The appeal in the case of Heesom v Public Services Ombudsman for Wales ([2014] EWHC 1504 (Admin)) was brought by a former Welsh Councillor against his disqualification from being a member of a Council. It raises the issue about the scope of and legitimate restrictions to a politician’s right of freedom of expression under Article 10 ECHR.
While it is common to see the reference to the enhanced Article 10 protection afforded to political discussion in the media, this case reminds us that the protection also applies to elected politicians, who while they must have ‘thicker skins’ are also entitled to enhanced Article 10 protection in relation to their political speech.
The appellant was 76 year. He had first been elected to Flintshire County Council in 1990. Following a complaint to the Public Services Ombudsman for Wales (‘the Ombudsman’) about the appellant’s conduct there was an investigation which concluded that there had been breach of the Council’s Code of Conduct. The breach was serious enough to warrant referral to the Adjudication Panel for Wales for a hearing before the Case Tribunal. Following lengthy proceedings, the Tribunal found that the appellant had committed 14 breaches of the Code of Conduct by failing to show respect and consideration for Council officers, using bullying behaviour, attempting to compromise the impartiality of officers and conducting himself in a manner likely to bring the office or Council into disrepute. The appellant challenged the Tribunal’s decision by bringing a statutory appeal.
Hickinbottom J heard the appeal and noted that one of the important issues that he had to determine was the scope of and legitimate restrictions to a politician’s right of freedom of expression under article 10 ECHR and at common law, as:
“while freedom of expression is important to everyone, Strasbourg has recognised the importance of expression in the political sphere. It has long-recognised that what is said by elected politicians is subject to “enhanced protection”, i.e. a higher level of protection under article 10”. [34]
The judge summarised the propositions that were derived from the Strasbourg cases (see [38] for full version together with case references):
i) The enhanced protection applies to all levels of politics, including local.
ii) Article 10 protects not only the substance of what is said, but also the form in which it is conveyed. Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated. Whilst, in a political context, article 10 protects the right to make incorrect but honestly made statements, it does not protect statements which the publisher knows to be false.
iii) Politicians have enhanced protection as to what they say in the political arena; but Strasbourg also recognises that, because they are public servants engaged in politics, who voluntarily enter that arena and have the right and ability to respond to commentators (any response, too, having the advantage of enhanced protection), politicians are subject to “wider limits of acceptable criticism”. They are expected and required to have thicker skins and have more tolerance to comment that ordinary citizens.
iv) Enhanced protection therefore applies, not only to politicians, but also to those who comment upon politics and politicians, notably the press.
v) The protection goes to “political expression”; but that is a broad concept in this context. It is not limited to expressions of or critiques of political views, but rather extends to all matters of public administration and public concern including comments about the adequacy or inadequacy of performance of public duties by others
vi) The cases draw a distinction between fact on the one hand, and comment on matters of public interest involving value judgment on the other. As the latter is unsusceptible of proof, comments in the political context amounting to value judgments are tolerated even if untrue, so long as they have some – any – factual basis.
vii) As article 10(2) expressly recognises, the right to freedom of speech brings with it duties and responsibilities. In most instances, where the State seeks to impose a restriction on the right under article 10(2), the determinative question is whether the restriction is “necessary in a democratic society”. This requires the restriction to respond to a “pressing social need”, for relevant and sufficient reasons; and to be proportionate to the legitimate aim pursued by the State.
viii) As with all Convention rights that are not absolute, the State has a margin of appreciation in how protects the right of freedom of expression and how it restricts that right. However, that margin must be construed narrowly in this context: “There is little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest”.
ix) Similarly, because of the importance of freedom of expression in the political arena, any interference with that right (either of politicians or in criticism of them) calls for the closest scrutiny by the court.
The Tribunal had considered, in relation to each incident, whether or not the issue raised related to ‘political expression’ and, in such a case, had afforded the appellant enhanced protection. In cases which it considered to be ‘borderline’, it had determined the issue on the basis that it was political expression.
The Judge considered each of the incidents and this section of his judgment ([86]-[181]) provides some guidance on what constitutes ‘political expression’. The definition is construed very widely (described by the judge as the “very generous bounds of political expression” [168]). While one would expect the description of a council department as ‘a shambles’ and ‘shambolic’ to be found to be political expression; some may be surprised to learn that the disruptive and entirely inappropriate behavior of the appellant during an appointments process (for example, refusing to answer a candidate’s legitimate question and refusing to allow someone to make a presentation) was also ‘political expression’ as he was “challenging the appointment’s policy” [168]. A verbal attack by the appellant on two members of another appointments panel during a meeting in which he questioned their professional capacity to make a recommendation of candidates was also considered by the judge to be ‘political expression’ [175].
However, while the judge interpreted what expression fell to be considered as ‘political’ very broadly, in all but two of the 14 breaches he found that even with enhanced protection, a finding that there had been a breach of the Code of Conduct was proportionate and justified due to the serious nature of the appellant’s conduct. The appellant did succeed on having his sanction quashed as it was found to be “excessive and manifestly so” [224] and a disqualification of 18 months imposed in its place.
The legal balancing exercise that has to be carried out when dealing with situations involving political discussions between politicians, civil servants and private individuals is therefore quite complex:
- All individuals making statements about political matters are entitled to ‘enhanced’ protection expression;
- However, elected politicians are expected to have thicker skins and are subject to “wider limits of acceptable criticism” (see, for example, Janowski v Poland (1999) 29 EHRR 705 ); and
- While civil servants are subject to “wider limits of acceptable criticism” than private individuals, the limits are not as wide as elected politicians (see [42(ii)] and Mamère v France (2009) 49 EHRR 39)
- Finally, there is also a public interest in protecting public servants from unwarranted criticism and this also needs to be taken into account (see [42(i)] and Mamère v France (2009) 49 EHRR 39).
At this rate Judges may start seeing skeleton arguments containing flow charts…
Sara Mansoori is a barrister at Matrix Chambers specialising in media and information law
since when have politicians not have the freedom of expression