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IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (Local Government Standards in England) ON APPEAL FROM: Standards Committee of:

Decision Notice No: Dated:

CASE NO: LGS/2012/0582

London Borough of Barnet SSA 003/11; 004/11; 005/11; 008/11 5 March 2012

APPELLANT: RESPONDENT: DATE OF HEARING: (Determined on the papers) DATE OF DECISION:

Councillor Brian Coleman of London Borough of Barnet Council London Borough of Barnet Standards Committee 27 July 2012

8 August 2012 BEFORE Judge: Sally Lister Member: Trevor Jex Member: Narendra Makanji

Subject matter:

Appeal by a member of a local authority against a Standards Committee decision

Cases: Sanders V Kingston [2005] EWHC 1145 (Admin) Livingston v Adjudication Panel for England [2006] EWHC 2533

IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER (Local Government Standards in England)

CASE NO: LGS/2012/0582

DECISION OF THE FIRST-TIER TRIBUNAL


The appeal has been refused and the decision of the Standards Committee has been upheld

REASONS FOR DECISION


1. 2. The Tribunal has considered an appeal from the Appellant on the written evidence and written submissions of the parties. The Appellant has appealed against the London Borough of Barnet Standards Committees (the Respondent) finding that the Appellant had failed to follow paragraph 3(1) of the Code of Conduct. The Appellant has also appealed against the action, which the Respondent decided to take in the light of the failure to follow the provisions of the Code of Conduct. That action was to censure the Appellant and require him to make a written apology to the complainants within 14 days of the Respondents decision. Paragraph 3(1) of the Code provides: You must treat others with respect Preliminary issues 5. Permission to appeal was given on two of the grounds set out in the Appellants Grounds of Appeal. Those two grounds were a) that the Respondents decision was vitiated by bias on the part of one of its members, and b) the Respondents decision was contrary to Article 10 of the Humans Rights Act 1998. Having considered all the papers before it, the Tribunal was of the view that it was appropriate for the appeal to be determined on the papers. The Tribunal, as an independent and impartial tribunal was of the view that as this appeal is, in effect a fresh look at the facts and whether the facts as found amounted to a breach of the Code of Conduct, any actual or apparent bias on behalf of a member of the Respondent will be corrected by these proceedings. In any event, consideration of the general issue of whether a political opponent can sit on a sub-committee before whom an opponent was appearing is not an issue that the Tribunal considered further as it was unlikely to arise again given the provisions in the Localism Act 2011, now in force. It was therefore not consistent with rule 2(2)(a) of the Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 to consider the issue as a general point.

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Finding of Facts

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In this appeal the following facts were found after consideration of the papers before the Tribunal.

Appellants official details 9. The Appellant had been a Barnet Borough Councillor since 1998 and currently serves as Cabinet portfolio holder of the Environment. The Appellant was appointed to be one of the Councils representatives on the North London Waste Authority (NLWA) in May 2010 and was reappointed on 17 May 2011. In that capacity the Appellant received a number of complaints by email relating to a potential contractor of NLWA.

Official Capacity 10. The Appellant replied to each email complaint relating to NLWA business using his Barnet councillor email address and describing himself as a councillor in his replies. He was therefore, and it was not disputed, acting in an official capacity at the time he sent his emails to the complainants, Mr Ron Cohen and Dr Charlotte Jago.

