Dennehy, R (on the application of) v London Borough of Ealing

A local authority standards finding may lawfully restrict a councillor’s freedom of expression where the impugned material is an unjustified personal and generic attack on ordinary members of the public, rather than political expression. The court must determine substantive compatibility with article 10, applying the structured questions of whether the conduct breached the code, whether the finding or sanction interfered with article 10, and whether that interference was justified under article 10(2). Political expression attracts enhanced protection, but that protection does not extend equally to abusive or personal attacks. Reasons may be adequate when read in context, including with an investigation report known to the affected person. A limited request for an apology and neutral publication of the finding may constitute a proportionate interference.

The claimant, an elected councillor, sought permission to apply for judicial review of a Standards Committee decision that comments on his blog breached Ealing Council’s 2007 Code of Conduct. The Committee found that the comments failed to treat others with respect and could reasonably be regarded as bringing the Council and the office of councillor into disrepute. It requested an apology and authorised publication of a summary of its decision.

The claimant pursued two grounds: that the Committee gave inadequate reasons, and that its decision was unreasonable, irrational and incompatible with common-law and article 10 freedom of expression. The central issues were whether the reasons were adequate and whether the finding and resulting measures were a justified and proportionate restriction on political speech.

1. Permission refused. The application for judicial review was unarguable.
2. The adequacy of reasons depends on the context, the nature of the decision and the standpoint of an informed audience. The Committee’s minutes and letter, read with the investigation report—which the claimant knew and had materially contributed to—adequately identified the relevant passages and explained the finding. The Committee was entitled to distinguish between legitimate topics for public debate and the inappropriate tone and content used to address them (paras [43]-[44]).
3. The court applied the three questions identified in Sanders v Kingston [2005] EWHC 1145 (Admin): whether the conduct breached the Code; whether the finding or sanction constituted an interference with article 10; and whether that interference was justified under article 10(2) (para [47]).
4. The Committee was entitled to find that the comments failed to treat residents with respect and brought the Council and the office of councillor into disrepute. The finding and measures engaged article 10, but were justified. The comments about Southall residents appeared in a distinct part of the blog and amounted to an unjustified personal and generic attack on a section of the public, rather than the expression of a political view. The enhanced protection afforded to political expression therefore did not apply in the same way. The measures also served the recognised aim of maintaining confidence in local government (paras [47]-[48]).
5. The interference was limited. The claimant was requested, rather than compelled, to apologise, and the Committee’s findings were reported neutrally in the local press and on the Council’s website (para [47]).