QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
ON APPEAL FROM THE ADJUDICATION PANEL FOR WALES
The Civic Centre
B e f o r e :
| PATRICK HEESOM
|- and -
|THE PUBLIC SERVICES OMBUDSMAN
|- and -
|THE WELSH MINISTERS
James Maurici QC and Gwydion Hughes (instructed by Katrin Shaw, Legal Adviser,
The Public Service Ombudsman for Wales) for the Respondent
Gwion Lewis (instructed by the Treasury Solicitor)
for the Interveners (written submissions only)
Hearing dates: 1-4 April 2014
Crown Copyright ©
Mr Justice Hickinbottom :
i) The case tribunal erred in adopting the wrong standard of proof, i.e. the civil as opposed to the criminal standard.
ii) The case tribunal erred in its findings as to breaches of the Codes of Conduct.
iii) Insofar as its findings of breach were properly made, the case tribunal erred in finding that they were such as to justify the sanction imposed.
i) The appropriate standard of proof in an adjudication by a case tribunal of the Adjudication Panel for Wales.
ii) The scope of and legitimate restrictions to a politician's right of freedom of expression under article 10 of the European Convention for on Human Rights ("the ECHR") and at common law, particularly in relation to civil servants' rights and interests which might be adversely affected by the purported exercise of those rights.
The Legal Framework in Wales
"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."
"Promotion of Equality and Respect for Others
4. Members of the Authority:
(a) 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,
(b) must not do anything which compromises, or which is likely to compromise, the impartiality of the Authority's employees."
"Duty to Uphold the Law
(b) must not in their official capacity or otherwise behave in a manner which could be reasonably regarded as bringing the office of Member or the Authority into disrepute; ...".
"4. You must –
(a) carry out your duties and responsibilities with due regard to the principles that there should be equality of opportunity for all people, regardless of their gender, race, disability, sexual orientation, age and religion;
(b) respect and consideration for others;
(c) not use bullying behaviour or harass any person; and
(d) do anything which compromises, or which is likely to compromise the impartiality of those who work for, or on behalf of, your authority."
"6(1) You must –
(a) not conduct yourself in a manner which could reasonably be regarded as bringing your office into disrepute;...".
"… that the matters which are subject of the investigation should be referred to the President of the Adjudication Panel for Wales for adjudication by a tribunal falling within section 76(1)."
i) It must decide whether or not the member has failed to comply with the Code of Conduct (section 79(1)).
ii) If it finds such a failure, it must then decide whether the nature of the failure is such that the member should be suspended from that authority (wholly or partially) or disqualified from that or any other authority (section 79(3)).
iii) Where the case tribunal decides to suspend or partially suspend a member as member, it must decide upon the period of suspension, which must not exceed one year or, if shorter, the remainder of the member's term in office (section 79(5)).
iv) Where the case tribunal decides to disqualify a member, again it must decide upon the period of disqualification, which must not exceed five years (section 79(6)).
The Legal Framework in England
i) The Localism Act 2011 has been largely rejected by the Welsh Ministers as being inappropriate to the social policy agenda in Wales.
ii) The Welsh Ministers were confident that the Ombudsman, adopting a robust approach, could sift out any minor, vexatious and politically-motivated complaints made in Wales.
iii) Thus, the Welsh Ministers were not persuaded that the ethical standards system in Wales was in need of reform. That was confirmed in the Welsh Government White Paper, "Promoting Local Democracy" (May 2012).
iv) That remains their view. They refer to paragraphs 16-19 of the Committee for Standards in Public Life Annual Report 2011-12, which expressed concerns about what the Committee regarded as inadequate sanctions in the new English scheme, which were restricted in essence to "criminal law or… the ballot box".
v) The Welsh Ministers remain of the view that the scheme in Wales complies with article 10 of the European Convention.
Article 10 of the European Convention on Human Rights
"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 and penalties as are prescribed by law and are necessary in a democratic society, … for the protection of the rights and interests of others…".
Thus, the right is not absolute: it may be restricted if (and insofar as) restriction is prescribed by law and "necessary in a democratic society for the protection of the rights and interests of others".
"42. The Court recalls that the freedom of expression, enshrined in paragraph 1 of article 10, constitutes one of the most essential foundations of a democratic society and one of the basic conditions for its progress. Subject to paragraph 2 of article 10, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'.
While freedom of expression is important for everyone, it is especially so for an elected representative of the people. He represents his electorate, draws attention to their preoccupations and defends their interests. Accordingly, interferences with the freedom of expression of an opposition Member of Parliament, like the applicant, call for the closest scrutiny on the part of the Court.
43. In the case under review, Mr Castells did not express his opinion from the senate floor, as he might have done without fear of sanctions, but chose to do so in a periodical. That does not mean, however, that he lost his right to criticise the Government.
In this respect, the pre-eminent role of the press in a State governed by the rule of law must not be forgotten. Although it must not overstep various bounds set, inter alia, fro the prevention of disorder and the protection of the reputation of others, it is nevertheless incumbent on it to impart information and ideas on political questions and on other matters of interest.
Freedom of the press affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of their political leaders. In particular, it gives politicians the opportunity to reflect and comment on the preoccupations of public opinion; it thus enables everyone to participate in the free political debate which is at the very core of the concept of a democratic society."