Facts relating to this appeal 11. On the 2 February 2011 Mr Cohen emailed the Appellant setting out in some detail his concerns regarding Veolia Environmental Services a potential bidder for the NLWA waste management contract. That email was of a political nature and set out a number of reasons on political grounds why the company should be excluded from consideration as a bidder for the contract. The Appellant replied I am afraid I will not entertain this anti Israel nonsense. Mr Cohen responded But Im sure you will entertain an illegal occupation and by the way Im an Israeli. The Appellant then replied, A disloyal one at that to which Mr Cohen responded Loyalty to what? Keeping near starvation a million and a half people? Killing people in their beds? Torturing? Stealing lands? Racism? Do you support these crimes? The Appellant finished this email exchange with the words Doesnt take much to flush you out. Mr Cohen made no response following this. Dr Jago emailed the Appellant on 8 February 2011 in the same terms as Mr Cohen. The Appellant sent a reply And another cut and paste anti Israel email duly ignored. On the 11 February Dr Jago responded copying her reply to a number of other people including the Chair of the NLWA ,Councillor Clyde Loakes, the Chair of the London Assembly and the Leader of Barnet Council in which she stated, I have to say Im rather surprised by your dismissal of my email and indeed of the issue, in such a disparaging manner .Regardless of your personal opinion on Veolia and Israel, I expect a greater level of professionalism from an elected representative than your email displayed. I would welcome assurance from either you or them that this protest will, in fact, receive the consideration it deserves. The Appellant responded to this email And I will continue to ignore this campaign from you and other anti Zionists. In my book anti Zionism is just a modern form of anti Semitism. I suppose 70 years ago you would have been in the Blackshirts. Both Mr Cohen and Dr Jago complained to the Councils Monitoring Officer and an investigation was undertaken into the complaints. That investigation resulted in a hearing of the Respondent on 5 March 2012. The Respondent found the Appellant had breached

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paragraph 3(1) of the Code of conduct in respect of both Mr Cohen and Dr Jagos complaints and decided to formally censure the Appellant and require him to submit a written apology to both complainants within 14 days of the sub-committees hearing. Finding as to whether the Appellant had failed to follow the Code. 18. This Tribunal, and many other such Tribunals before it understood the phrase failure to treat others with respect to mean unfair, unreasonable or demeaning behaviour, directed by one person against another. It has long been recognised that the circumstances in which the behaviour occurred is a relevant factor. This may include such matters as the relationship of the people involved and the behaviour of anyone who prompted the alleged disrespect. The Tribunal has also had regard in determining whether the Appellant has breached paragraph 3(1) of the Code of Conduct to Article 10 of the European Convention on Human Rights. Having had regard to the case law and the decisions of other Tribunals where ECHR issues have arisen, this Tribunal also considered the following legal principles in this matter.

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Article 10 provides: (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 or penalties as are prescribed by law and are necessary in a democratic society, in the interests ofthe protection of the reputation or rights of others,

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Section 1 of the Human Rights Act 1998 identifies the rights under the European Convention of Human Rights which have effect for the purposes of that Act. Section 3(1) of the 1998 Act provides that so far as it is possible to do so..subordinate legislation must be read and given effect in a way which is compatible with the convention rights. Section 6 of the 1998 Act provides as follows: (1) It is unlawful for a public authority to act in a way which is incompatible with a convention right. (2) Disapplies the section in certain very limited circumstances concerning primary legislation. This does not apply to the present case as the matters raised by the appellant concern subordinate legislation.

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Sub-section (3) provides: In this section public authority includes (a) a court or tribunal Section 7 provides: (1) A person who claims that a public authority has acted in a way which is made unlawful by section 6(1) may

(b) rely on the convention right or rights concerned in any legal proceedings 2. As in other Tribunal cases, this Tribunal has had regard to the case of Sanders v Steven Kingston [2005] EWHC 1145 (Admin) where Wilkie J had to consider the relationship between Article 10 and a paragraph of the then Code of Conduct which equates to paragraphs 3(1) of the Councils Code. In paragraph 69 of his judgment, Wilkie J reviewed a number of authorities. He noted [at para.69] that in Lingens v Austria the following was said:

In this connection the court has to recall that freedom of expressionconstitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individuals self fulfilment. Subject to paragraph 2, 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 broad mindedness without which there is no democratic societyMore generally freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the conventionIn such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.
3. From R v Central Independent Television plc (1994) Fam 192 following passage from the speech of Lord Justice Hoffman: Wilkie J set out the

Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which right thinking people regard as dangerous or irresponsible. This freedom is subject only to clearly define 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.
4. From the case of Reynolds v Times Newspapers Ltd (2001) 2 AC 127 he set out the following passage from the speech of Lord Nichols of Birkenhead:

My starting point is freedom of expression. The high importance of freedom to impart and receive information and ideas has been stated so often and so eloquently that this point calls for no elaboration in this case. At a pragmatic level, freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy cherished in this country. This freedom enables those who elect representatives to parliament to make an informed choice, regarding individuals as well as policies, and those elected to make informed decisions.To be justified, any curtailment of freedom of expression must be convincing established by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved.

