May 4th, 2012 by James Goudie KC

In R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) Mr Calver was a member of Manorbier Community Council who successfully challenged the decision of the Panel to dismiss his appeal against a decision by Prembrokeshire County Council Standards Committee censuring him for a number of comments or blogs posted by him on a website he owned and controlled.  Beatson J said, at para 5 of his Judgment: 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 (“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.”

Beatson J ruled (paras 66-67) that (1) the Committee and the Panel were entitled to conclude that Cllr Calver’s comments breached the Code of Conduct: they were sarcastic and mocking; (2) the Panel was entitled to take a cumulative view of the effect of the postings: the use of a sarcastic tone about colleagues on the Council over a long period would justify a conclusion that Cllr Calver had not shown respect and consideration for his colleagues on the Council; and (3) the Panel was entitled to conclude that the tone of the postings publicly ridiculed his fellow members, particularly in the light of the number of postings and their cumulative effect.

However, it was necessary then to go on to consider whether, a finding of breach of the Code of Conduct being prima facie an infringement of Article 10, it was justified.   Beatson J said: 

“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: … 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 … “to engender public confidence in local democracy”. … 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 …”

“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. …”

Beatson J went on, however, to find that the Panel had fallen into error in a number of respects.  He concluded (para 80) that the Panel took an over-narrow view of what amounts to political expression, and (para 81) that no account was taken in the Panel’s decision about the need for politicians to have thicker skins than others.  Those errors limited the weight that could be given to its findings.  It thus fell to the Court to determine the issue of proportionately according to the Panel’s decision less weight than it would otherwise have.  Beatson J concluded (para 84):  “… 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.”


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