Saturday, 5 May 2012

The former Cllr Calver and human rights.

The Telegraph - (Politicians should have thick skins judge rules in bitchy councillor case) reported on Friday that a judicial review had set aside the decision of the Adjudication Panel for Wales, against an appeal by Mr Calver and former Pembrokeshire County Council Councillor for the Manorbier ward.

I say former County Councillor, for on Thursday he lost his seat on Pembrokeshire County Council.

But back to the judicial review, in brief this is what occurred before:

Mr Calver a Community Councillor for Manorbier had fallen out with fellow Community Councillors over various matters. Whilst investing a claim of a breach of the Code of Conduct made against Mr Hughes another Community Councillor, the Public Service Ombudsman for Wales 'became aware' of a website written by Mr Calver.

The Ombudsman decided to investigate whether comments made by Mr Calver on his website where in breach of the Code of Conduct, which 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".

The Ombudsman decided that there was case to be answered and referred the matter to Pembrokeshire County Council's Standards Committee, whom found that Mr Calver had been in breach of the code of conduct. It censured him and required him to attend a training session with the Council's Monitoring Officer.

Mr Calver appealed to the Adjudication Panel for Wales on various grounds, but the Panel upheld the decision of the Standards Committee. Mr Calver then sought a judicial review of the decision taken by the Panel. And it is the decision of the Panel that Mr Justice Beatson has set aside.

For the full judgment see Calver vs The Adjudication Panel for Wales

Mr Justice Beaston concluded that whilst the Standards Committee and the Panel were right to conclude that in a narrow sense Mr Calver; in his role of Community Councillor, had been in breach of the code of conduct, "the censure was a disproportionate interference with the claimant's rights under Article 10 of the Convention." (para 84)

In other words political expression attracts an enhanced level of protection under Article 10 of the Human Rights Convention.

Article 10

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

Which means for example in robust political debate, language that would otherwise have been considered offensive is protected by Article 10.  Lord Justice Hoffman (see para 56) stated that "surprising as it may perhaps appear to some, the right of freedom of speech does extend to abuse".

Lord Justice Hoffman also observed in R v Central Television Plc [1994] 3 All ER 641 at para 652:-

"Freedom means … the right to say things which 'right-thinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute … It cannot be too strongly emphasised that outside the established exceptions … there is no question of balancing freedom of speech against other interests. It is a trump card which always wins."

Or as stated by Mr Justice Collins in Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin) para 39 :-

"However offensive and undeserving of protection the appellant's outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of Article 10(2) to render him liable to sanctions."

Or as Voltaire said "I do not agree with what you have to say, but I'll defend to the death your right to say it."

Of course the mere fact that outside established exceptions you may have the freedom to say things which 'right-thinking people' regard as dangerous or irresponsible is not something we as a general rule should condone in a society of decent people. And you would hope that those seeking public office would in the most lead by example, not that we expect them to be beyond reproach at all times.

In Mr Calver case in my opinion (for what it's worth) the comments that he made on his blog and referred to in the above judicial review weren't that particularly offensive. But as to whether Mr Calver was wise to make them is another matter.  As others have quite rightly pointed out to me, when you have a valid point or concern to raise, the use of  offensive or poor  language to mock or  belittle someone else weakens the argument you are trying to make.

And finally as Mr Calver found out in any event the final trump card as to the election of a Councillor lays not in the courts but in the hands of the electorate.

Which is why I think we need to find ways to ensure that on all occasions the electorate are given a choice, and that we should avoid Councillors elected unopposed and without a mandate.

P.S Mr Calver remains a Community Councillor for Manorbier Community Council as he and others standing for election to the Manorbier Community Council were elected unopposed.

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