Mock the week?

Rachit Buch reports on a High Court ruling that the censure of a councillor for “sarcastic, lampooning and disrespectful” entries on his blog breached his free speech rights.

In the case of Calver, R (on the application of) v The Adjudication Panel for Wales [2012] EWHC 1172, the High Court has ruled that the decision to censure a Welsh councillor for comments on his blog was a disproportionate interference with his right to freedom of expression. This right requires a broad interpretation of what counts as “political speech” – even when the speech is sarcastic and mocking.

Lewis Malcolm Calver is a councillor on the Manorbier Community Council and Pembrokeshire County Council and the owner/writer of the at www.manorbier.com blog. These proceedings arose when Mr Calver was censured by the Standards Committee for Pembrokeshire County Council for comments or articles on his blog, which criticised the running of Manorbier Council.

Regulation of councillors’ conduct

Councillors’ conduct is subject to regulation through the Local Government Act 2000 (“LGA”), which introduced Standards Committees. The functions of these Committees are “promoting and maintaining high standards of conduct by the members and co-opted members of the authority” (s. 54 LGA).

These standards are maintained largely through the Codes of Conduct, a model version of which exists specifically for Welsh Councils. The Manorbier Code of Conduct requires members “not [to] conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute” and, when acting in the role of councillor, to “show respect and consideration for others.”

The Parliamentary Service Ombudsman for Wales (“PSOW”) is allowed to investigate breaches of the Code of Conduct and to refer cases to the Standards Committee. This regulation mirrors that for England, though the Codes are different.

The offending comments

Mr Calver’s blog contained various comments (set out at para 33 of the judgment) criticising the conduct and operation of Manorbier Council in general and individual councillors in particular. The background to these criticisms is the genuine concern about Manorbier Council that existed, which had prompted a Standards Committee ruling against one of the councillors, as well as a general breakdown in relationships between councillors.

It was during investigations into Manorbier’s councillors that the PSOW discovered Mr Calver’s blog. The Standards Committee decided that various comments breached either one or both of the requirements of the Code of Conduct set out above. Mr Calver appealed to the Adjudication Panel for Wales, on grounds that included violation of Article 10 of the European Convention on Human Rights (the right to freedom of expression), but this was unanimously dismissed. Mr Calver then judicially reviewed this dismissal.

High Court steps in

The judgment of Mr Justice Beatson is thorough in dealing with the facts of the case, but its wider value lies in its discussion of the “underlying principles” of the right to free expression from, §39 onwards.

Beatson J first discusses the common law position that predated the Human Rights Act’s enshrinement of Article 10 into UK law. The important feature highlighted here is that the common law required restrictions on free expression to be explicit, not to be inferred from ambiguous words of an enactment. However, the impact of the European Convention on Human Rights (“ECHR”) is clear: Beatson J noted that even this common law approach developed in large part because of the UK’s ratification of the ECHR.

Another principle discussed is the question of balancing rights. Beatson J states that there is no clear prescription from previous cases as to the priority of freedom of expression over other rights – “the relevant legal principles in this area do not provide the Panel or the court with bright lines… they lead it to a process of balancing a number of interests” (§46).

This balancing exercise is fact-sensitive. Previous cases, such as those that concerned challenges to decisions of the Adjudication Panel for England, are relevant but not determinative. As a simple and common sense guide, Beatson J states that the more egregious the conduct, the easier it is for the court to conduct the balancing exercise and decide the infringement is justified (§49).

Finally, Beatson J emphasised that “freedom of expression includes the right to say things which “right thinking people” consider dangerous or irresponsible or which shock or disturb” (§55), citing numerous authorities in support. It isn’t just friendly, inoffensive speech that is protected: Sedley LJ’s statement (in Redmond-Bates v DPP (1999) 163 JP 789) that “freedom only to speak inoffensively is not worth having” was cited amongst others to this effect.

Linked to this view was the recognition that there can be “gradations in the value of free speech” (§58) – that some types of speech are more worthy than others. This means that political speech is afforded an “enhanced protection” and that politicians acting in their public capacity should “possess a thicker skin and greater tolerance than ordinary members of the public”. But not everything a politician says is political (see Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin) §36 where it was judged that the then-London mayor Ken Livingstone’s comments were not expressing political opinion, but were instead to be seen as simply as the offensive abuse of a journalist). Despite this, Beatson J makes it clear that there is to be a broad interpretation of what counts as political speech.

In applying these principles, the judge decided that Mr Calver’s comments were “sarcastic and mocking”; the Panel was justified in concluding they involved public mocking of colleagues, and so in principle they breached the Code of Conduct by bringing Mr Calver’s office into disrepute. This finding would clearly restrict Mr Calver’s right to freedom of speech.

However, the infringement was not justified. First, the Panel was wrong not to consider the speech as political, as the majority of comments referred to the way the Council meetings were run and recorded. Secondly, the Panel did not consider that politicians, including local councillors, must have “thicker skins” than members of the general public. Though the aims of upholding standards of conduct and confidence in local government were clearly legitimate, the restriction was not a proportional one in pursuance of this aim. Both the common law and the Human Rights Act 1998 means the Code can and should have been interpreted so as to mean Mr Calver’s comments were not a breach.

Comment

This case bolsters the protection of politicians who blog, in certain circumstances, to criticise and offend. The protection of course is not available for all offensive comments. In this case, a local councillor criticised fellow councillors and the way council meetings were run. He did so sarcastically and rudely. But the enhanced protection afforded to political expression covers political comment expressed in a rude manner, and even to the most local level of politics.

The case may have an impact for many. Many local and national politicians regularly blog and tweet, and they will be relieved to know that this can involve “robust and even offensive statements” (paragraph 83) and may even “include some degree of lampooning of those who place themselves in public office” (84).

And of course commentary on political affairs is not limited to politicians. Mr Justice Beatson’s judgment not only draws attention to existing case law on protection of political speech, but gives guidance on how restrictions on free speech – for the clearly legitimate aim of upholding public standards in government – should be interpreted, so as to avoid unlawful infringement on the right to freedom of expression.

Rachit Buch is a pupil barrister at 1 Crown Office Row. This article first appeared on the set’s UK Human Rights blog.