Restrictions on Freedom of Expression

May 21st, 2014 by James Goudie KC in Standards

Heesom v Public Service Ombudsman for Wales [2014] EWHC 1504 (Admin) is a statutory appeal to the Administrative Court in Wales from the Adjudication Panel for Wales.  It concerns a long standing Councillor about whose conduct a complaint was submitted to the Ombudsman by all Flintshire County Council’s Senior Officers.  The Ombudsman referred to the Panel alleged breaches of the Council’s Codes of Conduct.  A Case Tribunal found 14 breaches established and imposed a sanction of disqualification.

Mr Heesom challenged the Tribunal’s decision on three grounds, namely:-

  1. The Tribunal erred in adopting the wrong standard of proof, i.e. the civil as opposed to the criminal standard;
  2. The Tribunal erred in its findings as to breaches of the Codes of Conduct; and
  3.  Insofar as its findings of breach were properly made, the Tribunal erred in finding that they were such as to justify the sanction imposed.

    The appeal thus gives rise to the following important issues:-

  1. The appropriate standard of proof in an adjudication by a Case Tribunal of the Adjudication Panel for Wales; and
  2. The scope of and legitimate restrictions to a politician’s right of freedom of expression under Article 10 of the European Convention for Human Rights (“the ECHR”) and at common law, particularly in relation to officers’ rights and interests which might be adversely affected by the purported exercise of those rights.

    As to (1), Hickinbottom J held that the appropriate standard of proof was the civil standard.

    As to (2), Hickinbottom J formulated the following propositions:-

  1. The enhanced protection accorded to freedom of expression in the political sphere applies to all levels of politics, including local.
  2. Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated.  Whilst, in a political context, Article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false.
  3. Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to “wider limits of acceptable criticism”. They are expected and required to have thicker skins and have more tolerance to comment than ordinary citizens.
  4. Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press; because the right protects, more broadly, the public interest in a democracy of open discussion of matters of public concern. Thus, so far as freedom of speech is concerned, many of the cases concern the protection of, not a politician’s right, but the right of those who criticise politicians.
  5. The protection goes to “political expression”; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views, but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others. The cases are careful not unduly to restrict the concept; although gratuitous personal comments do not fall within it.
  6. The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis. What amounts to a value judgment as opposed to fact will be generously construed in favour of the former; and, even where something expressed is not a value judgment but a statement of fact (e.g. that a council has not consulted on a project), that will be tolerated if what is expressed is said in good faith and there is some reasonable (even if incorrect) factual basis for saying it, “reasonableness” here taking account of the political context in which the thing was said.
  7.  As Article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under Article 10(2), the determinative question is whether the restriction is “necessary in a democratic society”. This requires the restriction to respond to a “pressing social need”, for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
  8. As with all Convention rights that are not absolute, the State has a margin of appreciation in how it protects the right of freedom of expression and how it restricts that right.  However, that margin must be construed narrowly in this context. There is little scope under Article 10(2) for restrictions on political speech or on debate on questions of public interest.
  9. Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the Court.

As regards the position of non-elected public servants, Hickinbottom J observed as follows:-

  1. They are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation, it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration.
  2. Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which non-elected public servants do not.
  3. Where critical comment is made of a non-elected public servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that public servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression.

 

Environment, Highways and Leisure

May 21st, 2014 by James Goudie KC in Environment, Highways and Leisure

The Supreme Court has given Judgment in Barkas v North Yorkshire County Council [2014] UKSC 31, dismissing Ms Barkas’ appeal from [2012] EWCA Civ 1373 and against the rejection of her application to register land as a town or village green under Section 15 of the Commons Act 2006.  The land was provided and maintained by a local authority as “recreation grounds” under what is now Section 12(1) of the Housing Act 1985.  The Supreme Court ruled that, so long as land is held under such a provision, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land “by right” rather than “as of right”, within the meaning of Section 15(2)(a) of the 2006 Act.  The Supreme Court observed that where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land “as of right” simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights.  This means that the decision in Beresford v Sunderland City Council [2004] 1 AC 889, in which the House of Lords held that the public’s use for more than 20 years of land maintained by the local authority with that authority’s knowledge was “as of right”, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was “as of right” rather than by right.

