at [70]. Accordingly, the real issue concerns the third question, whether the restriction was one which was justified by reason of the requirements of (and the application of the factors in) Article 10(2) and I turn to that.

[72]In these proceedings it has not been necessary to consider the distinction in the Strasbourg jurisprudence between facts and value judgments (on which, see Clayton and Tomlinson, The Law of Human Rights (2nd ed.) 15.314 -315) because the Panel’s conclusions proceed on the basis that what was said in the claimant’s comments was true. It stated in paragraph 4.16 that “whether or not what was said is true does not detract from the rudeness, lack of respect and consideration” the claimant’s comments showed to individual members of the Council and the Council as a body. It suffices to say that restrictions on publication of both matters which are factual in nature and are demonstrated to be true, and of value judgments are generally difficult to justify under Article 10(2).

[73]It is common ground that the court, in considering whether the Panel failed to accord sufficient weight to the claimant’s rights to freedom of expression, has to decide for itself whether those rights were accorded sufficient weight, having due regard to the decision of the Panel. The court must “have due regard” to the judgment of the primary decision-maker, in this case the Panel. This is because the Panel, the statutory regulator, consists of persons identified by Parliament to apply the Code because of its knowledge and experience of local government: Mullaney’s case at [72]; Gaunt’s case at [47]; Belfast City Council v Miss-Behavin’ Ltd

[2007] UKHL 19

at [26], [37] and [46]. But “due regard” does not mean that the process is only one of review: it is the court which has to decide whether the Panel has violated the claimant’s right to freedom of expression.

[74]The Code seeks to maintain standards and to ensure that the conduct of public life at the local government level, including political debate, does not fall below a minimum level so as (see decision report, paragraph 4.1.7) “to engender public confidence in local democracy”. Mr Hughes submitted (skeleton argument, paragraph 34) that it seeks to ensure that it does not descend to the level of personal abuse and ridicule “because when debate and public life is conducted at the level of personal abuse and ridicule, the public loses confidence in it and those involved in it”. There is a clear public interest in maintaining confidence in local government. But in assessing what conduct should be proscribed and the extent to which sarcasm and ridicule should be, it is necessary to bear in mind the importance of freedom of political expression or speech in the political sphere in the sense I have stated (at [58] – [64]) it has been used in the Strasbourg jurisprudence.

[75]The fact that more candidates did not come forward at the 2008 election to the Community Council may have reflected the disenchantment of local residents with the Council and loss of confidence in it. That may have been the result of the difficulties which I summarised at [22] – [25] and which led it to be described as a failing Council. It may also in part have been the result of the way the relationships between Councillors had been perceived by those who lived in the Community. Against that background, it is certainly understandable that the Monitoring Officer, the Standards Committee and the Panel were concerned about what was going on in this particular Community Council. It is of some significance that, as well as requiring the claimant to be re-trained as to the requirements of the Code of Conduct, the Standards Committee in this case recommended that other Councillors be re-trained.

[76]It is in the context of what constitutes “respect and consideration” and “bringing your office or authority into disrepute” in a local government context that the Panel’s expertise is of particular relevance. Because of this I have given most anxious consideration to the conclusion that I was minded to reach after considering the oral and written submissions. After doing so, I have nevertheless decided that the Panel fell into error in a number of respects.

[77]The first and most important concerns its approach to “political expression”. Mr Hughes submitted that the Panel and the Standards Committee were correct in finding that the comments found to breach the Code were not expressions of political views because they had “nothing to do with political debate or political views” although, had they related to “political policy or political competence” they might have attracted the enhanced standard of protection: skeleton argument, paragraphs 31 and 29. In his oral submissions, he accepted that some of the comments were either “political” (comment (4)) or “close to political” (comment (1). Although Mr Hughes’s oral submissions focused on the contention that the criticisms of the minutes were criticisms of the literacy of the minute-taker, comments (2), and (11) were (as he recognised in his skeleton argument, paragraphs 29 and 31), concerned with their quality, accuracy, and availability.

