R Benjamin Dennehy v London Borough of Ealing

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeHHJ McKenna
Judgment Date20 Dec 2013
Neutral Citation[2013] EWHC 4102 (Admin)
Docket NumberCase No: CO/9115/2013

[2013] EWHC 4102 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

HHJ McKenna

Case No: CO/9115/2013

Between:
R (on the application of) Benjamin Dennehy
Claimant
and
London Borough of Ealing
Defendant

Simon D Butler (instructed by Gunner Cooke partnership) for the Claimant

Tom Cross (instructed by Director of Legal and Democratic Services, Ealing Council) for the Defendant

HHJ McKenna

Introduction

1

This is the hearing of an application made on behalf of Mr Benjamin Dennehy ("the Claimant") for permission to apply for judicial review of a decision ("the Decision") of the Standards Committee ("the Committee") of the Council of the London Borough of Ealing ("the Council") to find that comments made by the Claimant, an elected councillor, had breached the Council's 2007 Code of Conduct for Councillors ("the Code").

2

The Committee found that in posting comments on a blog on 12 March 2012 the Claimant had not treated others with respect and had brought the Council and the office of Councillor into disrepute contrary to the Code.

3

In the light of its findings the Committee resolved that the Claimant should be requested to issue an appropriate apology, and that a notice summarising the Committee's decision should be published in the Ealing Gazette and on the Council's website.

4

In his original grounds, the Claimant, who at that stage was unrepresented, maintained a large number of grounds albeit that some were interrelated. The matter was considered in some detail by Kenneth Parker J, on paper on 21 August 2013, and he ordered that the application be adjourned to be listed in court on notice to the Defendant. In doing so he made the following observations:

1. "The Council found that the Claimant, in breach of the Code of Conduct for Councillors had not treated others with respect and so brought the Council and the Claimant himself, as a councillor, into disrepute. The Council reached that finding because "the tone and much of the content [of the internet blog] had been inappropriate and unnecessarily provocative" (minutes of meeting of 22 May 2013, Bundle p143).

2. The reason for the decision did not specify precisely in what way the tone had been inappropriate and unnecessarily provocative, or identify exactly what part of the content of the blog was referred to. (Given that the right to free speech of a democratically elected member of a public authority was prima facie engaged, it might be better practice if more specific reasons are given). Nonetheless the comprehensive, careful and balanced Final Report of the Investigating Officer of February 2013 was before the Council and no doubt informed its decision.

3. That Report at paragraph 4.7 identified a particular passage from the blog. In my view, it is a reasonable interpretation of that passage that the Clamant was telling his readers (including residents of Southall) that (a) nearly the whole or at least a substantial part of the Indian community in Southall is "harbouring" and "exploiting" other members of that community (in particular illegal immigrants) in "squalid third world living conditions"; and (b) such whole or substantial part of the Indian community did not pay income tax on income derived from letting deplorable property to illegal immigrants and might also justifiably be suspected of engaging in other illegal "scams". There appears to me to be no justification for such a sweeping statement, which would be likely to cause legitimate indignation and serious offence to those members of the group referred to who have no involvement with illegal immigration or any other form of criminality. Furthermore, I find it hard to accept that any reasonable Councillor could have believed that such a sweeping statement was justified, and I therefore have difficulty in accepting that the Claimant thought that such a statement was justified. It may be that the Claimant did not intend to make such a sweeping and offensive statement. However, in my view, the words used were reasonably capable of bearing the above meaning, and the correct course would then have been frankly to recognise that fact, and to apologise unqualifiedly for the offence that the words, on their reasonable interpretation, would have caused.

4. On that basis I was minded to conclude that the Council's decision, although engaging Article 10 of the ECHR, was without question a proportionate interference, in the light of the other interests identified in that Article. However, I am conscious that this is a sensitive area, raising an issue about the right of a democratically elected member of a public authority freely and frankly to express views about matters which he believes are of topical social and political concern in his local area. I do not believe, therefore, that I should shut out the Claimant by a paper refusal of permission, and so give him the opportunity, if he decides that it is appropriate, to advance orally his application for permission.

