Agenda item - Hearing of an allegation that a Councillor has failed to comply with the Code of Conduct for Members - Case BHC-015726

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Agenda item

Hearing of an allegation that a Councillor has failed to comply with the Code of Conduct for Members - Case BHC-015726

Decision:

3.1   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’).

 

3.2       The Panel considered the allegation that Councillor Duncan failed to comply with the 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 the facts of the allegation 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 unprecedented level of complaint the tweet of 28 June 2014 had generated, with widespread significant offence and indignation, and it appeared to be this that caused Councillor Duncan to switch off his twitter account.

 

Councillor Duncan offered no further submissions except to reiterate his contention that his right to freedom of expression was protected by Article 10. In relation to this point, the legal advice offered to the Panel was substantially the same as that given for item BHC-015722 in that Councillor Duncan’s tweet was both abusive and directed not specifically at politicians or public figures but to ordinary members of the community, namely the armed forces; and that for this reason, Councillor Duncan was unable to rely on his Article 10(1) rights to justify or excuse his tweet.

 

Although the Panel noted Councillor Duncan’s apology on 30 June 2014 for the offence caused, he restated his conviction to the Panel that ‘hired killers’ was an accurate description of the armed forces.

 

3.3       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).

 

 

3.4  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

 

Minutes:

3.1 The Chair stated that the hearing would follow the same procedures as for Item 2.

 

The Chair invited the Investigating Officer to outline their report in regard to case BHC-015726.

 

3.2The Investigating Officer stated that this matter related to a tweet posted by Councillor Duncan on 28 June 2014. The tweet read ‘Armed Forces Day has certainly brought the hired killers onto the streets of #Brighton today. Hard to explain to my son!’. The 28 June 2014 was Armed Forces Day, and was marked in Brighton and Hove with a Freedom of the City Parade by the Princess of Wales’s Royal Regiment. Between 30 June 2014 and 4 July 2014 60 complaints were received by Brighton & Hove City Council, which was the highest number of complaints received on a single matter. Of those, 33 indicated they happy to have their complaints considered through the Standards Complaints procedure and those complaints are shown in Appendix 2 to the report. On the 30th June 2014 Councillor Duncan issued an apology stating ‘Apols for offence caused by tweet re soldiers on streets. Many will hav been remembering loved ones who died & was insensitive to their loss’.

 

      The Chair invited the questions to the Investigating Officer

 

3.3   There were no questions

 

        The Chair invited Councillor Duncan to make his submission

 

3.4   Councillor Duncan referred to the statement he made for Item 2.

 

        The Chair invited questions to Councillor Duncan

 

3.5   Councillor Littman asked if he felt ‘hired killers’ was an accurate description of the Armed Forces. Councillor Duncan said members of the Armed Forces were hired i.e. they were paid and they must be prepared to kill, so it was a correct description.

 

The Chair invited the Investigating Officer and Councillor Duncan to make their final submissions

 

3.6The Investigating Officer said he had no further comments.

 

3.7Councillor Duncan said he had nothing further to add.

 

3.8The Chair then adjourned the meeting at 11.30am and the Panel went into recess to consider the recommendations in both Item 2 and Item 3.

 

3.9The Chair reconvened the meeting at 2.05pm after considering both Items 2 and 3

 

3.10 The Chair stated the following in response to both Item 2 and Item 3:

 

  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).

 

            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’).

 

3.11    The Chair then invited Councillor Duncan to make any representations  with regard to any sanctions the Panel may make.

 

3.12      Councillor Duncan noted the Panel’s decision, and said that he believed there should only be two possible sanctions; the law of the land and the ballot box. Further, if the Panel did decide to impose any sanctions those should not be applied until the end of the appeal process.

 

3.13      The Panel noted Councillor Duncan’s comments and went into recess  to consider possible sanctions.

 

3.14      The hearing reconvened and the Chair read out the following statement:

 

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).

 

3.15    The solicitor to the meeting explained the appeal process and stated:

 

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.

 

Supporting documents:

 


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