The Code of Conduct - Article 10 ECHR and some thoughts as to its application

1- Statements on political issues or other matters of general public interest attract “enhanced protection” under Article 10(1) ECHR meaning that in practice there are relatively few limits which can be imposed on “political speech”. As a result, even statements which offend, shock or disturb are protected by the law:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.” Redmond-Bate v Director of Public Prosecutions [2000] HRLR 249

2- The reason why the law provides generous protection even to statements which others find offensive is because freedom of expression:

“… constitutes one of the essential foundations of … a [democratic] society, one of the basic conditions for its progress and for the development of every man. … 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 the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.” Handyside v United Kingdom (1979-80) 1 EHRR 737, [49]

If the Code of Conduct process too readily interferes with comments made by elected representatives, this would exert a “chilling effect” on freedom of speech and would therefore undermine the democratic process (Lingens v Austria (1986) 8 EHRR 407, [42]).

[Matt Lewin, Barrister and Author Cornerstone on Councillor Conduct and Standards in Public Life]

3- This means that the obligations in the Code cannot be read in isolation; they must be read in a way that gives effect to the Subject-Members' right of freedom of expression. It is not the MO or investigator's role to decide whether what the Subject-Members said or did was fair or justified; that is a political judgment for the electorate.

4- The law and courts have protected the rights of elected representatives to express views and make decisions without intervention unless the need to intervene is so significant as to outweigh the need to protect democracy and its ability to function.

5- The Code does not prevent councillors from holding political views. Others may agree or disagree with those views, and the decisions that flow. But that is representational democracy. Also certain matters are not (normally) covered by the Code of Conduct such as:

• Complaints about decisions councillors have made (unless they have made the decision in an unfair way or not in accordance with Council policy / rules);
• the performance of councillors, such as how well they do / do not engage with their constituents, their views, opinions or position on matters;
• Complaints about Council services;
• Complaints about decisions made by Councils; and
• general Complaints about the Council as a whole.

6- It is worth recalling that 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 of…the protection of the reputation or rights of others…”

7- Even if enhanced rights do exist, Article 10(2) may still justify the findings of breach as a lawful interference with those rights. One would need to conclude that such an interference would be justified and meet a pressing need eg to protect officers from disrespectful behaviour in the way in which the member(s) behaved in raising their concerns.

8- This is because if the matter was the way in which the Subject-Member behaved in the way she raised her concerns that was the breach of the Code, not the raising of concerns, the concerns could have raised respectfully.

9- The interference must be proportionate to the aim of (eg) protecting officers.

10 -If such an interference is justified, proportionate and necessary in a democratic society, the finding must also be necessary and proportionate to the aim pursued, namely to address poor behaviour. Often the issue isn’t that member criticized but how / where etc they did it.

11- It is important that councillors raise issues about poor performance in the correct way and at the appropriate forum in accordance with the local authority’s processes and procedures. Does the officer member protocol make it 100% clear

12- Appropriate criticism of officers can be misconstrued as failing to show respect. It is not. Also, senior officers are expected to have thicker skin than junior officers.

13 - But members must not seek to inappropriately influence operational decision-making & be disrespectful officers. Members have overall responsibility to their local authority (eg as corporate parents) and must allow the officers to perform their statutory functions.

For more information, please contact Mark Heath in our Public Sector team on 0117 314 5637, or complete the form below.