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Wilkie J then proceeded to consider whether, on the facts of the Sanders case, a finding of breach and/or imposition of a sanction would violate Article 10. He held that, in principle, Article 10 was engaged, that the finding of breach of itself and the imposition of a sanction was prima facie a breach of Article 10 but that the restriction of the right to freedom of expression was, on the facts, one which was justified by reason of the requirements of Article 10(2). He said this at paragraphs 84 and 85 of his judgment:

.. the adoption by Parliament of the statement of principles and establishment of a code of conduct arose from the publication by Lord Nolan of the third report of the Committee of Standards in Public Life in July 1997 (CM 3701-1). This report called for a new start based on an ethical framework the effect of which would be a radical change in the ethical framework within which local government operated. It was stated that it was important that local authorities themselves should adopt their own codes of conduct but had to be with a degree of consistency across local authorities and an assurance that certain minimum standards would be attained by any individual code. The government in response introduced into Part III of the Local Government Bill clauses relating to the conduct of local government members and employees. The purpose of the legislation was to encourage and impose certain minimum standards of behaviour in respect of local government. No challenge is made by Councillor Sanders to the scheme. It is, therefore, implicit that he accepts that the system whereby members are obliged to undertake that they will comply with the code of conduct and will be subject to the jurisdiction of the Case Tribunal in the event that they are not satisfies, in principle, the three conditions for a lawful interference with free speech in a democratic society. I have concluded that the words and writing of the appellant amounted to no more than expressions of personal anger and personal abuse and did not constitute political expression which attracts the higher level of protection. In those circumstances, in my judgment the finding by the Case Tribunal that the appellant had breached the code of conduct and its notification of that finding to his local authority constitute an interference with freedom of expression but one which was lawful pursuant to Article 10(2). I recognise that, were this machinery to be used against a member of a local authority who did give expression to political opinions of an offensive nature or expressed political opinions in an offensive way, then there might be circumstances in which the Case Tribunal could not find a breach of the code of conduct without involving itself in an unlawful infringement of the rights protected by Article 10. However, as a matter of fact, this is not such a case.
6. The Tribunal also had regard to the judgement of Collins J in Livingstone v The Adjudication Panel for England [2006]EWHC 2533 (Admin) [at para.39]: The burden is on [Local Government Standards in England ] to justify interference

with freedom of speech. However offensive and undeserving of protection the appellants 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.

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The Tribunal accepted that the right to freedom of expression was a crucially important right in a democratic society and it is clear that it may only be interfered with where there were convincing and compelling reasons within Article 10(2) justifying that interference and whether a finding of a breach of the Code on the facts in this case would represent no greater an impairment to the Appellants right to freedom of expression than was necessary to accomplish the legislative objective of the Code. It is important that the restraints should not extend beyond what is necessary to maintain proper standards in public life and that political expression is afforded a higher level of protection. The concept of treating others with respect is one that allows the essential balance required by Article 10(2) to be performed. The Appellant argued in his Grounds of Appeal that his statements in his emails to the complainants were political and therefore the higher standard of protection applied. The Tribunal did not accept this. The Tribunal considered carefully the nature of the words used and the exchanges as a whole in order to determine whether they constituted expressions relating to political or quasi political comment which benefit from a high level of protection, or whether they were no more than expressions of abuse, annoyance and ill humour. If it were the latter case, the high degree of protection required by the authorities was not engaged. The Tribunal noted that Mr Cohens emails to the Appellant raised political issues about Israel which the Appellant obviously did not like and about which he strongly objected. The emails from Mr Cohen were not impolite or discourteous and raised issues which Mr Cohen was perfectly entitled to raise. Rather than engage in the actual political issue, the Appellant chose to be rude, curt and dismissive in his reply to the complainant I am afraid I will not entertain this anti Israel nonsense and It doesnt take much to flush you out. After careful consideration of the words used the Tribunal was of the view that the Appellant was not making a political point or engaging in a political discussion when he replied to Mr Cohens emails in these terms but had crossed the line into personal, offensive and insulting abuse which lacked any reflective content. Therefore the high degree of protection required by the authorities was not engaged. In stating in his email to Dr Jago, that In my book anti Zionism is just a modern form of anti Semitism, I suppose 70 years ago you would have been in the Blackshirts, the Tribunal was again of the view that, having regard to the entire statement made, the Appellant was not engaging in a political debate either, but ill-tempered, irascible personal abuse and therefore this also did not attract the high degree of protection required by the authorities. These comments by the Appellant seemed completely unnecessary, unreasonable, and demeaning. In Mr Cohens complaint he described how these comments made him feel as if he was vermin and Dr Jago stated that suggesting someone would have been a Blackshirt was abusive and insulting and was, particularly offensive and upsetting because 70 years ago my grandparents friends were being persecuted and murdered by the Nazis. Both had the right to make the comments they did without being, demeaned abused and insulted for doing so by an elected representative, acting in their official capacity on behalf of the council. The Tribunal therefore found that the Appellant had breached paragraph 3(1) of the Code of Conduct and that any interference with the Appellants rights under Article 10 was

