Judge quashes censure of councillor for "sarcastic and mocking" comments

A High Court judge has quashed the censuring of a councillor in Wales for “sarcastic and mocking” comments and blogs he posted on his website.

Lewis Calver successfully argued that the censure breached his right to freedom of expression under Article 10 of the European Court of Human Rights, even though Mr Justice Beatson accepted that the councillor had prima facie brought his office into disrepute.

Calver was a member of the Community Council in Manorbier, a tourist resort in South Pembrokeshire with a permanent population of about 700.

He was elected to the community council in 2004 and returned unopposed in 2008, when he was also re-elected to Pembrokeshire County Council for a ward including Manorbier.

As a member of the community council, he was required to undertake to abide by its Code of Conduct, adopted pursuant to the Local Government Act 2000. Paragraphs 4(b) and 6(1) of the Code respectively required members to “show respect and consideration for others” and not to “conduct [themselves] in a manner which could reasonably be regarded as bringing [their] office or authority into disrepute”.

In Calver, R (on the application of) v Public Services Ombudsman for Wales [2012] EWHC 1172 Calver challenged the decision of the Adjudication Panel for Wales on 25 May 2011 to dismiss his appeal against a decision by Pembrokeshire County Council’s standards committee.

The standards committee had concluded that a number of comments or blogs posted by Calver on his www.manorbier.com website had breached the relevant paragraphs of the Code. It censured the councillor and required him to attend a training sessions with the council’s monitoring officer.

The investigation into Calver had been instigated by the Public Service Ombudsman for Wales and referred to the standards committee.

Mr Justice Beatson, sitting in Cardiff, found that the committee and the Panel were entitled to conclude that the 13 specific comments by Calver breached the Code. This was because:

  • “Whether or not it is accurate to characterise the comments as snide, they were….sarcastic and mocking”;
  • The Panel was entitled to take a cumulative view of the effect of the claimant’s postings;
  • The Panel was entitled to conclude that the tone of the claimant’s postings “publicly ridiculed his follow members”, particularly in the light of the number of postings and their cumulative effect.

The judge added that in principle the councillor’s regular conduct over a long period did prima facie bring the claimant’s office into disrepute.

Mr Justice Beatson acknowledged that the Code sought to maintain standards and to ensure that the conduct of public life at the local government level, including political debate, did not fall below a minimum level so as to engender public confidence in local democracy.

He added: “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 in the sense I have stated it has been used in the Strasbourg jurisprudence.”

Mr Justice Beatson said the fact that more candidates did not come forward at the 2008 election to the community council (all candidates were returned unopposed) might have reflected the disenchantment of local residents with the council and a loss of confidence in it.

Against this backdrop and difficulties that led the community council to be described as a failing council, it was understandable that the monitoring officer, the standards committee and the Panel were concerned about what was going on. It was significant that the standards committee had recommended that other councillors, not just Calver, should be re-trained as to the requirements of the code.

The judge also said that he recognised the Panel’s expertise in what constitutes “respect and consideration” and “bringing your office or authority into disrepute” in a local government context.

But “after most anxious consideration” he nevertheless decided that the Panel had fallen into error in a number of respects.

The first and foremost error concerned the panel’s approach to political expression. Factors cited by the Panel included that Calver’s comments had all been very one-sided, but the judge argued that this did not preclude something being political expression. “Indeed, some would say that it is a feature of much political expression,” he said.

Mr Justice Beatson concluded that the Panel took an over-narrow view of what amounts to 'political expression'.

“Not all of the claimant’s comments were political expression even in the broad sense the term has been used in this context,” he said. It was difficult to see how some of the comments qualified, and another was at best on the borderline.

The judge said: “I have described the comments as sarcastic and mocking, and some as seeking to undermine [another councillor] in an unattractive way. However, notwithstanding what I have said about their tone, the majority relate to the way the council meetings are run and recorded.”

Mr Justice Beatson said the comments “were in no sense ‘high’ manifestations of political expression”. But they (or many of them) were comments about the inadequate performance of councillors in their public duties. As such, they fell within the term ‘political expression’ in the broader sense the term has been applied in the Strasbourg jurisprudence.

“For the reasons given, it is difficult to disentangle the sarcasm and mockery from the criticism of the way council meetings were run,” the judge added.

Mr Justice Beatson also said that, although the essence of the framework set out by the 2000 Act and the Code of Conduct was to restrict the conduct of councillors not only vis a vis the public and staff but including that towards colleagues on the council, no account had been taken in the Panel’s decision of what was said in the Strasbourg jurisprudence “about the need for politicians to have thicker skins than others”.

The fact that the Panel had taken a narrower view of political expression and did not refer to the need for politicians to have thicker skins limited the weight that could be given to its findings.

The judge said that “despite the unattractiveness of much of what was posted”, most of it was not purely personal abuse of the kind seen in the Livingstone case.  Neither did it involve a breach of obligation, as the conduct in the Mullaney case did, nor did it come close in kind or degree of condemnation to the language which has been held to be “unparliamentary” by the Speaker of the House of Commons..

Mr Justice Beatson concluded that 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 was a disproportionate interference with Calver’s rights under Article 10 of the ECHR.

He therefore granted the claimant's application and set aside the Panel's decision.

Philip Hoult