I have quoted that early case at some length because it reflects a number of the propositions that are developed in later cases.
i) The enhanced protection applies to all levels of politics, including local (Jerusalem, especially at ).
ii) Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated (see, e.g., de Haes at -, and Mamère at : see also Calver at  and the academic references referred to therein). Whilst, in a political context, article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false (R (Woolas) v Parliamentary Election Court  EWHC 3169 at )
iii) Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to "wider limits of acceptable criticism" (see, e.g., Janowski at ; but it is a phrase used in many of the cases). They are expected and required to have thicker skins and have more tolerance to comment that ordinary citizens.
iv) Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press; because the right protects, more broadly, the public interest in a democracy of open discussion of matters of public concern (see, e.g., Janowski at ). Thus, so far as freedom of speech is concerned, many of the cases concern the protection of, not a politician's right, but the right of those who criticise politicians (e.g. Janowski, Wabl and Jerusalem). Castells, of course, was both; the senator criticising politicians within the Spanish Government through the press.
v) The protection goes to "political expression"; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views (Calver at ), but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others (Thorgeirson at : see also Calver at  and the academic references referred to therein). The cases are careful not unduly to restrict the concept; although gratuitous personal comments do not fall within it.
vi) The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis (e.g. Lombardo at , Jerusalem at  and following, and Morel at ). What amounts to a value judgment as opposed to fact will be generously construed in favour of the former (see, e.g., Morel at ); and, even where something expressed is not a value judgment but a statement of fact (e.g. that a council has not consulted on a project), that will be tolerated if what is expressed is said in good faith and there is some reasonable (even if incorrect) factual basis for saying it, "reasonableness" here taking account of the political context in which the thing was said (Lombardo at ).
vii) As article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under article 10(2), the determinative question is whether the restriction is "necessary in a democratic society". This requires the restriction to respond to a "pressing social need", for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
viii) As with all Convention rights that are not absolute, the State has a margin of appreciation in how protects the right of freedom of expression and how it restricts that right. However, that margin must be construed narrowly in this context: "There is little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest" (see, e.g., Lombardo at -, Monnat at ).
ix) Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the court (Lombardo at ).
"The Court also notes the Commission's reasoning that civil servants acting in an official capacity are, like politicians, subject to the wider limits of acceptable criticism. Admittedly those limits may in some circumstances be wider with regard to civil servants exercising their powers than in relation to private individuals. However, it cannot be said that civil servants knowingly lay themselves open to close scrutiny of their every word and deed to the extent to which politicians do and should therefore be treated on an equal footing with the latter when it comes to the criticism of their actions.
What is more, civil servants must enjoy public confidence in conditions free from perturbation if they are to be successful in performing their tasks and it may therefore prove necessary to protect them from offensive and abusive attacks when on duty. In the present case the requirements of such protection do not have to be weighed in relation to the interests of the freedom of the press or of open discussion of matters of public concern since the applicant's remarks were not uttered in such a context."
i) Civil servants are, of course, open to criticism, including public criticism; but they are involved in assisting with and implementing policies, not (like politicians) making them. As well as in their own private interests in terms of honour, dignity and reputation (see Mamère at ), it is in the public interest that they are not subject to unwarranted comments that disenable them from performing their public duties and undermine public confidence in the administration. Therefore, in the public interest, it is a legitimate aim of the State to protect public servants from unwarranted comments that have, or may have, that adverse effect on good administration.
ii) Nevertheless, the acceptable limits of criticism are wider for non-elected public servants acting in an official capacity than for private individuals, because, as a result of their being in public service, it is appropriate that their actions and behaviour are subject to more thorough scrutiny. However, the limits are not as wide as for elected politicians, who come to the arena voluntarily and have the ability to respond in kind which civil servants do not. This proposition has recently been emphasised and applied in Mamère (Director of the Central Service for Protection of Ionising Radiation criticised and called a "sinister character" by the leader of the Green Party in France, for his response to the Chernobyl disaster), Bugan v Romania (2013) Application No 13284/06 (management of public hospital criticised by a journalist) and July v France (2013) 57 EHRR 28 (judges investigating the death of another judge criticised by his widow in the press as being biased, slow and conducting a farcical investigation).
iii) Where critical comment is made of a civil servant, such that the public interest in protecting him as well as his private interests are in play, the requirement to protect that civil servant must be weighed against the interest of open discussion of matters of public concern and, if the relevant comment was made by a politician in political expression, the enhanced protection given to his right of freedom of expression (see also Mamère at ).
The Scope of the Appeal
"The burden so assumed [by the appellant] is not the burden of proof normally carried by a claimant in first instance proceedings where there are factual disputes. As appellant, if he is to succeed, he must persuade the appeal court or tribunal not merely that a different view of the facts from that taken below is reasonable and possible, but that there are objective grounds upon which the court ought to conclude that a different view is the right one. The divide between these positions is not caught by the difference between a perceived error and a disagreement. In either case the appeal court disagrees with the court below, and, indeed, may express itself in such terms. The true distinction is between the case where an appeal court might prefer a different view (perhaps on marginal grounds) and one where it concludes that the process of reasoning, and the application of the relevant law, require it to adopt a different view. The burden which an appellant assumes is to show that the case falls within this latter category." (emphasis in the original).