 

Village Greens

May 15th, 2014 by James Goudie KC in Environment, Highways and Leisure

In Church Commissioners v Hampshire County Council [2014] EWCA Civ 634 an application to register a village green just within the 5 year limit failed to comply with the Registration Regulations.  By the time the application was corrected the limit had expired.  The Court of Appeal held that once the application had been corrected it had retrospective effect and was to be treated as having been made on the date on which the (defective) application had been lodged.  The Court further held (by a majority) that what amounts to a “reasonable opportunity” for correction to be made is a question of law for the Court rather than the registration authority.

 

Decision Making

May 1st, 2014 by James Goudie KC in Decision making and Contracts

In R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) a local authority’s decision refusing to renew a sexual entertainment venue licence under the Local Government (Miscellaneous Provisions) Act 1982, as amended, was set aside where, in breach of the authority’s Constitution, the decision was taken by the full panel of twelve councillors instead of the three to whom it was delegated under the Constitution.  Stuart-Smith J emphasized that it is important that the manner in which executive functions are carried out is transparent and reliable.  A decision being taken by the wrong persons is a serious procedural irregularity, especially when political proportionality is involved.

 

Local Government Ombudsman

March 27th, 2014 by James Goudie KC in Non Judicial Control

In R (Nestwood Homes Developments Limited v South Holland District Council [2014] EWHC 863 (Admin) the Council successfully defended a judicial review claim by a developer against the Council’s decision to comply only partly with the Local Government Ombudsman’s (“LGO”) recommendations that it pay compensation for maladministration of over £250,000.  The authority paid £50,000 plus interest.  Applying R (Gallagher) v Basildon DC [2011] PTSR 731, Sales J rejected claims of irrationality, pre-determination and procedural unfairness.  He said that the authority was entitled to take into account the financially straitened circumstances in which it operated in deciding how to respond to the LGO’s recommendations, and had reached a rational conclusion.

Sales J observed as follows, from paragraph 54.  The LGO has power to investigate a complaint of alleged maladministration in connection with a local authority’s administration functions, under sections 24A and 26 of the Local Government Act 1974. A report by the LGO is sent to each person concerned: section 30(1). It can include recommendations to remedy injustice suffered as a result of maladministration: section 30(1A). Where the LGO reports that there has been maladministration, the local authority should inform the LGO of the action it has taken or intends to take: section 31(2). If the LGO is not satisfied with the action proposed by the local authority, then he shall issue a further report and make recommendations: section 31(2A). Where the authority still fails to comply with the recommendations made by the LGO, he can require the authority to publish a statement in two local publications, setting out his recommendations and any other material he requires: section 31(2D), (2E) and (2F). However, the notice need only contain the authority’s reasons for not complying if the authority so decides: section 31(2E)(c). Where the LGO issues a report which makes findings of maladministration, injustice and loss suffered as a result, those findings are binding on the authority unless successfully challenged by way of a judicial review claim.The authority is not obliged to accept and act on the recommendations as to remedy made by the LGO. The authority’s decision how to respond is governed by usual, general public law requirements of good faith, rationality, fairness and so on. The rationality of a proposed response has to be assessed taking account of the binding findings of maladministration, injustice and loss which have been made. The statutory scheme providing for public notice to be given if the LGO is not satisfied with remedial steps taken by an authority indicates that emphasis is placed upon political sanctions and pressure, as opposed to imposition of a simple legal obligation to act upon the LGO’s recommendations. A finding of maladministration does not have the same effect as a finding of breach of some public or private law duty, in relation to which binding legal remedial consequences may be imposed by order of a court. By contrast, “even though a recommendation as to remedy made by the LGO requires to be taken very seriously by an authority to which it is directed, it leaves scope for that authority to have regard to other pressing aspects of the public interest in deciding whether to accept and act upon the recommendation”. There is no statutory duty to give reasons for rejecting a LGO’s recommendation. However, where the authority does provide reasons for rejecting a recommendation, the Court is entitled to examine carefully whether the authority has, first, taken into account relevant considerations and, secondly, has weighed those relevant considerations in a way that a reasonable council should have done. Local authorities decline to accept and act on recommendations regarding remedy made by the LGO in only a tiny proportion of cases. Whilst this serves to emphasise the seriousness with which a local authority should approach a LGO recommendation as to remedy for maladministration, it does not in itself indicate that an authority is required to treat itself as bound to accept and act upon such a recommendation.

