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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Calver, R (On the Application Of) v The Adjudication Panel for Wales (Rev 2) [2012] EWHC 1172 (Admin) (03 May 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/1172.html Cite as: [2012] EWHC 1172 (Admin), [2013] PTSR 378 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
2 Park Street, Cardiff, CF10 1ET |
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B e f o r e :
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The Queen on the application of Lewis Malcolm Calver |
Claimant |
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- and - |
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The Adjudication Panel for Wales |
Defendant |
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- and - |
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Public Services Ombudsman for Wales |
Interested Party |
____________________
The Defendant did not appear and was not represented
Gwydion Hughes (instructed by Public Service Ombudsman for Wales) for the Interested Party
Hearing date: 3 April 2012
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Crown Copyright ©
Mr Justice Beatson :
The legal framework
"Members must carry out their duties and responsibilities with due regard to the need to promote equality of opportunity for all people, regardless of their gender, race, disability, sexual orientation, age or religion, and show respect and consideration for others."
The "selflessness" principle prohibits members from using their position as members to improperly confer advantage on themselves. The "leadership" principle requires them to "respect the impartiality and integrity of the authority's statutory officers and its other employees".
"2(1)…You must observe this Code of Conduct …
(a) whenever you act, claim to act, or give the impression you are acting in the role of member of the authority to which you were elected or appointed;
(b) whenever you act, claim to act, or give the impression you are acting as a representative of your authority; or
(c) at all times and in any capacity, in respect of conduct identified in paragraphs 6(1)(a) and 7."
…
4. You must
…
(b) show respect and consideration for others;
…
6(1). You must
(a) not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute."
"(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers….
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of…the protection of the reputation or rights of others, …"
The factual background
The decision of the Standards Committee
(1) "Manorbier Community Council does not seem to understand the limits of its role. This lack of understanding is difficult to comprehend following the advice received from Lawrence Harding the Pembrokeshire County Council Monitoring Officer." (Code, paragraph 6(1)(a)).
(2) "Anybody who attended the October meeting would have great difficulty in relating the actual events to the draught [sic] minutes above. Anybody looking at these minutes at some time later, such as next year, would not have any ideas to what was agreed, discussed or expenditures approved. The draught [sic] has just blown the facts away. There are more holes in the Draught [sic] Minutes than in Swiss Cheese." (Code, paragraphs 4(b) and 6(1)(a)).
(3) "Ms Gourlay has tried many times to be elected by ballot and failed. She has succeeded in becoming a Councillor as no ballot was had". (Code, paragraphs 4(b) and 6(1)(a)).
(4) "Disgraceful manipulation of children [by Mr Wales – now ex Councillor] to influence a lawful planning application. Mr Wales…has now left [Manorbier Community Council] leaving the Council in a mess." (Code, paragraph 6(1)(a))
(5) "Councillor Gourlay at this stage state that she was an expert on declarations of interest. It is not known where Councillor Gourlay acquired her expertise (or her present place of employment?." (Code, paragraph 4(b)).
(6) "Manorbier Community Council as a ship will sail on until members of the Community realise how much of their money has been wasted over the last year and how much dealing has been carried out in secret meetings." (Code, paragraph 6(1)(a)).
(7) "… the past two and a half years in the absence of a competent clerk has proved very costly to the ratepayers of Manorbier." (Code, paragraphs 4(b) and 6(1)(a)).
(8) "Manorbier Community Council both in the recent past and in the present seems to live in the land of secrecy with many skeletons in the cupboard which will eventually come out." (Code, paragraph 6(1)(a)).
(9) "The staffing committee has with the indulgence of other past Councillors…cost the charge payers of Manorbier in excess of £55,000." (Code, paragraph 6(1)(a)).