To that extent, in respect of factual issues, the court must engage with the merits.
i) The tribunal has been assigned, by the elected legislature, the task of determining the relevant issues. In my view, although it is a more forceful point in respect of issues where the legislature has not provided an appeal, this is relevant even in an open-ended appeal such as this.
ii) It is a specialist tribunal, selected for its experience, expertise and training in the task (see Sanders v Kingston (No 1)  EWHC 1145 (Admin) at  per Wilkie J, and Livingstone v Adjudication Panel for England  EWHC 2533 at  per Collins J).
iii) It has the advantage of having heard oral evidence (Todd v Adams & Chope (trading as Trelawney Fishing Co)  EWCA Civ 509 at  per Mance LJ (as he then was), Assicurazioni Generali SpA v Arab Insurance Group  EWCA Civ 1642 at 17 per Clarke LJ (as he then was))
i) Moving outside factual issues, if the issue is essentially one of statutory interpretation, the deference due may be limited (see Livingstone at ).
ii) If it is one of disputed primary fact which is dependent upon the assessment of oral testimony, the deference will be great: the appeal court will be slow to impose its own view, and will only do so if the tribunal below was plainly wrong (Dupont at , Sanders (No 1) at , Subesh at  and Assicurazioni Generali at ).
iii) CPR Rule 52.11 expressly enables the appeal court to draw inferences it considers justified in the evidence. Where an appeal court is asked to draw an inference, or question any secondary finding of fact, it will give significant deference to the decision of the tribunal below, and will only find it to be wrong if there are objective grounds for that conclusion (Subesh).
iv) Where the issue is essentially one of discretion, the court will only interfere if the tribunal was plainly wrong. The sanction imposed – if the case tribunal do not err in approach – falls into this category (Sanders v Kingston (No 2)  EWHC 2132 (Admin) at  per Sullivan J (as he then was)).
v) Similarly, where an evaluative judgment has to be made on the primary facts, involving a number of different factors that have to be weighed together. In respect of such open-textured issues, Beatson J said in Calver (at ):
"The relevant legal principles in this area do not provide the panel or the court with bright lines… They lead to a process of balancing a number of interests."
R (Mullaney) v Adjudication Panel for England  EWHC 72 (Admin) at - per Charles J is to the same effect. These are therefore matters of balance and degree, in respect of which different tribunals could legitimately come to different conclusions: and the more factors there are to weigh, and/or the vaguer the standard being applied, the more reluctant an appellate court will be to interfere (Assicurazioni Generali at , citing with approval Pro Sieben Media AG v Carlton UK Television Limited  1 WLR 605 at page 612).
"The approach is a general one, having neither need nor scope for sophisticated refinement."
"1. Can we as a panel as a matter of fact conclude that the [Appellant's] conduct amounted to a relevant breach of the Code of Conduct?
2. If so, was the finding of a breach and the imposition of a sanction prima facie a breach of article 10?
3. If so, is the restriction involved one which is justified by reason of the requirement of article 10 subparagraph 2."
Question 1 requires consideration of the Code of Conduct interpreted without reference to article 10 rights, those being taken into consideration in question 2. Those three questions go primarily to breach. The tribunal considered the actual sanction to be imposed separately, in their Sanction Decision. It is rightly common ground before me that, if article 10 is engaged and a prima facie breach of it found, then the actual sanction imposed has to be proportionate and justified under article 10(2).
i) Such a two-stage process to ascertain whether there has been a prima facie breach of article 10 is not mandatory, so long as the case tribunal answer the ultimate question (i.e. has there been any such prima facie breach of article 10) properly.
ii) If this staged approach is adopted, care must be taken if a breach of the Code is found in question 1, i.e. without any consideration of the rights to freedom of speech. Leaving aside the impact of the common law and article 10 on the construction issue, it must not infect or otherwise influence consideration of question 2. Answering question 1 positively is merely a precondition to proceeding to question 2.
iii) Although analytically sound, in my judgment it will not usually be necessary in practice to consider the construction of the Code of Conduct twice, namely without and then with the interpretative constraints of the common law or article 10. If, as a result of Wilkie J's first two questions, something said is regarded as prima facie in breach of article 10(1), then in practice it matters not whether it is said that that is so because of a construction point on question 1 or because of the scope of article 10(1) in question 2. Indeed, there is a risk of circularity; because the construction of the Code with the rights of freedom of speech in mind will be driven by the answer to the question of whether a finding of breach would be a prima facie breach of those rights.
iv) In my view, there is no need to refer to sanction at all in question 2: if a finding of breach is made, then the tribunal will need to go on to consider what, if any, sanction over and above the finding of breach should be applied. The question will then arise as to whether a particular sanction would be disproportionate. The point here is that a finding of breach in itself may be an interference with article 10 rights, which requires justification by the State under article 10(2).
i) Leaving aside any restriction on interpretation as a result of article 10 and common law rights of freedom of expression, was the case tribunal entitled as a matter of fact to conclude that the Appellant's conduct in respect of each of incidents of which complaint was made breached the provisions of paragraphs 4 and/or 6 of the relevant Code of Conduct?
ii) If so, was the finding in itself a prima facie breach of article 10(1)?
iii) If so, was the restriction involved by the finding justified by reason of article 10(2)?
The Appropriate Respondent
The Standard of Proof
"That must be so because sections 168 and 169 of the [Representation of the People Act 1983] make provision for prosecution on indictment of those allegedly guilty of corrupt practice and for the summary prosecution of those allegedly guilty of illegal practice, section 106(1) refers to people being guilty of an illegal practice and section 106(4)… provides that those reported by an election court to be personally guilty of a corrupt or illegal practice are subject to the penal consequence of severe electoral disqualifications. In R v Rowe ex parte Mainwaring and Others  1 WLR 1059 the Court of Appeal was satisfied that it would not be desirable to have a different standard of proof in different courts on the same issue."