Sales J held (paragraphs 61-66) that adequate reasons had been given; (paragraphs 67-72) that excessive weight had not been given to affordability and there had been no failure to consider relevant considerations; (paragraphs 73-80) that there had been no unfairness; (paragraphs 81-86) that there had been no predetermination; and (paragraph 87) that there had been no perversity.

At paragraph 70 he observed: “The financial constraints on the Council … were severe, and the Council was entitled to give them significant weight”; and at paragraph 84: “… some predisposition to wish to conserve the resources of the Council in order to provide services in its area was to be expected …”.

 

Street Entertainment

March 12th, 2014 by James Goudie KC in Environment, Highways and Leisure

R (Keep Streets Live Campaign Limited) v Camden LBC [2014] EWHC 607 (Admin) is a claim for judicial review of Camden’s decision to adopt Part V of the London Local Authorities Act 2000 and to approve a Policy the effect of which is to license busking in Camden’s area.  Patterson J dismissed the claim.

The first ground of challenge was that the Policy was insufficiently certain.  However, as Patterson J observed (para 39): “The requirement of certainty is not one of absolute certainty”; and (para 43): “Given the nature of street entertainment it would be impossible to come up with an absolute definition”.  She concluded (para 48): “There is … sufficient clarity in the drafting of the Policy for a concerned person, with advice if necessary, to know whether there was likely to be a breach of licence conditions or a requirement to obtain a licence”; and (para 49): “… the Policy is sufficiently comprehensible”.

The second ground of challenge was that the Policy was adopted on an unlawful basis.  Patterson J rejected this challenge.  The statutory preconditions for making a scheme had been satisfied.

The third ground of challenge was that the Policy infringed ECHR Art 10.  Patterson J, however, held that the Policy was necessary and proportionate.  She held (para 101) that busking “is not the most important right of free expression in a democratic society.  It is not akin to political speech”.  Although Art 10 was engaged, “it operates at a low level”.  The scheme did not stop people busking in Camden, and (para 102) limiting busking to prevent obstructions of the highway or the creation of nuisance was “an acceptable interference with Article 10 rights”.  In applying the proportionality analysis, the Court held that there was a “pressing social need” to regulate busking (nuisance/obstruction), and existing powers available to the Council (e.g. enforcement under the Environmental Protection Act 1990) were not equivalent to the powers under the 2000 Act for dealing with buskers in a comprehensive way.

Patterson J concluded (para 122) that Camden “has adopted a policy which, in my judgement, is both necessary and a proportionate response to the issue of busking.  It has striven to introduce a policy which holds the ring between promoting economic growth through fostering dynamic busking activity across the Borough but balancing that with the requirements of its residents and other economic activity which contributes to the well being of Camden”. 

 

Non-Domestic Rates

March 6th, 2014 by James Goudie KC in Council Tax and Rates

The Strasbourg Court has on 4 March 2014 given Judgment in the case of the Church of Jesus Christ of Latter-Day Saints v UK, Case 7552/09.  The Church alleged that the denial of the exemption from business rates, under the Local Government Finance Act 1988, reserved for buildings used for public religious worship, in respect of its Temple at Preston, Lancashire, gave rise to violations of its rights under Article 9 of the ECHR and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14.

