Smack Mack, don’t sack, give the man a bone! Belligerent councillors, free speech and the right to stand for election

As a politician and public servant, one is expected to be more tolerant of criticism, and even abuse, from both the public and your political opponents. Correspondingly, public figures are provided with more discretion as to how they express themselves when airing their political views. Nevertheless, the law imposes limits, and in particular politicians at local and national level are regulated by various codes of conduct, which exist to protect other politicians and the standing and dignity of their office.

A recent decision of the Court of Session – Mack v Standards Commission for Scotland, Court of Session (Inner House, Second Division) [2022] CSIH 15 – has highlighted the dilemmas in enforcing such standards. This case was not concerned with the standards of acceptable language and conduct of such individuals, but rather the harshness and proportionality of any penalty that is imposed, but raises interesting issues of democracy, human rights and the role of judicial review.

The Ethical Standards in Public Life (Scotland) Act 2000, one of the earliest pieces of legislation enacted by the Scottish Parliament, incorporates the Nolan Principles into the conduct of public office in Scotland; provides for a Code of Conduct for all Scottish councillors (‘the Code’); and establishes both the Standards Commission for Scotland (‘the Commission’) and a Commissioner for Ethical Standards in Public Life in Scotland, whose duty is to investigate any breaches of the Code and report to the Commission.

In this case, a Scottish councillor appealed against a decision of the Sheriff Court not to review a decision by the Commission to disqualify him from being, or being nominated for election as, or from being elected a councillor for a period of 20 months (later reduced to 16 months for time already served). He was found in breach of the Code by failing to respect, and treat with courtesy, colleagues and council employees, and bullying or harassment. One example of the objected behaviour was that the councillor had said of a fellow councillor that:

In any decent society someone would simply have come round to your hoose, amputated your right arm with a blunt spoon and hit you over the heid with the soggy end, you smug, self-satisfied, precious, pious, puffed-up pompous little prick.

The appellant was a repeat offender with respect to the Code. He had previously been suspended for periods of three and seven months, and stated in an email that had refused to read the Code. Nevertheless, the appellant disputed the length of the ban as disproportionate, as it had the effect of preventing him from participating in the May 2022 election, arguing that the court should substitute a disqualification of 10 months, giving credit for the period already served.

Allowing the appeal, the Court accepted that the disqualification interfered with his right to freedom of expression, but that any sanction should be the minimum that was required to achieve the aims of maintaining standards in public life. Although the 2000 Act envisaged that, in some cases, an appropriate sanction might, because of the normal cycle of elections, prevent someone from contesting the next election; whether that effect was proportionate and appropriate depended on the circumstances.  In this case, the panel had noted he would be precluded from standing at the 2022 election, but did not appear to attach significant weight to that consideration. That was a very material factor and the panel ought to have been alive to the fact that a headline disqualification period of up to 14 months and 22 days (before discounting) could have been chosen, without disabling the appellant from standing.

The headline sanction of 20 months was excessive and, having considered the length of disqualification de novo, 14 months was selected by the Court (reduced to 10 months for the period already served) as sufficient to act as a credible deterrent, maintain public confidence, and ensure effective working relationships were maintained.

The decision appears to be very generous to the councillor, particularly as the Court felt that the finding of misconduct, and the penalty of disqualification, was fully justified. In replacing the panel’s ban with its own, the Court was obviously mindful of its own obligation, under s.6 of the Human Rights Act 1998, to comply with Article 10 ECHR, including its and the panel’s duty to be mindful of the need to provide fully democratic elections. However, given the need to respect the panel’s initial jurisdiction in these cases, one might accuse the Court of usurping the panel’s role. The decision certainly stands in stark contrast to the deference shown to Boris Johnson in deciding not to find, or sanction, a breach of the Ministerial code on bullying (FDA, R (On the Application Of) v The Prime Minister And Minister for the Civil Service [2021] EWHC 3279 (Admin).

On the other hand, the Court may have been influenced by a suspicion that the length of the ban was deliberately chosen so that the councillor could not stand in May 2022. That allegation, of improper purpose, was not made directly by the Court; although it did point out that the panel should not have taken into account its view that the councillor was unfit to hold public office when deciding the penalty. Such are the travails of the reviewing judge, especially where the case is immersed in political intrigue.