(10) "Manorbier Community Council meeting, Monday 1st September Manorbier Councillors through its Chairman strive to stop this website publishing draft minutes of Council meetings…the reason this website published the draft minutes is to show their poor quality and it will not be browbeaten by anyone who wishes to inflict censorship…Cllr Hughes informed Cllr Calver that he was not prepared to supply him with signed corrected minutes using the feeble excuse that somebody might forge his signature…perhaps both Cllr Hughes as Chairman and Cllr Williams, the deputy chairman (who is believed to have been an ex-headmaster) should have been concerned about the standard of the draft minutes that were being displayed on this website and described by Mr Crocker as being of poor quality. One can only wonder at the statement by the chairman that the council would have collapsed had Ms Gourlay not volunteered for the role where she acted firstly as the Proper Officer and secondly as the writer of the minutes…resigning as Proper Officer in her letter to the council." (Code, paragraphs 4(b) and 6(1)(a)).
(11) "For a Chairman of a Community Council who has just had the benefit of being trained to suggest that he would not provide signed copies of council meetings to fellow councillors beggars belief, perhaps he beliefs (sic) that he is above the law of the land which states that the minutes of council meetings have to be signed 'as being a true and accurate record of the meeting' and then become placed in the public domain and open to inspection by any member of the public." (Code, paragraph 6(1)(a)).
(12) "The website will of course continue to publish both draft and the agreed signed minutes with or without the co-operation of the Council." (Code, paragraphs 4(b) and 6(1)(a)).
(13) "…In regard to the 'backdoor' method of becoming a Councillor…not one Councillor, so far, has actually been elected to represent the people." (Code, paragraph 6(1)(a)).
In the remainder of this judgment I identify the comments by the bracketed number at the beginning of each of them.
The decision of the Panel
"3. The allegations considered by the Appeal Tribunal were that Cllr Calver had breached Manorbier Community Council's Code of Conduct by publishing derogatory website comments about two fellow Community Councillors, and by bringing his office and/or Manorbier Community Council into disrepute.
…
5. At a hearing on 25 May 2011 at the Lamphey Court Hotel, Lamphey, Pembrokeshire, the Appeal Tribunal found by unanimous decision that Cllr Calver failed to comply with Manorbier Community Council's Code of Conduct, upholding the decision dated 5 November 2010 of the Standards Committee, both as to breach and sanction."
"4.1.5 In relation to breach of paragraph 4(b), the code of conduct applies only when a member is acting in his official capacity. The content of Cllr Calver's website posting or blogs comprised on draft, unapproved, minutes of the Community Council, his opinion and comments about those minutes and about the character and ability of some of the members of the Community Council, the Community Council as a body and how it and certain members conducted themselves. He also alluded to secrecy, connivance, mal-administration, financial mis-management and incompetence and much of this was within his knowledge only because he was an elected member of that authority. He was discussing the affairs and business of his council and his purpose and intention was to inform the people of the community about council or, as he put it, what was going on. Whilst Cllr Calver did not identify himself as the blogger of the owner of the website, those details were easily ascertainable, i.e. that the blogger was Malcolm Calver and that he was a member of that authority. Whilst Cllr Calver says he was not acting in his official capacity, it is an objective test which applies. The Appeal Tribunal concluded that a member of the public reading the website would have the impression, and reasonably so, that Cllr Calver was acting as a member of the Manorbier Community Council.
4.1.6 In relation to paragraph 4(b), having concluded that Cllr Calver was acting in his official capacity, the Appeal Tribunal then considered whether Cllr Calver's posting failed to show respect and consideration for others. The Appeal Tribunal is aware that Cllr Calver asserts that everything he said was true and is aware, from the information before it, of the failings of the Manorbier Community Council. The Appeal Tribunal also notes that Cllr Calver asserts that his motivation was informing the public.
It nevertheless remains the case that Cllr Calver published draft, unapproved minutes after the Community Council had passed a resolution that he should not do so; that he criticised the draft minutes as not being an accurate record of the meeting and the competence of their author; he made personal, snide, remarks about the competence, integrity and character of members of the authority and alluded to alleged breaches by some members of the code of conduct. Whether or not what was said is true does not detract from the rudeness, lack of respect and consideration all of this shows to individual members of the council and the council as a body.