On 30 July 2008 the House of Lords had unanimously held, [2008] UKHL 56, that, as a matter of UK domestic law, a place of “public religious worship” must be one that is open to the general public. Four of the five Law Lords further dismissed the applicant’s arguments under the ECHR, holding that the liability to pay 20% business rates on the Temple did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular

The Strasbourg Court held, by a majority, that the complaint under Article 14 taken in conjunction with Article 9 was admissible. However, the Court held, unanimously, that there had been no violation.  There was no differential treatment.  Moreover, any prejudice caused to the Church was reasonably and objectively justified, and any interference was within the UK’s wide margin of appreciation with respect to the public interest and matters of general social strategy.

The conclusion was expressed at para 35 as follows:-

“In conclusion, insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom. It follows that the Court does not find that the applicant Church has suffered discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 9.”

 

GPOC

March 6th, 2014 by James Goudie KC in Decision making and Contracts

There is an area within Harrogate known as the Stray.  It is proposed as the finish of the first stage of the Tour de France 2014.  There is a snag.  The Stray is governed by the Harrogate Stray Act 1985 (“the 1985 Act”).  The Stray is owned by the Duchy of Lancaster and managed by the Harrogate Borough Council (“the Council”).  Council wishes to use GPOC under Section 1 of the Localism Act 2011 (“the 2011 Act”), but this is prevented by Section 2 of the 2011 Act, on account of the 1985 Act.  The Council asked the Secretary of State (“the SoS”) to use his powers under Section 5 of the 2011 Act to make an Order temporarily (23 June – 8 July 2014) to disapply or amend parts of the 1985 Act to enable the Stray to be used for the sole purpose of hosting the Tour de France.  The SoS has, following a 6 week consultation, agreed.  He has issued a draft.  The Harrogate Stray Act 1985 (Tour de France) Order 2014, to be laid before Parliament, in accordance with Section 7(2) of the 2011 Act, and an accompanying Explanatory Document.  The SoS is satisfied that the draft Order serves a purpose under Section 5(1) of the 2011 Act, that the conditions under Section 6(2) have been met, and that the appropriate consultation has been carried out in accordance with Section 5(7).

This is the first time the SoS has used his powers under Section 5 of the 2011 Act.  Appendix A to the Explanatory Document details the Parliamentary scrutiny procedure that follows the laying of the draft Order (the negative resolution procedure).

With respect to GPOC, the Explanatory Document stated that the Council had presented a “compelling case” to host the Tour de France 2014: “the general power of competence is a broad power and the economic merits of hosting the Tour are significant”.  GPOC applied, because an individual with full capacity would have the power to hold a cycle race on someone else’s land, subject to complying with any applicable legal restrictions and obtaining the landowner’s consent.

The SoS considered whether to seek to amend the 1985 Act.  However, this would likely take more time than is available and involve more public resource, including more Parliamentary time.  The 2011 Act was expressly drafted to allow for the temporary repeal by Order of primary legislation, and so is “ideally suited to the purpose”.

The Explanatory Document observes that no precedent is set for any future events on the Stray.  If the Council wished again temporarily to disapply Sections of the 1985 Act in order to use GPOC to host an event on the Stray, another Order under the 2011 Act would be required again to amend the 1985 Act for that purpose, and the same statutory process would apply to any such future 2011 Act Order.

The SoS’s decision making process was governed by considerations of “proportionality” (para 3.5 of the Explanatory Document), “fair balance” between public and private interests (para 3.6), “necessary protection” (para 3.7), and “reasonable expectation” of being able to exercise “rights and freedoms” (para 3.8).  Further, the SoS is satisfied that the draft Order under the 2011 Act is compatible with ECHR rights (para 3.16) and with legal obligations arising from membership of the EU (para 3.17).