No adverse comment was made on that standard of proof when the decision was challenged in the Divisional Court. Mr Henderson submitted that the same standard of proof should be applied in this case which is (he contended) materially similar.
i) There is only one civil standard of proof, namely the balance of probabilities (In re B (Children) (Care Proceedings: Standard of Proof)  UKHL 35 at  per Lord Hoffman, and R (LG) v Independent Appeal Panel for Tom Hood School  EWCA 142 at  per Wilson LJ (as he then was)).
ii) As Mr Henderson concedes, proceedings before a case tribunal of the Adjudication Panel for Wales are civil in nature. On the basis of the criteria in Engel v Netherlands (No 1) (1976) 1 EHRR 647, they are clearly civil.
iii) As civil proceedings, the starting point is that the standard of proof should be civil (R (McCann) v Manchester Crown Court  UKHL 39 at  per Lord Steyn).
iv) Allegations before a case tribunal do not have to be of conduct that is criminal: none of the conduct alleged against the Appellant was criminal.
v) The proceedings are disciplinary in nature; and the potential consequences of such proceedings for the individual subject (e.g. in terms of ability to work) is well-recognised as being insufficient to warrant introduction of the criminal standard. The additional potential consequence of depriving electors of their choice of representative is also, in my view, insufficient.
vi) I do not consider the two authorities relied upon give Mr Henderson any great support. Watkins v Woolas was a very different case. The Electoral Court was charged with determining whether the respondent was "guilty" of illegal practice, which is a necessarily a crime. Although not criminal in form, the proceedings therefore have criminal connotations. In the Divisional Court's view, it appears to have been the possibility of a fine resulting from the Electoral Court's findings that required the degree of certainty inherent in the criminal standard to apply (see ). Similarly, Matyjek. Although the Lustration Court is not a criminal court, the initiator of the proceedings has the same powers as a prosecutor, the person the subject of the proceedings receives the same procedural guarantees as if he had been charged with a crime, the judges are criminal judges, and it operates on a model based on the Polish Code of Criminal Practice. The potential penalty was particularly severe, not only because of its length (10 years), but because it extended to professions as well as political posts. Thus, the court remarked (at [51) that the proceedings "have a strong criminal connotation".
vii) It is in my view significant that the civil standard of proof has been applied by case tribunals in Wales and England for over 10 years, and has not been questioned. When appeals and judicial reviews have come to the High Court, the standard has never been questioned there, either. In my judgment, the point has not been taken before, because it is a point of no substantial force: the appropriate standard is civil – and clearly so.
Mutual Trust and Confidence
"41. … The councillors are not employees of the council. All councillors have responsibilities either as officers, chairs of committees or simply as members of a committee where they are individually and jointly responsible for its remit. No individual councillor is a free agent operating on his/her own behalf.
42. Councillors are an integral part of the council. They do not operate on their own behalf… To a large extent they are the council in operation at senior level and they expect a service from employees…
43. … It is not possible therefore for a council to detach itself from the actions of councillors in the workplace which impact on the ability of an employee to execute his contract of employment. They are a significant part of the working environment and must be under a duty of trust and confidence…".
Moores therefore assists Mr Maurici, not Mr Henderson. That judgment was delivered 15 years ago, and Mr Henderson, despite his diligent searches, has been unable to find any authority to contradict or question it in the field of employment law, since.
"The Court observes that the local government system of [the United Kingdom] has long resided on a bond of trust between elected members and a permanent corps of local government officers who both advise them on policy and assume responsibility for the implementation of policies adopted. That relationship of trust stems from the right of council members to expect that they are being assisted in their functions by officers who are politically neutral and whose loyalty is to the council as a whole…. [I]t is also to be noted that members of the public are equally entitled to expect that in their dealings with local government departments they will be advised by politically neutral officers who are detached from the political fray."
There can be no doubt that the bond referred to is mutual.
The Incidents upon which the Allegation are Founded
Incident 1: People and Performance Scrutiny Committee Meeting (14 February 2007)
i) The description of the management of the department as a shambles and shambolic by the Appellant comprised comments of political expression, which attracted enhanced protection. Therefore, whilst it was a failure to show respect to others within the terms of the 2001 Code of Conduct, the tribunal considered that a finding of breach of the Code would have been a breach of the Appellant's article 10 rights. Consequently, no breach was found.
ii) In relation to the threat to Ms Lewis and Ms Mullaney that a number of managers had gone and there were more to go, the tribunal considered that this was borderline, but fell within the scope of political expression. They accepted that the two officers were of a senior level, and hence would have a greater degree of robustness. They also accepted that the comments "have to be viewed in the context of criticism of the directorate as a whole earlier in the meeting". However, they said:
"… [T]he comments were a threat. The [Appellant] was an elected councillor and therefore had a quasi-employer status towards employees of the Authority and as such the comment could break the obligation of mutual trust between employer and employee. These lead us to a conclusion that restricting the [Appellant's] article 10 and common law rights is justified and proportionate…".
They found that what was said was a failure to show respect and consideration to others, and was a "serious breach" of paragraph 4(a) of the 2001 Code of Conduct.
Incident 2: Housing Allocation: The Mills/Dodd Exchange
"(1) As regards the procedure to be followed, an authority's allocation scheme shall be framed in accordance with the principle prescribed in this regulation.
