Testing the right to offend

If the 18th century became known as the Age of Reason, the 21st is gaining a solid reputation for being the Age of Offence. For nowadays it has never been easier to cause someone outrage by what would have once been dismissed as a harmless remark. Or indeed a simple statement of fact.

Harry Potter creator JK Rowling knows something of this. For she indicated that ‘hundreds of trans activists… threatened to beat, rape, assassinate and bomb me’. This was after Rowling had (among other things) tweeted support for Maya Forstater, who holds gender-critical beliefs, including that sex is immutable and not to be conflated with gender identity. But while the Employment Tribunal had found that such a notion was ‘not worthy of respect in a democratic society’, the Employment Appeal Tribunal in Forstater v CGD Europe and others nevertheless ruled that Forstater’s belief, while offensive to some, was protected by Article 9(1) of the European Convention on Human Rights (freedom of thought, conscience and religion).

But if it is a war zone out there for those accused of ‘wrongthink’ (cancelled reputations and careers), how far can local politicians go in robust public utterances? The detailed 35-page judgment of Mrs Justice Lang in R (Robinson) v Buckinghamshire Council [2021] EWHC 2014 (Admin) cast some light into this area.

This was a claim for judicial review, whereby the claimant, councillor Clive Robinson, a member of Farnham Royal Parish Council (the PC), challenged the decision by the deputy monitoring officer (DMO) of the defendant Buckinghamshire Council to uphold a complaint made by the PC that the claimant had breached paragraph 3.1 of the PC’s Code of Conduct for members. The challenge was principally based on the right to freedom of expression under Article 10 of the European Convention on Human Rights (the convention) in the light of section 6(1) of the Human Rights Act 1998. This provides that it is unlawful for a public authority to act incompatibly with a convention right (as set out in schedule 1 to the 1998 act). Article 10(1) provides (among other things) that everyone has the right to freedom of expression, including to hold opinions and receive and impart information and ideas without interference by public authority. However, per Article 10(2) the exercise of these freedoms is subject to such qualifications as are prescribed by law and necessary in a democratic society for (among other things) ‘the protection of the reputation or rights of others’.

Paragraph 3.1 of the PC’s Code of Conduct provides as follows in respect of PC members: ‘He/she shall behave in such a way that a reasonable person would regard as respectful and not act in a way that could bring the council into disrepute.’ Mrs Holder, clerk to the PC, made the complaint against the claimant which included that: ‘Mr Robinson, a councillor of Farnham Royal Parish Council, addressed (from the floor) a public meeting called by the council on 17 April 2018 and made misrepresentations about the motivation and intentions of other councillors – namely that they were minded to allow development of the green belt, he met with residents and repeated those misrepresentations, he has refused to apologise or retract those misrepresentations and has added further claims against the clerk. The council has decided that his actions are in breach of the council’s Code of Conduct by bringing the council into disrepute and failing to show respect to other councillors.’

The Farnham Royal Parish contains a large area of green belt land. There was interest among developers at the prospect of green belt development in and around Farnham Royal but this was controversial among local residents who wished to preserve the green belt. The deputy monitoring officer of Buckinghamshire Council (who was responsible by section 29(4) of the Localism Act 2011) concluded (among other things): ‘Councillor Robinson’s conduct at the council meeting on 17 April 2018 was disrespectful and was sufficient to damage the reputation of the office of the councillors and/or the council, especially as the issues could have been raised prior to the public meeting, allowing the council time to properly consider his allegations and respond fully.’

The court reviewed both Strasbourg and domestic jurisprudence, noting (among other things) that:

• The case law of the European Court of Human Rights (ECtHR) has repeatedly held that freedom of political debate is at the very core of the concept of a democratic society (see Lingens v Austria Application no. 9815/82);
• Also per Lingens: ‘The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.’
• Per Jerusalem v Austria (2003) 37 EHRR 25: ‘… while freedom of expression is important for everybody, it is especially so for an elected representative of the people’.

In the circumstances, Lang J found the DMO’s interpretation and/or application of Article 10 was flawed and she quashed the decision. For: ‘As an elected councillor, taking part in a public meeting called by the PC to discuss the green belt, the claimant was entitled to the enhanced protection afforded to the expression of political opinions on matters of public interest, and the benefits of freedom of expression in a political context outweighed the need to protect the reputation of the other councillors against public criticism, notwithstanding that the criticism was found to be a misrepresentation, untruthful, and offensive.’

Practitioners handling local government standards matters will wish to carefully study this judgment and the jurisprudence cited.

Nicholas Dobson writes on local authority, public law and governance