Chapter 4 of the Explanatory Document sets out in detail the consultation undertaken. Those who supported the proposal included the Duchy of Lancaster.

 

Decision Making

February 27th, 2014 by James Goudie KC in Decision making and Contracts

As Cranston J observed at the outset of his Judgment in Bishops Stortford Civic Federation v East Hertfordshire District Council [2014] EWHC 348 (Admin) the case was a judicial review that raised some “important issues” about the “lawful operation of local government and the role of the Courts”.  The main issue arose out of the intervention by Councillor Tindale at a (Planning) Committee Meeting.

Cranston J set out the following principles:-

  1. Unless there is an express provision in the Council’s Constitution or other documents preventing attendance, any Councillor can, with the Committee’s permission, in principle attend and address it: para 30;
  2. There are, however, limits, as where the Councillor has a disqualifying interest, but participation in the development of policies and proposals should not normally exclude from decision making Meetings: para 31;
  3. Councillor Tindale’s motives were irrelevant in law: para 33;
  4. As regards whether Councillor Tindale’s address had “polluted the well”, a detailed analysis of what Members said is neither necessary nor appropriate: “the cut and thrust of political debate is not conducive to refined textual analysis”: para 37;
  5. In the case of a collective decision, one has to consider the “general tenor of the discussion” rather than the individual views of Committee Members, “let alone the precise terminology used”: para 39;
  6. “The taking of statements when councillors are asked to explain their voting is especially to be deplored”: Prudence is the sensible judicial approach in this context”: para 41.

 

Public Sector Equality Duty

February 12th, 2014 by James Goudie KC in Decision making and Contracts

PSED claims continue to be pursued.  In R (Rotherham MBC and others) v SoS for BIS (2014) EWHC 232 (Admin) the claim succeeded (paras 84-93 inc): (i) there is no duty to carry out a formal EqIA; (ii) the duty is at most to consider undertaking an EqIA, along with other means of gathering information, and to consider whether it is appropriate to have an EqIA; (iii) the requirement is to have “due regard” to the statutory requirements in s149(1) of the Equality Act 2010; (iv) that is regard that is “appropriate in all the circumstances”; and (v) if an authority’s decision is a high level budget decision a PSED may be carried out “further down the line”; BUT (vi) the decisions in this case were “in no sense preliminary or provisional”; and (vii) an after the event assessment “cannot save the decision making”.  This was an instance of a PSED challenge succeeding where other challenges (to the Regional allocation of EU Structural Funds) failed.  In R (Unison) v Lord Chancellor [2014] EWHC 218 (Admin) all the challenges (to ET and EAT fees) failed, including (paras 57-69) PSED and (paras 70-90 inc) indirect discrimination, failed, notwithstanding that it is a “continuing duty”; “the … importance of the duty”, and the facts that the duty is “an essential preliminary to public decision-making”, is not a matter of ticking boxes, and “must be undertaken conscientiously and with rigour”, and that the authority “must collect, collate and consider all relevant information as to the likely impact of the proposals”.  However, “the weight to be given to countervailing factors is a matter for the assessment of the public authority and not for the Court, unless that assessment can be challenged on conventional public law grounds as being outwith the range of reasonable conclusions”; and “it is for the public authority to decide what is relevant and irrelevant, subject only to challenge on conventional grounds”; and an authority “cannot be expected to speculate, investigate or explore matters ad infinitum” or “to make assessments with a degree of forensic analysis which a QC might deploy in Court”.  The Divisional Court approved the summary of the principles applicable to the s149 duty by Wilkie J in R (Williams) v Surrey County Council [2012] EqLR 656 at para 16.  It could not be maintained that the Lord Chancellor did not consider the differential impact on groups with various protected characteristics merely because he dismissed those concerns.  Any defects in his conclusions which triggered a public law remedy should be dealt with in the substantive grounds of challenge, and not by way of criticism of the lengthy and detailed review undertaken in the assessment before the conclusions were reached.

 

 

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