R Lewis Malcolm Calver v The Adjudication Panel for Wales
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 03 May 2012 |
| Neutral Citation | [2012] EWHC 1172 (Admin) |
| Docket Number | Case No: CO/10054/2011 |
| Court | Queen's Bench Division (Administrative Court) |
[2012] EWHC 1172 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES
Cardiff Civil Justice Centre
2 Park Street, Cardiff, CF10 1ET
The Honourable Mr Justice Beatson
Case No: CO/10054/2011
Robert McCracken QC and Matthew Paul (instructed by William Graham Law) for the Claimant
The Defendant did not appear and was not represented
Gwydion Hughes (instructed by Public Service Ombudsman for Wales) for the Interested Party
Hearing date: 3 April 2012
These proceedings concern the restrictions on the conduct of members of local authorities and thus to their right to freedom of expression introduced as a result of the report of the Committee on Standards in Public Life to promote and uphold proper standards in local democracy. At the material times the claimant, Lewis Malcolm Calver, was a member of Manorbier Community Council. Manorbier is a tourist resort in South Pembrokeshire with a permanent population of about 700. The claimant was elected to its Community Council in 2004 in a contested election. In May 2008 all the candidates for the vacancies on the Community Council including the claimant were returned unopposed. In that year he was also re-elected to the Pembrokeshire County Council for a ward which includes Manorbier.
As a member of the Community Council, the claimant was required to undertake to abide by its Code of Conduct, adopted pursuant to the Community Council's statutory obligations under the Local Government Act 2000 ("the 2000 Act"). Paragraphs 4(b) and 6(1)(a) of the Code of Conduct respectively require members to "show respect and consideration for others", and not to "conduct [themselves] in a manner which could reasonably be regarded as bringing [their] office or authority into disrepute".
In this application, the claimant challenges the decision of the Adjudication Panel for Wales ("the Panel"), dated 25 May 2011 to dismiss his appeal against the decision of Pembrokeshire County Council's Standards Committee ("the Standards Committee") on 5 November 2010. The Standards Committee had decided that a number of comments or blogs posted by him on www.manorbier. com, a website he owned and wholly controlled, between June 2008 and May 2009, breached paragraphs 4(b) and 6(1)(a) of the Code of Conduct. It censured him and required him to attend a training session with the Council's Monitoring Officer.
These proceedings were lodged on 19 October 2011. Permission was granted following an oral hearing before HHJ Curran QC on 26 February 2012 at which issues of delay were considered. The defendant filed an Acknowledgement of Service but has not appeared. Mr Gwydion Hughes has, however, made submissions in favour of upholding the decision of the Panel on behalf of the Public Service Ombudsman for Wales (hereafter "PSOW"), who instigated the investigation of the claimant and referred his case to the Standards Committee.
The overarching question before the court is whether the defendant's decision that the claimant's comments put him in breach of the Code of Conduct erred in law or is otherwise flawed in public law terms. The answer to that question principally depends on whether the Panel's decision failed to give sufficient weight to the claimant's right to free expression under the common law and Article 10 of the European Convention of Human Rights1 ("the Convention"). This in turn involves considering whether the defendant erred in finding the comments did not constitute political expression attracting an enhanced level of protection under Article 10, and whether or not they attract that enhanced level of protection, whether the decision that thirteen of the comments broke the Code of Conduct and to censure the claimant was a disproportionate interference with his right under Article 10. The subsidiary issues
include the effect of the claimant's undertaking to abide by the Code of Conduct, as he was required to do in order to be a Councillor, and whether the Code of Conduct can be interpreted so as to give full effect to his right to free expression under Article 10, and, if not whether the Code itself is ultra vires.
The legal framework
The Manorbier Community Council's Code of Conduct was issued as part of the framework created by Part III of the Local Government Act 2000 ("the 2000 Act"), as a result of the third report of the Committee on Standards in Public Life (CM 3702–1) in 1997. The report recommended a new ethical framework for local government in order to promote and uphold proper standards in public life, and the 2000 Act made provision for this. The framework includes (section 53) Standards Committees, whose functions are (section 54) to promote and maintain high standards of conduct by members and co-opted members of relevant authorities. It also includes model Codes of Conduct.
Some of the provisions of the 2000 Act apply to England and Wales, but others make separate provision for Wales: see for example sections 5(4) and (5), 7, 9(2), 49(2) (4) and (5), 50(2), 51(6)(c)(ii), 54(5) and (7), and 69–74. The framework and the model Code of Conduct applicable in Wales thus differ in a number of respects from those applicable in England. The 2000 Act has also been amended by the Public Audit (Wales) Act 2004, Public Services Ombudsman (Wales) Act 2005, and the Local Government and Public Involvement in Health Act 2007 ("the 2007 Act"). References to the 2000 Act are to the Act as amended.