(2) A member of an authority who has been elected for the electoral division or ward in which –
(a) the housing accommodation in relation to which an allocation decision falls to be made is situated, or
(b) the person in relation to whom that decision falls to be made has his sole or main residence,
shall not, at the time the allocation decision is made, be included in the persons constituting the decision-making body."
In line with those provisions, it is the policy of the Council that the allocation of accommodation should be made by an officer, and not a member of the Council.
Ground 2: Possession proceedings have been commenced in respect of the dwelling-house on specified grounds, or notice of such proceedings has been served.
Ground 2A: A suspended possession order on specified grounds is in force.
Ground 3: The accommodation afforded by the dwelling-house is substantially more extensive than is reasonably required by the proposed assignee.
Ground 4: The extent of the accommodation afforded by the dwelling-house is not reasonably suitable to the needs of the proposed assignee and his family.
i) The Appellant involved Councillor Attridge, as the Executive Member for Housing. On 25 May, the Appellant wrote to Mr Davies asking him to a meeting and suggesting that, at that meeting, Councillor Attridge would "confirm his intention to override the officer's objections and enable the exchange". No such meeting ever took place; but the case tribunal found that this was an attempt by the Appellant to involve himself in the decision-making process, and Councillor Attridge never stated that his intention was to seek to override the officer's decision (paragraph 3.18 of the Findings of Fact). The suggestion that that was Councillor Attridge's intention was false.
ii) On 11 June, the Appellant told Councillor Attridge, falsely, that the Mr Davies had agreed to the mutual exchange. That was relayed to Mr Birchett, who did not act on it, because he checked with Mr Davies who confirmed it was false.
iii) The case tribunal found (paragraph 3.1 of the Findings of Fact) that Mr Davies advised the Appellant of the serious implications for the tenants if the Appellant were to advise them to move properties without the appropriate Council authority. However, the Appellant nevertheless indicated to officers that he intended telling the applicants to proceed with the mutual exchange, despite the Council's decision to refuse it. Eventually, on 9 August 2007, he did write to the both sets of applicants advising them to do so: the case tribunal found that the letters were intended to encourage, and purportedly authorised, such exchange (paragraph 3.38). The move was prevented by Ms Williams, who attended the Mills' family home on 15 August, to find a removal van at the door. The case tribunal found that, had she not intervened, the exchange would have gone ahead, with grave consequences for both sets of tenants including the loss of their secure tenancies and costs (paragraph 3.53). It found that this was not, as the Appellant suggested, an intended temporary arrangement; but a proposed permanent exchange which the Appellant has advised and encouraged the tenants to do (paragraph 3.36 and following).
iv) On 4 August 2007, the Appellant emailed Mr Cockerton saying that he (the Appellant) could not justify refusal of the application, his advice was that the exchange should go ahead, and "if it gets to court then I am sure the judge will rule accordingly". On 6 August, he wrote to Mr Cockerton again, saying that, if the exchange were not agreed, it could escalate into a "highly legal challenge". The case tribunal found that this envisaged an unapproved exchange taking place, with the Council taking possession proceedings thereafter (paragraph 3.35).
v) On 16 October 2007, the Appellant emailed Mr Cockerton expressing frustration and anger at the "unreasonable interference by a line manager", and saying he was going to see Mr Davies to seek the suspension of Ms Williams and would be calling a special full council meeting immediately. The next day, 17 October, the Appellant wrote to Mr Davies as the Council's Monitoring Officer seeking the immediate suspension of Ms Williams for refusing the application for mutual exchange, saying, "I have to insist on the suspension of this officer forthwith…"; although, in fact, Ms Williams had merely done her job and resisted pressure from the Appellant.
"I don't think he [i.e. the Appellant] had done anything wrong. I think he had been attempting as best he could to make sure that the transfer took place under the appropriate policy and concerns relating to the parlour room etc were resolved. So what he was doing was asking for reviews of decision made to make absolutely certain that they complied both with the policy and custom and practice."
Mr Henderson complained that this evidence, with its assessment of the Appellant's conduct, is not even referred to in the Findings of Fact.
Incident 3: Senior Sheltered Housing Officers Meeting 4 July 2008
"Bullying always has to be viewed from the perspective of the alleged victim."
This appears to be a reference to the Ombudsman's Guidance to the Code of Conduct for members of Local Authorities in Wales (September 2012), issued after the events but prior to the issue of the tribunal's findings. That states:
"You must not use any bullying behaviour or harass any person including… council officers….
Bullying behaviour attempts to undermine an individual or a group of individuals, is detrimental to their confidence and capability, and may adversely affect their health.
This can be contrasted with the legitimate challenges which a member can make in questioning policy or scrutinising performance. An example of this would be debates in the chamber about policy, or asking officers to explain the rationale for the professional opinions they have put forward. You are entitled to challenge fellow councillors and officers as to why they hold their views.
I will always consider allegations of bullying and harassment from the perspective of the alleged victim. The question to be answered is whether the individual was reasonably entitled to believe they were being bullied rather than whether the person accused of bullying thought that he or she was doing so…
There can be no hard and fast rules governing every set of circumstances but the relative seniority pf the officer will be a factor in some cases…".
i) The case tribunal particularly referred to bullying as "more significant" (paragraph 30 of the Breach Decision).
ii) Without the intention of intimidating or undermining the junior officer, it becomes a lot more difficult to justify the interference with the Appellant's enhanced article 10 rights.
