Livingstone v Adjudication Panel for England

A local authority code of conduct may regulate conduct outside a member’s official capacity only where it is properly connected with the performance of the member’s functions, including misuse of the member’s position. It does not extend generally to private life. Restrictions on freedom of expression must be shown to be necessary and proportionate under Article 10. Offensive abuse remains protected unless it falls within a clearly established legal exception. Personal misconduct does not necessarily bring the office itself into disrepute. A tribunal must distinguish damage to the office from damage to the office-holder. On the facts, remarks made while the Mayor was off duty and being doorstepped by a journalist did not fall within the Code, and the suspension was in any event excessive.

The appellant, the Mayor of London, appealed under section 79(15) of the Local Government Act 2000 against a Case Tribunal decision that he had failed to comply with the Greater London Authority’s Code of Conduct. The Tribunal found that remarks made to an Evening Standard journalist outside City Hall breached paragraph 4 of the Code and imposed a four-week suspension. The suspension had been stayed pending the appeal.

The appeal raised the scope of the Code, the meaning of conduct undertaken in performing a member’s functions, the application of Article 10, the distinction between personal and official disrepute, the proper approach to an appeal under CPR 52.11, and the proportionality of the sanction.

1. The appeal was allowed. The Tribunal’s finding that the appellant had failed to comply with the Code was set aside. The suspension was quashed.

2. The Tribunal had jurisdiction to determine whether procedural defects made it unfair or abusive to proceed, but it had to apply the statutory scheme and could not determine the vires of statutory provisions. Such a challenge had to be brought by judicial review. The observation was made without full argument.

3. Section 52 of the Local Government Act 2000 limited the reach of the Code through the words requiring a member to observe it in performing his functions. Those words did not confine the Code solely to formal official acts. They could include conduct outside official capacity where the member was using or misusing his position as a member. They did not, however, regulate unrelated private conduct. The phrase “in any other circumstance” in paragraph 4 of the Code therefore required a narrow construction.

4. The appellant was not acting in his official capacity when he was approached outside City Hall after the reception. His remarks were made while he was off duty and were not part of the performance of his functions. The journalist’s question about the reception did not create the necessary connection. Paragraph 4 consequently did not apply.

5. Article 10 applied. Although the enhanced protection for political expression was not engaged, freedom of expression extended to offensive abuse unless restricted by a lawful and clearly justified exception. The burden was on the party seeking to justify the interference. The Tribunal had not shown that applying the Code in these circumstances was necessary in a democratic society.

6. Bringing the office-holder into personal disrepute was not equivalent to bringing the office into disrepute. Misuse of office could affect the office’s reputation, but personal misconduct would not necessarily do so. The Tribunal had failed to recognise that distinction.

7. The appropriate appellate approach was generally review, giving weight to the expertise of the tribunal. The appeal nevertheless turned principally on statutory construction and Article 10, matters on which the Tribunal’s expertise carried less weight. The suspension was clearly wrong and disproportionate in any event.

• Case Tribunal of the Adjudication Panel for England: found that the appellant had failed to comply with the Code of Conduct and directed a four-week suspension from 1 March 2006.
• High Court (Administrative Court): allowed the appeal, set aside the finding of non-compliance and quashed the suspension.