The framework under the 2000 Act applicable in England and its relationship to Article 10 has been considered by this court in Sanders v Kingston [2005] EWHC 1145 (Admin); Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin) and R (Mullaney) v Adjudication Panel for England [2009] EWHC 72 (Admin). The first two decisions were statutory appeals against decisions of case tribunals pursuant to section 79(15) of the 2000 Act. The third was an application for judicial review of the decision of the Adjudication Panel for England, the body which hears appeals from decisions of the Standards Committees of English relevant authorities.
Changes were introduced by the 2007 Act following the Tenth Report of the Committee on Standards in Public Life (CM 6407) in 2005 and the decision of Collins J in Livingstone v Adjudication Panel for England in 2006. In the case of Wales (but not England) one purpose was to make it clear that parts of the framework governing members of a relevant public authority apply at all times but other parts apply only where that person acts, claims to act or gives the impression that he or she is acting in the role of member or representative of the public authority in question: see sections 49( 2D), 50(4E) and 51(4C) of the 2000 Act.
Sections 49 and 51 of the 2000 Act require relevant public authorities in Wales to adopt the model Code of Conduct issued by the National Assembly for Wales regarding the conduct which is expected of members of relevant public authorities in Wales, or a Code in very similar terms. The Manorbier Community Council is a relevant authority by virtue of section 49(6)(f) of the 2000 Act. In the case of both England and Wales, as a result of section 183(4) of the 2007 Act, section 52 provides that a member of a relevant authority must, within two months of the date on which the Code is adopted, give the authority a written undertaking that he will observe the authority's Code of Conduct, and if he fails to do so will cease to be a member of the authority at the end of the period. One of the differences between the framework in Wales and that in England is seen in the parallel texts of section 52 of the 2000 Act about the duty of members and co-opted members of relevant authorities to comply with the model Code of Conduct. In the case of England, but not Wales, the duty is expressly limited to the performance by the member or co-opted member of "his functions".
The Conduct of Members (Principles) (Wales) Order 2001 SI 2001 No. 2276 (W.166) specifies the principles which are to govern the conduct of members and co-opted members of relevant authorities in Wales. There are ten principles; "selflessness", "honesty", "integrity and propriety", "duty to uphold the law", "stewardship", "objectivity in decision-making", "equality and respect", "openness", "accountability" and "leadership". Principle 7, "equality and respect", provides:
"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."
The "selflessness" principle prohibits members from using their position as members to improperly confer advantage on themselves. The "leadership" principle requires them to "respect the impartiality and integrity of the authority's statutory officers and its other employees".
The equivalent provisions for England are contained in the Relevant Authorities (General Principles) Order 2001 SI 2001 No. 1401. The formulation of the principles differs in a number of material respects. For example, the promotion of equality and respect for the impartiality and integrity of an authority's officers and employees are dealt with under the 'Respect for Others' principle. Also that principle, unlike the Welsh 'Equality and Respect' principle, contains no reference to 'consideration' for others, only to 'respect'.
Provisions for investigations by the PSOW are made in chapter III of Part III of the 2000 Act. By section 69(1)(b), the PSOW may investigate of his or her own motion in cases in which he or she "considers that...
To continue reading
Request your trial
-
Patrick Heesom v The Public Services Ombudsman for Wales The Welsh Ministers (Interveners)
...protection of the rights and interests of others". 33 Of course, as recently emphasised by Beatson J (as he then was) in R (Calver) v Adjudication Panel for Wales [2012] EWHC 1172 (Admin) at [41] and following, the common law also recognises freedom of expression, which "has been enhanced b......
-
Carina Trimingham v Associated Newspapers Ltd
...be given to legislation restricting that right, as Beatson J recalls in R (Calver) v Public Services Ombudsman for Wales [2012] EWHC 1172 (Admin) at paras [39]-[40], and as one of the cases cited in Calver demonstrates, Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin). ......
-
Akj and Others v Commissioner of Police for the Metropolis and Another
...and the relevance of the common law despite the enactment of the HRA. These are the words of Beatson J in Calver, R (On the Application of) v The Adjudication Panel for Wales (Rev 1) [2012] EWHC 1172 (Admin) at para 40. He was referring to freedom of expression, but I have gratefully adopte......
-
Hussain v Sandwell Metropolitan Borough Council
...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 public interest in maintaining confidence in local government. 130 Section 27 on " Standards" imposes ......