Incident 4: Visioning Day
"If you have an interest in the future of the council wardens service and the related issues of council sheltered accommodation for pensioners, could you have a look at the attached papers which attempt to set out the background to these issues.
Officers have arranged a visioning day on Friday the 7th November but as an elected member and an executive member for this service there are aspects to this event which have not been agreed or scoped with elected members.
The substance of the event is in part the advice arising from a consultant's report commissioned in January 2007 and delivered to the council in later 2007.
The report was heavily critical of the service but officers have failed to bring it to committee through the normal channels and with background advice.
This note seeks to advise you of some of the background and within it there is a concern expressed that the officers are taking a view distinctly separate from that of elected members."
"4.1 Concern has to be expressed about this calling of this 'visioning day'. As executive members, Helen Yale and I have repeatedly sought assurances from the Director [Ms Lewis] for confirmation of the instructions as stressed last July, but we were not given an insight into this meeting until a day ago the 5th November.
4.2 At the 5th November meeting it was transparently evident from the papers prepared for the meeting on the 7th, that the intention of that meeting was to effectively torpedo the wardens service as it is valued by elected members.
4.3 It is clear that this meeting on the 7th November was designed to raise a host of issues concerning the supporting of vulnerable people across the country with equal emphasis on the needs of those in the private sector. The officers sought to force onto members the view that this was a requirement on the housing service and that the needs of many occupants of sheltered accommodation was marginal. Whilst it can be acknowledged that there are many social care pressures to provide some of these services on a county wide basis to many in the private sector, that is not at the cost of the housing services responsibilities. It is clear that officers have done nothing to abide by members view in this matter.
4.4 Central to this concern is the requirement to ensure the proper structuring of the residential wardens service as requested by members, and with it the preparation of a budget bid to rectify the damaging and poor management that has been in place for the last few years."
"The aim of the [Appellant] by the manner of his actions was to seek to torpedo the day and thereby undermine Susan Lewis's position. This he sought to achieve by circulation of the letter and note direct to councillors. The Visioning Day in its scope had been approved by the Executive. Had the note been reasonable and accurate no issue could have been taken as to the manner of its circulation. However, the note, in our finding, was unwarranted and without foundation and its contents made allegations without foundation. For example, firstly suggesting aspects of the event had not been agreed or scoped with elected members. That was false. Secondly, by stating that the Critical Housing Report had not been brought to committee through the normal channels as a result of the failure of officers. This was highly misleading. The [Appellant] knew it was misleading. Thirdly, by claiming that he and Councillor Yale had not been given an insight by the Director in particular to Visioning Day until 5th November 2008. This was wrong in fact and was a misleading comment. Fourthly, suggestions that officers were endeavouring to force their views upon members. This again was not accurate. False and misleading statements have to be viewed in the context that they were made by the Executive Member who had been involved in the scoping and authorisation for the day. He was fully aware of their misleading nature and the effect his letter and note would have on Susan Lewis."
As can be seen, the tribunal expressly found that the terms of the documents were not only unwarranted, but "…. intended to undermine officers, particularly Susan Lewis…" (also paragraph 37).
Incident 5: Comments about Ms Lewis
"The [Appellant] engaged in a campaign of personal attack upon Susan Lewis which did amount to harassment."
They concluded that this conduct amounted to a failure to show respect and consideration for others, in breach of paragraph 4(b) of the 2008 Code of Conduct).
"The comments are made in the context of a course of conduct detrimental to Susan Lewis. Comments were said to an officer directly accountable and answerable to Susan Lewis. They were made early after Maureen Harkin had commenced work with the Authority. They were said with the intention of undermining Susan Lewis. The Respondent had been advised previously in writing by the Chief Executive of the appropriate route and procedure, in particular appraisal, to follow if he had issues as to Susan Lewis's performance."
Incident 6: Meeting with Ms Harkin
"… [M]y recollection is we went to the meeting at Councillor Heesom's request, it was the day I was finishing for the Christmas break, very clear in my memory, Councillor Heesom presented me with a list of empty properties and a list of people he wanted for those properties, and I'll say it as I believe it happened, I said something along the lines of, "It doesn't work like that Councillor Heesom" and he said, "I'm not asking you I'm telling you" and I said, "This is not going to happen on my watch, I don't care how it's happened in the past, allocations policy is assessed and dealt with by other members of staff", he said something along the lines of, "You won't like the man I'll become if I don't get what I want" and I said, "Are you threatening me?" and he said, "I don't need to threaten you you're an intelligent woman I know you're listening to me".
That evidence was supported by a near-contemporaneous memorandum, and the evidence of another officer from the Housing Department (David Humphries).
Incident 7: Head of Planning Appointment Process
"I would ask you to reflect on this formal email and on the actions you have taken. This is regrettable behaviour which is not conducive to trusting member-officer relations and good governance…"
"51. The role of the [Appellant] in the appointment process was not of a political nature. He was there effectively to assess the merits of the candidates and to appoint the best person for the post.
52. … There is a general reference to political background. We fail to see how there can be a political context to an objective and impartial appointment procedure."