[78]The Panel in paragraph 4.1.7 of the decision report states that it did not consider that the blogs were political expression “in the true sense of that meaning”. The factors referred to by the Panel included that “it was all very one-sided”. That does not, however, preclude something being political expression: indeed, some would say that it is a feature of much political expression.

[79]The Panel also stated that the comments were “not an expression of Cllr Calver’s political views or allegiances, nor a response to those expressed by others, nor a critique of any other political view of party” and that the higher level of protection “does not apply here therefore”. But the statements in Filipoviç v Serbia 20 November 2007 (mayor guilty of embezzlement) and in Kwiecieň v Poland 9 January 2007

(2007) 48 EHRR 7

(head of local authority carried out duties ineptly and in breach of the law) are also not expressions of or critiques of political views.

[80]I have concluded that the Panel took an over-narrow view of what amounts to “political expression” (see the authorities discussed at [57] – [64] above) and that, taken in the round, so have the submissions of Mr Hughes on this point. Not all of the claimant’s comments were political expression even in the broad sense the term has been used in this context. It is, for example, difficult to see how comments (3) and (5) qualify, and comment (12) must at best be on the borderline. I have described the comments as sarcastic and mocking, and some as seeking to undermine Cllr Gourlay in an unattractive way. However, notwithstanding what I have said about their tone, the majority relate to the way the Council meetings were run and recorded. Some of them were about the competence of Cllr Gourlay who, albeit in a voluntary capacity in the absence of a Council official, was taking the minutes and no doubt trying to do her best. Others were about the provision of minutes to Councillors or the approach of Councillors to declarations of interest. The comments were in no sense “high” manifestations of political expression. But, they (or many of them) were comments about the inadequate performance of Councillors in their public duties. As such, in my judgment, they fall within the term “political expression” in the broader sense the term has been applied in the Strasbourg jurisprudence. For the reasons given at [55], it is difficult to disentangle the sarcasm and mockery from the criticism of the way Council meetings were run.

[81]Secondly, although the essence of the framework set out by the 2000 Act and the Code of Conduct is to restrict the conduct of Councillors not only vis a vis the public and staff but including that towards colleagues on the Council, no account was taken in the Panel’s decision of what is said in the Strasbourg jurisprudence about the need for politicians to have thicker skins than others.

[82]The fact that the Panel took a narrower view of “political expression” and did not refer to the need for politicians to have thicker skins than others limits the weight that can be given to its findings: see [45] above and Belfast City Council v Miss Behavin’ Ltd. It thus falls to the court to determine whether the restriction in this case was a disproportionate interference with the claimant’s right to freedom of expression without the assistance of the Panel on these questions and accordingly the Panel’s decision has less weight than it otherwise would have.

[83]The requirement of “necessity in a democratic society” in Article 10(2) sets a high threshold. It was made clear in R v Shayler

[2003] 1 AC 247

at [23] by Lord Bingham of Cornhill (citing language used in Strasbourg cases such as Handyside v United Kingdom

(1976) 1 EHRR 737

at [48]) that the concept is less flexible than expressions such as “reasonable” or “desirable”. As to proportionality, in Shayler’s case, Lord Hope stated (at [61]) that those seeking to justify a restriction must establish that “the means used impair the right as minimally as possible”. In Sanders v Kingston Wilkie J recognised that, in the context of political debate, there may be robust and even offensive statements in respect of which a finding that the Code had been breached would be an unlawful infringement of the rights protected by Article 10 (see

[2005] EWHC 1145

(Admin at [77] and [85]) although he found that was not such a case.

