Winchelsea councillors win appeal in victory for freedom of speech

We've been rather quiet in 2011. This blog explains what has been occupying us.

In February 2010, Cllr Bronsdon of Rye Harbour, supported by the other councillors from Icklesham, Rye Harbour and Winchelsea Beach wards --- Cllrs Bates, Drew, Horsman, Lyward, Merricks, Moore, Stanford, Sutton and Thompson --- lodged a complaint against the three ward councillors from Winchelsea -- Cllrs Chishick, Comotto and Terry --- for criticisng the adequacy of the Local Action Plan (LAP) questionnaire provided by Rother District Council and adopted by Icklesham Parish Council, protesting about the way in which Icklesham Parish Council had forced the questionnaire on Winchelsea, and calling on residents to boycott the questionnaire. He claimed that their actions had brought Icklesham Parish Council into disrepute, contrary to the Councillors' Code of Conduct.

A separate and very lengthy complaint was also made by Cllr Stansford of Rye Habour ward against Cllr Comotto alleging bullying of other councillors and the parish clerk, and failure to declare an interest at a meeting in August 2009.

All Winchelsea councillors were accused of making misleading and untruthful statements.

It is worth noting here that the August 2009 parish council meeting was held to discuss (in secret) a proposal to sue the Wincheslea website www.winchelsea.net for defaming Icklesham Parish Council by referring to "a history of incompetent chairmen" and "a dysfunctional council". The curious circumstances surrounding this meeting will be reviewed in another blog. Suffice it to say here that councils do not have the right to sue for defamation, as judges have felt that the threat of such action (even where it was unlikely to succeed) would intimidate critics and have a "chilling effect on democracy"! So, the whole discussion was pointless. However, under the Code of Conduct, Cllr Comotto should have declared a prejudicial interest, rather than just a personal interest, and left the meeting, as he is involved with the Winchelsea website. Cllr Comotto apologised for this error but argued that the breach was immaterial, given the pointlessness of the debate and the fact that he would have been aware of the resolution, whether or not he had attended, which meant he could have derived no material advantage.

Rother District Council commissioned a firm of solicitors to investigate the complaints. During this investigation, further complaints were made against Cllr Comotto. It is not possible to reveal these complaints as Standards Committees operate largely in secret but it is possible to say that the additional allegations made by Cllr Merricks would, if they had been made publicly, have been libellous. In the event, all the complaints bar two were dismissed by the investigator but she did conclude that the three Winchelsea councillors had brought Icklesham Parish Council into disrepute by making untruthful statements about the parish council's handling of the LAP. She also judged the language used by the councillors to have been intemperate.

At the hearing held by the Rother Standards Committee, the evidence provided to the investigator, by Cllr Stanford, purporting to show that Icklesham Parish Council had been preparing a LAP since 2005 --- and that Winchelsea councillors had therefore made untruthful and misleading statements about the suspicious suddenness of the council's proposals and demands --- was shown to be utterly incorrect. At this point, the Standards Committee decided that the issue was not the untruthful of statements but the intemperate language. The words that appeared to cause concern were "ambush" and "sham". On this basis, the Standards Committee concluded that the Winchelsea councillors had breached the Code of Conduct. The sanction imposed was a censure.

Winchelsea councillors appealed against the Standard Committee's decision on the grounds that the judge infringed their right to freedom of speech and obstructed their duty to defend their electorate against poor council decisions, and that they had not made untruthful or misleading statements and had not used intemperate language. On 12 December, an appeals tribunal agreed with the Winchelsea councillors, citing a long list of legal precedents, and quashed the judgment of the Rother Standards Committee. The judgement is worth reading:

"The Tribunal has determined that the three Appellants did not fail to follow the provisions of the Code because:
1 They were legitimately exercising their right to free speech.
2 The language employed by them had not been hostile, intemperate, ill-judged or misleading.
3 They were entitled to write to local residents informing them of matters they considered of particular relevance. The councillors’ actions were within the legitimate boundary of a local councillor defending local interests.
4 Residents had not been instructed to do anything unlawful and it was open to recipients to accept or reject the guidance issued by the councillors as to how to show their opposition to adoption of a parish-wide questionnaire.
5 The Code does not preclude a councillor from opposing council policy provided he uses legitimate and reasonable means. Local councillors are often involved in, or indeed lead, local opposition to locally sensitive issues. For instance, a planning matter which has a far greater impact on a defined locality than the rest of the district. This will, of necessity, bring councillors into opposition with local or party policy."

The tribunal could not have been clearer. The judgement is also forthright about the right of councillors to freedom of speech and the nature of the democratic political acitivity. It also made crystal clear that Winchelsea councillors had not been untruthful or misleading.

In addition, the tribunal dismissed, as inappropriate, the censure imposed on Cllr Comotto for failing to declare a prejudicial conflict of interest.

The question that need to be asked, in view of this judgement, is why did Rother, despite employing two solicitors and spending well over £10,000 of tax-payers' money, not see this one coming and allowed the complaint to proceed? As the tribunal made clear, there is a well-developed case law on the underlying issues.

And Rother's blunder is a serious one because, if they had won, it is difficult to see how genuine political activity could have continued in local government or how it could ever have been held to account. How did this happen? Perhaps, Rother has been a virtual one-party state for so long that it has just lost the hang of democracy. Some of the statements made by the legal adviser to the Standards Committee revealed a very restrictive view of elective democracy and the role of councillors. In effect, Rother's lawyer implied a collective responsibility on councillors that meant they could not seek to reverse decisions of their council, even where they considered these decisions to be utterly wrong, and could not campaign against unacceptable policies even in an election.

Rother also needs to reflect on its own undeclared conflict of interest. The first complaint centred on crticism of the questionnaire which Rother produced! This makes them something of an interested party.

And what about Icklesham Parish Council? Who can dispute its dysfunctional behaviour now? There have now been three complaints to the Standards Committee against Cllr Comotto. In response to the first (by 11 other councillors), Cllr Comotto was merely asked to send fewer e-mails to the then parish clerk. In response to the second complaint (by Cllr Merricks), it was explained that Cllr Comotto had been conducting normal political activity. And now, despite throwing a huge quantity of mud at all three Winchelsea councillors, a third vexatious complaint has also failed. The net result has been to waste everybody's time and provide employment to lawyers. No wonder, Eric Pickles is junking Standards Committees!"
RC