Incident 8: Head of Housing Appointment Process
Incident 9: Meeting with Ms Littlejohn 25 February 2009
"We do so balancing his right to represent and advocate a case on behalf of his constituent with a need to have regard to the officers' roles and duties. The [Appellant] in terms of both meetings seriously failed to appreciate and have regard to the role of the officers, to the policy which had to be applied and sought to undermine their position. He wrongly interfered with their role. In terms of the 2008 meeting he made comments which were threats to Maureen Harkin. In terms of both officers he sought to intimidate them. Protection of officers in such positions require to be ensured and is the basis for finding a breach and a justifiable and proportionate imposition of a sanction, notwithstanding the [Appellant's] enhanced article 10 rights."
"The action on which the case tribunal decides will be directed toward upholding and improving the standard of conduct expected on members of various bodies to which the code of conduct applies, as part of the process of fostering public confidence in local democracy. Thus, the action will be designed both to discourage or prevent the particular respondent from any future non-compliance, but also to discourage similar action by others."
"a. The respondent having deliberately sought personal gain (for either himself/herself or some other person) at the public expense, by exploiting his/her membership of the authority that is subject to the code of conduct.
b. The respondent having deliberately sought to misuse his or her position in order to disadvantage some other person.
c. The respondent having deliberately failed to abide by the code of conduct, for example as a protest against the legislation of which the code forms part. Members of relevant authorities are expected to uphold the law.
d. Repeated breaches of the code of conduct by the respondent.
e. Misusing power with the authority or public resources for personal gain
f. Misusing the relevant authority's property.
g. Bringing the authority seriously into disrepute."
The Proper Approach
"The approach… can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
Lord Reed dissented on a number of issues, but not in respect of this; and Lord Sumption (with whom Baroness Hale, Lord Kerr and Lord Clarke agreed) put the analysis in much the same terms (see ).
"19. … [I]n deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. As the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights?
20. At the second stage, it is assumed that the means are employed to achieve the legitimate aim are necessary in that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons?"
Alleged Errors in Approach
"Any disqualification beyond May 2016 could result in reality in the [Appellant] being disqualified for an additional 5 years, which in our view would be disproportionate." (emphasis added).
"… It must, as a matter of inference, be the case that the electorate were aware of his peculiar personal position and recent history when casting their votes and re-electing him as a councillor….
… It is a very serious thing indeed for a non-elected body, such as the case tribunal, to disqualify from membership of a council a person who has been elected to that body by the electorate after the events complained of. In effect the case tribunal is overriding the wishes of the electorate. Whilst it cannot be said that this would never be an appropriate course for the case tribunal to take it, in my judgment, where the matter complained of was, by inference, put before the electorate as an issue and they have delivered their verdict through the ballot box it cannot be right to override their verdict. Accordingly, in my judgment the decision to disqualify Councillor Sanders was wrong…".
i) In my judgment, the gravamen of a non-elected case tribunal disqualifying (or, indeed, suspending) a councillor lies – not in re-election – but simply in the fact that the councillor is elected and the case tribunal is not. In all cases of disqualification or suspension, the tribunal is overriding the expressed wishes of the electorate.
ii) If a councillor is guilty of a breach of the Code of Conduct, his re-election does not and cannot act as an absolution for his misconduct. Popularism is not determinative. In any event, the fact that a councillor is re-elected by his own ward, does not mean that democracy has not been adversely affected by his conduct: his misconduct may, for example, have comprised of improperly favouring his own constituents. In determining an appropriate and proportionate sanction, the case tribunal must consider all relevant factors, including the extent to which the councillor's conduct has had an impact on the rights and interests of other individuals, and the public interest in terms of (e.g.) good administration.
iii) Therefore, whilst re-election may be a relevant factor in showing the will of the electorate, whether it is material (and, if so, the weight to be given to it as a factor) is a matter – just one of many – for the case tribunal to consider (see Chegwyn v Ethical Standards Officer of the Standards Board of England  EWHC 471 at  per Collins J). It may attract little weight if it is unclear that the electorate was aware of the full details of the misconduct; and, in any event, it may be inappropriate to attach much if any weight as it may be unclear what impact, if any, the issue had on voters (R (Mullaney) v Adjudication Panel for England  EWHC 72 (Admin) at , where Charles J found re-election in that case to be irrelevant).
"In our view the re-election of the [Appellant] is not wholly irrelevant, however each case is fact sensitive."
They proceeded to consider the circumstances of this case, including the fact that the extent to which the electorate were aware of the full ambit and nature of the complaints was unknown (paragraph 9). Therefore, the tribunal took the Appellant's re-election into account, and gave it the weight they considered appropriate.
"While each case will turn upon its own facts, unless there is some degree of consistency in the penalties imposed by different case tribunals there is bound to be a perception of unfairness, and hence a loss of confidence in the operation of the statutory system."
"The current position in Scotland, as part of the United Kingdom itself, is of particular significance in this regard."
