Rother not to appeal against appeal in Winchelsea freedom of speech case

The Standards Committee of Rother District Council met on 11 January 2012 to consider whether to appeal against the judgement which comprehensively and utterly overturned Rother's ruling that Winchelsea councillors had breached the Councillors' Code of Conduct. As the Standards Committee could find no error in law in the appeal judgement, they decided that they had no grounds to contest it.


Rother seemed inclined to heap the blame for their decisive legal defeat on the solicitor they had employed (at a cost of some £6,500) to investigate the allegations against Winchelsea councillors by other Icklesham Parish Councillors. She was accused of failing to draw the attention of Rother to the freedom of speech issues raised by the case.


But why should the investigator take all the blame for ignoring a fundamental human right like freedom of speech, when the Rother sub-committee which ruled on the complaints against Winchelsea councillors included two solicitors (the Chairman and Rother's legal adviser)? And why did no one notice the issue of freedom of speech when it had been clearly flagged up to both the investigator and the sub-committee by Winchelsea councillors?


It also needs to be pointed out that the investigator's case against Winchelsea councillors rested primarily on a series of allegations that they had made untruthful and misleading statements about Icklesham Parish Council. In other words, her contention was that Winchelsea councillors had acted disreputably because they had lied. One can see why the investigator may have thought that freedom of speech was irrelevant.


The investigator's real failure was that she ignored evidence which destroyed the allegations that Winchelsea councillors had lied. Her failure may have been, in part, because she did not have an adequate understanding of parish council matters such as Local Action Plans (LAPs), despite the fact that they were at the heart of the complaints.


But the Rother sub-committee is even more at fault in these respects. It was given the same evidence against the allegations as the investigator but also heard that evidence confirmed, in person and in no uncertain terms, by the former Clerk to Icklesham Parish Council. Yet, when confronted with these facts at the sub-committee hearing, the Chairman interrupted the evidence and abruptly shifted the goalposts, stating that it was irrelevant whether the statement by Winchelsea councillors were true or not, what was at issue was whether their language was intemperate.


Ironically, by switching the case for the prosecution from the issue of truthfulness to the issue of expression, the Chairman himself brought the issue of freedom of speech into consideration. In the landmark Livingstone case (2006) --- ignored by the Rother sub-committee --- the judge said that, "The burden is on the [the person seeking to interfere with the right] to justify interference with freedom of speech. However offensive and undeserving of protection the appellant’s outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of Article 10(2) to render him liable to sanctions".


But even if the Rother sub-committee ignored the law, why did they not exercise commonsense? What reasonable person believes that the words "sham" and "ambush" are intemperate language and worthy of extended and costly consideration by a semi-judicial tribunal?


The Rother sub-committee, like their investigator, is also guilty of failing to understand parish LAPs. As noted, these were at the heart of the allegations against Winchelsea councillors. During the sub-committee, the Chairman expressed confusion over terms such as LAPs, LATs and Quality Parish Councils. He also expressed a lack of interest.


What indisputably breached Winchelsea councillors' right to freedom of speech was the sub-committee's opinion that councillors cannot question and lobby against council decisions, whether or not those decisions are flawed or even improper. This doctrine was expounded very firmly at the sub-committee hearing by Rother's solicitor and strongly supported by the Chairman and the District Council representative. Only the parish council representative was uneasy about this attempt to suppress freedom of speech.


Unfortunately, it would appear that Rother's Standards Committee has learnt nothing from the appeal tribunal judgement against them. They have not felt it necessary to consider how they came to be guilty of such a gross misinterpretation of the law. At least one member,  Rother Councillor Roger Bird, is in complete denial and resolutely rejects the appeal tribunal judgement. According to Cllr Bird, "The issue showed the lottery of going to judgement. It comes down to the spin of a coin." Was this an insight into how Rother reached its now discredited decision against Winchelsea councillors?

RC