Restrictions on Freedom of Expression

May 21st, 2014 by James Goudie KC

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.

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