Sanders v Kingston

An appeal under the Local Government Act 2000 may engage with the merits while according appropriate respect to a specialist tribunal. A councillor’s freedom of expression is engaged where sanctions are imposed for words spoken or written, but the protection afforded to political expression depends on the substance and context of the expression. Personal anger and abusive attacks do not receive the heightened protection given to political opinion merely because they arise from a political controversy. Code provisions requiring respect and prohibiting conduct reasonably regarded as bringing an office or authority into disrepute were sufficiently certain and could lawfully restrict expression. The breach finding was upheld, but a two-year disqualification was replaced by a one-year partial suspension because the tribunal had failed to consider relevant sanction guidance and exceptional electoral circumstances.

Mr Sanders, a former leader of Peterborough City Council, appealed under section 79(15) of the Local Government Act 2000 against a Case Tribunal decision finding breaches of paragraphs 2(b) and 4 of the Council’s code of conduct. The breaches concerned disrespectful correspondence with Carrickfergus Borough Council and offensive comments made to journalists and broadcasters about the death of a young soldier and people in Northern Ireland.

The tribunal disqualified Mr Sanders from local-authority membership for two years. The appeal challenged the tribunal’s jurisdiction and reasoning, the certainty of the code, fairness under Article 6, the compatibility of the breach finding and sanction with Article 10, and the proportionality of the sanction.

1. The appeal was governed by section 79(15) of the Local Government Act 2000 and CPR rule 52.11. The court could review the merits, while giving appropriate deference to the specialist Case Tribunal, particularly on primary factual findings and discretionary matters.

2. The tribunal’s decision was sufficiently reasoned. It was entitled to assess the media comments in the round and to rely on the admitted use of offensive language without determining every precise word used.

3. Paragraphs 2(b) and 4 of the code were sufficiently precise to constitute restrictions prescribed by law. Respect was capable of application by a reasonable person, and conduct reasonably regarded as bringing an office or authority into disrepute identified a sufficiently clear standard.

4. The use of material obtained during an investigation involving compulsory powers did not make the hearing unfair under Article 6. The tribunal’s use of the interview material was sparse and added nothing material to statements otherwise available.

5. Article 10 was engaged. The tribunal had erred by failing to consider it. Nevertheless, the correspondence and broadcasts were principally personal anger and vulgar abuse, rather than political expression. The fact that the speaker was a councillor and the subject matter had a political background did not alter that conclusion.

6. The restrictions pursued the legitimate objective of maintaining minimum standards of conduct in local government. Applying the proportionality approach in R (Daly) v Secretary of State for the Home Department (2001) 2 AC 532, the breach finding and notification to the Council were justified under Article 10(2). The court nevertheless recognised that applying the code to genuinely political opinions expressed offensively could, in another case, unlawfully infringe Article 10.

7. The disqualification sanction was wrong. The Ethical Standards Officer had failed to draw the tribunal’s attention to the sanction guidance, and the tribunal had been unaware of exceptional circumstances, including Mr Sanders’s re-election after the events and the resulting significance of the electoral mandate. The appropriate order was a partial suspension for one year from holding the office of leader of the Council, beginning on 7 September 2004.

The appeal was dismissed as to the breach finding and allowed as to sanction.

The judgment does not state a prior court decision. It was a statutory appeal from the Case Tribunal’s decision dated 7 September 2004 under section 79(15) of the Local Government Act 2000.