[84]Despite the unattractiveness of much of what was posted, most of it was not purely personal abuse of the kind seen in Livingstone’s case. It did not involve a breach of obligation, as the conduct in Mullaney’s case did.Nor does it come close in kind or degree of condemnation to the language which has been held to be “unparliamentary” by the Speaker of the House of Commons. I accept Mr McCracken’s submission that it is necessary to bear in mind the traditions of robust debate, which may include some degree of lampooning of those who place themselves in public office, when deciding what constitutes the “respect and consideration” required by the Code. I have concluded that, in the light of the strength of the right to freedom of expression, particularly in the present context, and the fact that the majority of the comments posted were directed at other members of the Community Council, the Panel’s decision that they broke the Code is a disproportionate interference with the claimant’s rights under

Article 10 of the Convention

[85]At this stage it is necessary to return to the construction of the Code of conduct, but now taking account of the common law and Convention positions on freedom of expression. In Mullaney’s case Charles J described the concepts of “respect” and “acting in an official capacity” as having a chameleon quality dependent on context:

[2009] EWHC 72 (Admin)

at [70]. He stated (at [78]) that, because of Article 10, a narrow approach should be taken to the construction of the Code of Practice. Words and phrases such as “respect”, “consideration”, and “bringing office or authority into disrepute” must be construed in the light of that. Given the “chameleon” or open-textured quality of these terms, and the recognition (see [42]) that at common law freedom of expression has “the status of a constitutional right with attendant high normative force”, in principle a common law narrow construction of the provisions of the Code in accordance with the statement from Lord Hoffmann’s speech in ex p Simms set out at [41] may well mean that the majority of the thirteen comments do not breach paragraphs 4(b) and 6(1)(a). But if it does not, I consider that it is possible to read and give effect to those provisions of the Code in a Convention compatible way. If so, section 3 of the Human Rights Act obliges me and the Panel to do so.

[86]I deal briefly with a number of subsidiary matters. The Panel took into account what it considered were the alternative options open to the claimant. Paragraph 4.1.9, however, wrongly suggested that the claimant had not sought the assistance of the Monitoring Officer. He had in fact done this in relation to the minutes. Also, albeit much earlier, in 2006, he had sought to deal with his concerns about the Council by complaining to the PSOW. He was, however, told (see [23]) that the matter fell outside the PSOW’s remit. Secondly, I am somewhat troubled by the Panel’s reference to resignation as an option available to the claimant if he was “so utterly disgusted” with his fellow Councillors. In respect of the deficiencies in the administrative arrangements concerning declarations of interest and minute-taking at a local representative body which were concerning the claimant, this comes close to a suggestion that one must put up or get out.

[87]I also note that in paragraph 4.1.7 of the decision report, in the context of considering whether the comments amounted to political expression, the Panel took into account the publication of the draft unapproved minutes and what are described as personal comments about the “integrity” of the members and the Council. The Standards Committee had, however, not accepted that the publication of the draft minutes breached the Code or that the claimant had made comments about the “integrity” of the members and the Council.

[88]As to the sanction, this was at the lower end of the sanctions that the Panel could impose. Had the interference been otherwise justified, I would not have been minded to hold that the sanction imposed itself meant the decision was a disproportionate interference with the claimant’s rights under Article 10. I, however, note that the Panel could have simply imposed a requirement of further training without censuring the claimant or found a breach but taken no further action. Albeit in respect of what might well have been a very different factual scenario, that is (see [30]) what the Standards Committee did in respect of the claimant’s complaints about Cllr Hughes’ failures in respect of declarations of interest. Although the Standards Committee found Cllr Hughes had breached the Code, it recommended that no further action should be taken.

[89]In view of my conclusions, it is not strictly necessary to consider the two subsidiary issues to which I referred at [5]. I very much doubt that the fact that the claimant signed a declaration consenting to be bound by the provisions of the Code can make a difference, because he was required by statute so to sign. It cannot be inferred from that statutory requirement that he was required to consent to a Code which included provisions for determinations which would disproportionately restrict his Article 10 rights. Since the Code of Conduct can and must be interpreted so as to give effect to Article 10 rights, the question of whether the Code itself is ultra vires, which was raised contingently by Mr McCracken, does not arise.

[90]For the reasons I have given, the claimant’s application is granted and the Panel’s decision must be set aside.

Cited in 11 later judgments

and 2 more of the most senior