Calver, R (On the Application Of) v The Adjudication Panel for Wales (Rev 2)

Restrictions in a local-government code of conduct must be interpreted consistently with the common-law and Convention protection of freedom of expression. Political expression includes robust criticism of the performance of local councillors in their public duties. It may attract enhanced protection even when expressed sarcastically or mockingly.

The court must decide compatibility with Article 10 for itself, while giving due regard to the specialist decision-maker. The assessment is fact-sensitive. The seriousness and cumulative effect of the conduct, the value of the speech and the public interest in proper standards must be balanced. Personal ridicule may justify restriction, but the threshold is high where the expression concerns local political administration. On the facts, the Panel’s narrow view of political expression and its failure to allow for politicians’ greater tolerance meant that censuring the claimant for thirteen website comments was disproportionate.

The claimant was a member of Manorbier Community Council and also a county councillor. He published comments and draft minutes on a website he owned, criticising the Council, its procedures and individual councillors. The Pembrokeshire County Council Standards Committee found thirteen comments breached paragraphs 4(b) and 6(1)(a) of the Council’s Code of Conduct, censured him and required further training.

The Adjudication Panel for Wales unanimously dismissed his appeal. The claimant sought judicial review, contending that the findings and sanction unlawfully interfered with his freedom of expression under common law and Article 10 of the Convention. The central issues were whether the comments breached the Code, whether the Code and its application engaged Article 10, and whether the interference was justified and proportionate.

1. The application was granted. The Panel’s decision was set aside.
2. The court accepted that the Standards Committee and Panel were entitled, as a matter of language and without yet applying Convention principles, to find that the thirteen comments breached paragraphs 4(b) and 6(1)(a). The comments were sarcastic and mocking, and their cumulative effect could amount to public ridicule of fellow councillors. Paragraph 4(b) required the claimant to be acting, claiming to act, or giving the impression that he was acting as a councillor. Paragraph 6(1)(a) applied at all times.
3. Freedom of expression has constitutional status at common law. Clear words are required to restrict it. The Code therefore had to be construed narrowly where necessary, and section 3 of the Human Rights Act 1998 required a Convention-compatible interpretation if possible.
4. The Panel took an over-narrow view of political expression. Criticism of the conduct and competence of councillors in the performance of public duties may be political expression in the broad Strasbourg sense. Local political expression attracts enhanced protection, and politicians are expected to possess greater tolerance of criticism.
5. The court had to determine compatibility with Article 10 itself, giving due regard to the Panel’s specialist judgment. The Panel’s failure to consider the broader meaning of political expression and the need for politicians to have thicker skins reduced the weight due to its decision.
6. The restriction pursued the legitimate interest of maintaining standards and public confidence in local democracy. However, much of the claimant’s speech concerned the administration of Council business and was not purely personal abuse. Having regard to the strength of the right, the traditions of robust political debate and the cumulative circumstances, the findings and sanction constituted a disproportionate interference with Article 10.
7. The claimant’s statutory undertaking to comply with the Code did not amount to consent to disproportionate restrictions. Since the Code could be interpreted compatibly with Article 10, the contingent ultra vires issue did not arise.

The judgment itself records no prior judicial decision in the same litigation. The claimant challenged the unanimous decision of the Adjudication Panel for Wales dated 25 May 2011, which had upheld the Standards Committee’s decision.