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necessary in the interests of the protection of the rights of others and represents no greater an impairment to the Appellants right to freedom of expression than is necessary to accomplish the legislative objective of the Code and is proportionate in accordance with Article 10(2). 16. In the Appellants Grounds of Appeal it is also argued that as the email exchanges were between the Appellant and the complainants and with no third party audience, the complainants reputation was unaffected and further there was no right .known to the law not to be (as the complainants saw it) privately insulted. The Appellant drew the Tribunals attention to the case of Sanders v Kingston. The Tribunal found that the judgement in the case of Sanders v Kingston did not support the Appellants argument as Mr Justice Wilkie did not consider the specific issue of reputation but only the issue of protection of the ..rights of others , in particular the rights of those to whom Councillor Sanders had directed his expressions of personal anger and personal abuse (see paragraph 83 of the judgement ). The judgement in that case found that such expression did not constitute political expression and the decision of the Case Tribunal that the councillor has breached the Code of Conduct was lawful in order to protect the rights of others pursuant to Article 10(2). In any event, the Tribunal did not accept the Appellants arguments put forward in paragraph 4.4 of the Grounds of Appeal that the email exchanges were between the Appellant and the complainants only. The Appellant was responding to the complainants in his official capacity. He emailed as a councillor and as a member of the NLWA, using the email system of a Barnet Councillor. The email exchanges were not private correspondence between two individuals but official correspondence of a public body to members of the public. The exchange forms part of a public record of the authority, is accessed by others and is lawfully available to public scrutiny under information legislation, subject, where appropriate to certain exemptions. This email exchange amounted to public authority business, and was generated in the course of conducting the business of the public authority. 1 The exchange can not therefore be said to be private or just between two parties and the Tribunal did not accept the Appellants argument set out in his Grounds of Appeal that the complainants had no rights under the ECHR because they had only been privately insulted.

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Sanction 19. The Tribunal had regard to the nature of the breach and guidance issued by Standards for England on sanction. The Tribunal noted that there was nothing in the papers which provided any mitigation for the Appellants actions and indeed was surprised that such an experienced councillor should behave in this manner. The Tribunal is of the view that the decision of the Respondent with their knowledge and expertise of the local context was fair and proportionate in all the circumstances. The Tribunal has upheld the findings and decision on sanction of the Respondent. The Tribunal directs that the sanction originally imposed will take effect as of 27 July 2012. The written reasons for the Tribunals decision will be published on the Tribunals website at www.adjudicationpanel.tribunals.gov.uk.

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See Information Commissioners Office Guidance Freedom of Information Act Awareness Guidance No 12 and Official Information held in private email accounts and the decision of the First-tier Tribunal (Information Rights) case reference FS50422276.

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Any request for permission to appeal needs usually to be made to the First-tier Tribunal within 28 days of receipt of the Tribunals reasoned decision. Such applications need to be in writing.

Sally Lister Judge 8 August 2012