Was the Sanction "Wrong"?
i) A number of common aggravating factors were absent. The Appellant has not been convicted or even charged with any criminal offence; and there is no suggestion that any of the relevant conduct is criminal, or corrupt, or sleaze, or motivated by or resulting in any personal financial gain by the Appellant. Mr Henderson submitted that this is of particular importance, in the light of the fact that, in England, disqualification and suspension of a councillor are not available unless he has committed a crime; and there does not appear to be any reported case in which a councillor has been disqualified (as opposed to suspended) in the absence of criminal conduct.
ii) Most of the breaches were for a failure to show respect and consideration to others, not (submitted Mr Henderson) the most serious of charges. All of the incidents took place over a period of two years – and all but two, over about eight months – in a career in local politics of over 20 years.
iii) The Appellant can of course rely upon his right to freedom of speech, and the fact that most of the utterances that form the basis of the misconduct were made as political expression. I say "most" because, although the tribunal found that all of the remaining charges resulted from circumstances of political expression (and they found that "dishonesty" was not an aggravating factor in this case: paragraph 20 of the Sanctions Decision), they also found that some (notably in connection with the Mills/Dodd exchange, and the Visioning Day letter and note: Incidents 2 and 4 above) were deliberately false or misleading; and article 10 does not protect such speech (see paragraph 38(v) above). But in any event, generally, this weighs greatly in the Appellant's favour. The minimum sanction should be imposed, consistent with the requirements of the legitimate aim of the measure.
iv) If the Appellant is suspended or disqualified, that will rob the electorate of his ward of the councillor of their choice. Here, his re-election in 2012 is of some relevance. Although the extent to which the nature and extent of the allegations against the Appellant were known to the public prior to that election is unclear, it seems that the public were aware that there were allegations and that the adjudication before the case tribunal was proceeding. If he is disqualified, in addition to preventing him from standing for any relevant authority (not just the Council), that will trigger a by-election in the Mostyn ward in which he could not stand. This court can look at the practical implications of any sanction; and, in practice, any disqualification may mean that the Appellant will not be able to be a member of the Council until the elections that are due in 2016 at the earliest. The tribunal noted the fact that the next elections would be in 2016; and appear to have used that fact to reduce the period of disqualification they might otherwise have imposed as being disproportionate (paragraph 22 of the Sanctions Decision).
v) In addition, disqualification would rob the Appellant of his living as a councillor.
vi) Mr Henderson, understandably, relied heavily upon the Appellant's record as a councillor. Prior to 2007, he had nearly 20 years good service as a councillor, without any misconduct in terms of breaches of the Code of Conduct; and similar good service since the last incident referred to above (February 2009) until his disqualification in July 2013, i.e. about 4½ years. In addition, there were testimonials from a number of councillors and officers, that marked his experience, knowledge and worth as a councillor. One described him as one of the most intelligent and experienced members of the Council (paragraph 1.42 of the Findings of Fact). The tribunal found that the Appellant worked hard for his constituents, and saw no evidence to controvert the positive view of the Appellant put forward by those witnesses who commended him (ibid). In addition to the commendation of his character, Mr Henderson submitted that, given that he did not commit any breaches of the Code for over four years after the mast incident, there can be some confidence in him not misconducting himself as a councillor in the future.
i) Although none of the conduct was criminal, all of the breaches of the Code were intentional; and some of the misconduct was undoubtedly serious. Some involved deliberately dishonest and misleading conduct towards officers, other Members and members of the public. In respect of officers, much of the conduct was intended to undermine – not their views – but the officers personally. Most of this conduct towards officers was performed when those officers were merely trying to do their job, which the Appellant was intent on frustrating. On occasions, officers were personally undermined as part of a campaign by the Appellant to undermine Council policies which the Executive had approved and were therefore not in play: the officers were only trying to do their job, and implement those policies. In respect of housing allocation, the Appellant well knew that his involvement in operations was both against the relevant regulations and Council policy, which were (again as he well knew) to prevent members being involved in such allocation when members of their constituency were involved. He encouraged officers to act contrary to Council policy. As the tribunal put it, he attempted "to drive a coach and horses through the housing allocation policy" (paragraph 10 of the Sanctions Decision). Vis a vis the officers, he misused his power as a councillor. The case tribunal concluded that, in the circumstances, the breaches were "extremely serious, and "the [Appellant's] conduct has seriously undermined [the standards in public life that the Code of Conduct was designed to protect (paragraph 21 of the Sanctions Decision). I agree.
ii) In respect of the Mills/Dodd exchange, he was found to have brought the Council into disrepute; and his misconduct damaged the relationship between councillors and officers within the authority, and undermined good government. Further, the tribunal found (paragraph 21 of the Sanctions Decision), and I accept, that, looking at the misconduct cumulatively, it could be said to have brought the office of member or the authority into disrepute.
iii) There were repeat breaches (involving a significant number of officers, from a wide range of grades; but several relatively junior), a factor specifically identified in the Sanctions Guidance as being a potential marker for disqualification. Mr Henderson emphasised that most of the incidents took place over a few months when the Appellant was an Executive Member: but, even taking out of account the three breach findings I have quashed, there were repeated incidents, during both the time he was a backbencher and when he was an Executive Member. The misconduct continued despite warnings (although no formal complaint) that he had been guilty of misconduct. In the words of the tribunal (paragraph 20 of the Sanctions Decision), there was a "failing to heed appropriate advice and warnings".
iv) Although it is important not to punish the Appellant for his conduct during the hearing, it is relevant that he showed no remorse or insight into his misconduct (including insight into the effect of his conduct on officers), rather making extreme allegations against officers including allegations that they had manufactured allegations against him and supported them with manufactured documentary evidence. Although Mr Henderson suggested that the four years that the Appellant acted as a councillor after these events without any report of misconduct strongly suggests that there is little risk of a repetition in the future, given his lack of understanding and insight, that risk must be real.
v) Although there was no intent on the Appellant's part to obtain personal financial gain, the tribunal found (and I accept) that the Appellant was attempting to obtain political gain by, improperly, seeking to favour his constituents. The Mills/Dodd exchange incident was a notable example.