5. For the avoidance of doubt I see no merit in the other grounds of challenge, for the reasons set out in the Summary Grounds of Defence."

5

Since the order of Kenneth Parker J dated 21 August 2013, the Claimant has sought legal representation and at the oral permission hearing before me only two grounds of challenge were advanced as follows namely that the Committee had failed to give adequate reasons for the decision and that the Decision of the Committee was unreasonable and irrational on the grounds that the comments posted by the Claimant on his blog did not justify a finding that the Claimant's conduct was in breach of paragraphs 3 and 5 of the Code. The Committee's Decision infringed the Claimant's fundamental right to free speech at Common Law and under Article 10 of the European Convention on Human Rights ("the Convention") and the reasons given by the Committee in relation to the comments posted on the blog were an unjustified restriction on the Claimant's right to free speech.

Legal framework

The Localism Act 2011 ("the 2011 Act")

6

By section 27(1) of the 2011 Act a "relevant authority" (which includes a London Borough Council) is placed under a statutory duty to "promote and maintain high standards of conduct by members and co-opted members of the authority".

7

By section 27(2) of the 2011 Act a relevant authority "must in particular, adopt a code dealing with the conduct that is expected of members and co-opted members of the authority when they are acting in that capacity".

8

Under section 28(1) of the 2011 Act a relevant authority must secure that a code adopted by it is, when viewed as a whole, consistent with prescribed principles of standards in public life — the so called "Nolan principles".

9

The intention of the legislation is to ensure that the conduct of public life at the local government level does not fall below a minimum level which engenders public confidence in democracy as was recognised by Beatson J, as he then was, in R (Calver) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) when he held that there was a clear public interest in maintaining confidence in local government whilst at the same time bearing in mind the importance of freedom of political expression or speech in the political sphere.

10

Under 28(6) of the 2011 Act a London Borough Council must have in place (a) arrangements under which allegations can be investigated and (b) arrangements under which decisions on allegations can be made. By section 27(7), arrangements put in place under subsection (6)(b) must include provision by the appointment of the authority of at least one "independent person" whose views are to be sought, and taken into account, by the authority before it makes its decision on an allegation that it has decided to investigate.

11

Section 28(11) of the 2011 Act provides that if a relevant authority finds that a member or a co-opted member of the authority has failed to comply with its code of conduct it may have regard to the failure in deciding (a) whether to take action in relation to the member or co-opted member and (b) what action to take.

12

Pursuant to the provisions of the 2011 Act the Council drafted the Code together with a Standards Procedure which deals with the investigation and hearing of complaints ("the Standards Procedure").

13

The following paragraphs of the Code are material:

"2(1) Subject to subparagraphs (2) to (5) you must comply with this Code whenever you-

(a) conduct the business of the council (which, in this Code, includes the business of the office to which you are elected or appointed); or

(b) act, claim to act or give the impression you are acting as a representative of the council,

and references to your official capacity are construed accordingly.

(2) subject to subparagraphs (3) and (4), this Code does not have effect in relation to your conduct other than where it is in your official capacity.

3 (1) you must treat others with respect

5 you must not conduct yourself in a manner which could reasonably be regarded as bringing your office or your council into disrepute"

14

The Standards Procedure provides for written complaints against members to be investigated where required and for a report to be compiled. Paragraph 4.2 states that at the end of the investigation the investigator will send a draft of the report to the parties for comment before a final version is produced. Where the investigator concludes that a breach of the Code has taken place, the complaint is referred to the Standards Committee for determination at a formal hearing. The final...

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1 cases
  • Hussain v Sandwell Metropolitan Borough Council
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 29 June 2017
    ...are express reflections of the Nolan Principles, as has been recognised in case law: See e.g. Dennehy v London Borough of Ealing [2013] EWHC 4102 (Admin) paragraphs [6] – [9] and in R (Calver) v The Adjudication Panel for Wales [2012] EWHC 1172 (Admin) Beatson J held that there was a clear ......

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