Cllr Calver could have properly addressed his concerns at the next meeting/s thereby allowing others to respond to his views and have their say, allowing a debate and if needs be, a vote. It would have been respectful and considerate for him with the benefit of his experience as a longstanding community and county councillor, to have offered held to those he considered to be less competent and able than himself. Indeed if he was so utterly disgusted with his fellow members on the Community Council, he could have resigned. Instead, he chose to 'bitch from the sidelines' to coin a phrase used by Mr Gwydion Hughes.
4.1.7. Inevitably, the Appeal Tribunal's finding that Cllr Calver has breached the code of conduct by speaking in a way which was inconsiderate and disrespectful to others is, on a superficial level, a breach of his right to freedom of expression under Article 10(1). The Appeal Tribunal does not consider that Cllr Calver's blogs were political expression in the true sense of that meaning; he anonymously blogged on his website by publishing draft unapproved minutes, criticising their content and the competence of their author and made personal comments about the integrity, etc. of the members and the council. It was all very one-sided. It was not an expression of Cllr Calver's political views or allegiances, nor a response to those expressed by others, nor a critique of any other political view or party. The higher level of protection afforded by Article 10(2) to political expression does not apply here therefore. The provisions of the 2008 code of conduct were prescribed by law and the code of conduct is the ethical framework within which local government operates. It sets minimum standards of conduct in public life and upholds those standards of conduct so as to engender public confidence in local democracy. It goes far beyond dealing with corruption; it includes, obviously, a requirement that councillors should treat each other and others with respect and consideration and, as a matter of fact, it is of course perfectly possible to be critical of others without also showing them disrespect or lack of consideration.
4.1.8 Although the Appeal Tribunal has decided that Cllr Calver was acting in his official capacity, it is worth noting that by virtue of paragraph 2(1)(s) the (2008) code of conduct is engaged 'at all times and in any capacity' in respect of conduct identified in paragraph 6(1)(a) (ie. conduct capable of bringing the office of member or the authority into disrepute.
4.1.9 Cllr Calver was a longstanding and experienced member of the failing Manorbier Community Council; he was also a county councillor. There were various options available to Cllr Calver including seeking to assist those he regarded as incompetent and inexperienced, distancing himself entirely from the failing council by resigning, or seeking the assistance of the monitoring officer. He did none of these. He publicly ridiculed his fellow members and the authority of which he was a member. The Appeal Tribunal conclude that if the reasonable man were asked for his view of Cllr Calver's behaviour, he would say it fell short of that expected, under the code of conduct, of an elected member; and to such extent that it brought his office and his authority into disrepute.
4.1.10 The Appeal Tribunal accordingly decided by unanimous decision to uphold the Standards Committee's determination dated 5 November 2010, that Cllr Calver had breached Manorbier Community Council's code of conduct."
Discussion
(1) Were the Standards Committee and the Panel entitled as a matter of fact to conclude that the claimant's conduct in respect of the thirteen comments was in breach of paragraphs 4(b) and/or 6(1)(a) of the Code of Conduct?
(2) If so, was the finding in itself or the imposition of a sanction prima facie a breach of Article 10?
(3) If so, was the restriction involved one which was justified by reason of the requirements of Article 10(2)?
"…information on matters relevant to the organisation of the economic, social and political life of the country".
This, she stated, included "revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life". This is consistent with what was stated in an entirely different context by Lord Hardwicke. In Chesterfield v Janssen (1751) 2 Ves. Sen. 125, at 156; 28 English Reports at 100, he stated that politics "comprehends everything that concerns the government of the country, of which the administration of justice makes a considerable part".
"there is no warrant in its case law for distinguishing … between political discussion and discussion of other matters of public concern."
It is in this sense that the statement by Clayton and Tomlinson, 15.284 that "the concept of political expression is broadly interpreted" should be understood. See also Barendt, Freedom of Speech (2nd ed. 2005) who, at 154, refers to "speech in the political sphere", at 159 to "speech on matters of public concern", and the passages from 76 – 77 quoted at [55]. See also the cases to which I have referred at [60].