Decision - Hearing of an allegation that a Councillor has failed to comply with the Code of Conduct for Members - Case BHC-015722

2.1      RESOLVED – That Councillor Duncan:

(a)  failed to comply with paragraph 3(1) of the council’s Code of Conduct for Members (‘You must treat others with respect’); and

(b)  failed to comply with paragraph 5 of the council’s Code of Conduct for Members (‘You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute’).

2.2       The Panel considered the allegation that Cllr Duncan failed to comply with the council’s Code of Conduct for Members, specifically paragraphs 3.1 ‘you must treat others with respect’ and paragraph 5 ‘you must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute’.

The Panel noted that the facts of case were not in question, and that both the tweet and the identity of the tweeter were in the public domain. The Panel was satisfied that it was reasonable for members of the public to assume that by issuing his tweet, Councillor Duncan was not acting solely as a member of the public but as a councillor, and therefore that the Code applied.

The Panel noted the level of complaint, especially among the Islamic community, which the tweet of 16 June 2014 had generated.

The Panel noted Councillor Duncan’s comments that in his tweet he was not referring to the Qur’an. The Panel felt, notwithstanding Councillor Duncan’s assertion that he was not referring to the Qur’an but a book on Islamic art and architecture, that any reasonable person would assume the tweet was in fact referring to the Qur’an.

The Panel recognised that had the tweet been made at any time, it would have been capable of being disrespectful and of bringing the council into disrepute. However, the timing of the tweet was an additional factor as it happened at a time when members of the BME and Muslim communities, senior council officers, the Police, and Home Office were discussing ways of reducing the likelihood of young Muslim men from the community going to Syria to fight.

The Panel carefully considered Councillor Duncan’s statement made during his submissions, in particular his contention that his right under Article 10 of the Human Rights Act took precedence over the council’s Code of Conduct; and that for the Panel to find a breach of the Code would breach his right to freedom of expression. The Panel noted that Councillor Duncan’s written response to the complaint, as conveyed during his submissions at the Hearing itself, did not in any way refer to his right to freedom of expression. This argument was only raised following publication of the papers for the hearing.

The Panel had access to legal advice during its deliberations. The council’s lawyer, on behalf of the Monitoring Officer, advised that whilst under the Human Rights Act it is unlawful for a public authority to act in a way which is incompatible with a Convention right, Article 10 – the right to freedom of expression – is a ‘qualified right’; further, the council’s Code of Conduct is framed within the ambit of Article 10(2) which in certain circumstances makes it lawful to interfere with a person’s Article 10(1) rights.

The Panel was advised that the extent of any such interference must be proportionate and engage one or more of the justifications set out in Article 10(2). The Panel was further advised that under case law, political expression or the expression of a political view attract a higher degree of protection under Article 10, whereas expression in personal or abusive terms does not attract the same higher level of protection. The limits of what is acceptable is wider where the subjects of the expression are politicians acting in their public capacity, since politicians lay themselves open to close scrutiny of their words and deeds and are expected to possess a thicker skin and greater tolerance than ordinary members of the public. In the view of the Panel, Councillor Duncan’s tweet was directed to a section of the community and not at a fellow politician.

Furthermore, one of the permitted justifications for restriction of Article 10 rights is the protection of the reputation or rights of others. The Panel felt that the reputation of both the local Muslim community and the council had been impugned by the tweet. In light of this, the Panel considered that Councillor Duncan’s tweet did not enjoy the unqualified protection of Article 10(1).

2.3       Sanctions to be applied

Having heard Councillor Duncan’s representation as to sanctions he considered appropriate in light of the Panel’s findings, the Panel considered the range of sanctions available to it and determined the following in respect of both breaches of the Code of Conduct.

Firstly, that Councillor Duncan be subject to formal censure by this Standards Panel for failing to meet the standards of behaviour required of all councillors under the Code of Conduct for Members, specifically for failing to treat others with respect and bringing the council into disrepute; and that this censure be made publicly available and reported to the meeting of full Council on 23 October 2014.

Secondly, that, in light of this censure and the Panel’s determination that it is inappropriate for someone who has repeatedly brought the

council into disrepute to represent the council in the role of Chair or Deputy Chair of any committee, a recommendation be made to the meeting of full Council on 23 October 2014 that he be removed for the remainder of this municipal year from the role of Deputy Chair of both the Licensing Committee (Licensing Act 2003 Functions) and the Licensing Committee (Non Licensing Act 2003 Functions).

2.4       Right of Appeal

There is a right of appeal for the subject Member and any of the complainants against the decision of the Standards Panel. 

If any of these persons wishes to exercise this right, they should write to the council’s Monitoring Officer*, stating they wish to appeal the Standards Panel decision, with reasons for doing so.  The appeal request will only be granted if one or more of the following criteria are met:

(1)  the hearing was procedurally flawed; a relevant consideration was not taken into account; or an irrelevant consideration was taken into account;

(2)  new evidence or material has arisen with a direct and significant bearing on either of the allegations;

(3)  the Panel’s decision was irrational, meaning it was so unreasonable that no sensible Standards Panel, having applied its mind to the complaints, could have arrived at that decision.

A request for an appeal must be received within 10 working days of 6 October 2014.

* Address: Brighton & Hove City Council, King’s House, Grand Avenue, Hove, BN3 2LS