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Elected Members - Freedom of Speech?

A recent judicial review in the Administrative Court has offered clear guidance on statements made by elected members. The Judicial Review provides direction on whether statements as such are able to be made within freedom of speech, or whether that right is qualified as a consequence of the holder being in a political office and therefore subject to a code of conduct.

The case involved a Councillor in Ealing posting on his blog material relating to the Southall area, and made comments about the largely Indian community therein.

As a consequence of this blog, there was extensive local press coverage and a residents' petition from the community in Southall.

A complaint was made to the Monitoring Officer of the Council. This complaint was investigated and a hearing was held where the Councillor was found to have breached the Code of Conduct, in that the blog entry had failed to treat others with respect and had brought the Council and the Office of Councillor into disrepute. The remedy sought was for the Councillor to consider issuing an appropriate apology. The Councillor (who did not attend the hearing) then issued judicial review proceedings to challenge the decision on the basis that :-

(i) the Council had not provided adequate reasons for its decision; and
(ii) that the decision was unreasonable and irrational on the grounds that the blog did not justify the finding of a breach of the Code, and that such a finding was an infringement of his right to free speech pursuant to Article 10 of the Human Rights Convention.

The application for judicial review was dismissed and the reasoning behind the Judgment is particularly helpful when considering whether elected members have breached the Code of Conduct and effectively failed to treat others with respect and/or brought the Council or the Office of Councillor into disrepute.

Dealing with the first point - adequate reasons - the report clearly set out the reasoning for the decision the Council reached and contained an analysis of the Councillors rights under Article 10 and was therefore said to be sound.

Of more interest is how the issue of free speech was dealt with, and the implications of Article 10 of the Human Rights Convention and its interaction with the Standard's regime.

The leading authority referred to in the Judgment is Sanders -v- Kingston, where Wilkie J set out the three questions to determine where a member had breached the Code of Conduct and whether any sanction imposed was proportionate in accordance with Article 10 of the Convention on Human Rights.

The Matters to be determined

Was the Standards Committee entitled as a matter of fact to conclude that the Councillor's conduct was in breach of the relevant paragraphs of the code of conduct?

In this instance, by virtue of the blog and its contents, the Council was in fact entitled to conclude as a matter of fact that there were breaches of the Code.

Was the finding and the sanction in itself a prima facie breach of Article 10?

In this particular case the finding could be said to be a fetter to free speech, as could the sanction requesting an apology.

Is the finding and sanction a proportionate interference with Article 10 rights?

The comments advanced by the member in this case were said not to be the expression of a political view, but an unjustified personal and generic attack on a section of the public. The subjects of the speech were not politicians but ordinary members of the public and, as such, the comments did not attract the higher level of protection applicable to political expressions, and the comments would plainly have undermined confidence in local government and potentially brought the Council into disrepute.