Councillor Martin Brookes, Oakham Town Council, First-Tier Tribunal, Judge David Laverick

IN THE FIRST-TIER TRIBUNAL GENERAL REGULATORY CHAMBER
(Local Government Standards in England)

This Monday I was in Birmingham for the Standards Tribunal. 

I think I can confidently say a few more complaints supported by Rutland County Council will be chucked out.

Most of the day was hogged by the solicitor for the ethical standards officer who was sat at the back of the room. She Seemed a nice lady. 
If I was paying this solicitor I would probably ask for a discount for her mistakes.

The Judge and his panel were very efficient and helpful to me. I don't have the benefit of a legal team paid for by the tax payer. 

Its very clear Rutland County Council has just chucked what they could at Standards for England to assist the Town Council and ex Councillors in getting rid of me. 

I hate to know what this is costing the tax payer. 

The solicitor for the ethical standards officer is not worried about costs she even said when the case was adjourned, she may be abroad but could just hop on a train and return at anytime. 

I was a little lost with her legal arguments and some times surprised by her comparisons. "If a councillor was a member of the National Front" or writing a letter to the pornographic magazine Playboy?

I can see why no one want's to be a councillor these day's if you believe the ethical standards officers case you can not say or write anything without breaching the code.

I was interested to note the reaction of the panel when the solicitor mention the investigation that found Cllr Joyce Lucas and Cllr Dewis were not homophobic when they complained to me for holding my birthday party in a gay bar and putting photographs on my personal blog. They told me this brought the council into disrepute and also the position of a councillor. 

I have decided I will now seek to appeal against the ethical standards officers findings and ask the tribunal to deal with these homophobic bigots.

As the day dragged on I think only four of the 13 complaints were dealt with. 

The Judge who should come and chair our meeting or a least train Cllr Lucas adjourned to a later date at a venue to be decided.

NOTICE OF ADJOURNMENT

REF NO: LGS/2011/0537

SUBJECT MATTER: Reference in relation to a possible failure to follow the Code of Conduct

APPLICANT: Jennifer Rogers, ESO, Standards for England

RESPONDENT: Councillor Martin Brookes of Oakham Town Council

1. The Tribunal to determine the above reference met on 15 August 2011 and heard submissions from Miss Janet Kentridge, representing the Applicant, and from the Respondent in person.
2. Those submissions were primarily about whether the actions of the Respondent which led to the allegations that he had failed to comply with the Code of Conduct of Oakham Town Council were undertaken in the Respondent's Official Capacity and whether the provisions of the Code of Conduct were compliant with Article 10 of the European Convention on Human Rights.
3. The Code of Conduct provides at paragraph 2:
4. Subject to sub-paragraphs (2) to (5), you must comply with this Code whenever you:-
   1. Conduct the business of your authority (which, in this Code includes the business of the office to which you are elected or appointed); or
   2. Act, claim to act, or give the impression of acting, as a representative of your authority

And references to your official capacity are construed accordingly

5. Subject to sub paragraphs (3) and (4), this Code does not have effect in relation to your conduct other than where it is in your official capacity

Sub paragraphs (3) and (4) are not relevant to the circumstances of this case.

6. Miss Kentridge submitted that a wide interpretation should be given to the phase “representative of your authority” as used in paragraph 2(1)(b) of the Code. She submitted that the words, “act, claim to act, or give the impression you are acting as a representative of your authority” aim to ensure that when a member of a Council acts other than in a private capacity, when he uses the title Councillor, when he uses the Council Crest on his correspondence, when he purports to be discussing the affairs of and matters pertaining to the Council, he “represents, the Council in the sense that he dons the mantle of his office.” She further submits that:

“In any situation where by holding himself out as a Councillor, the actions of a member of Council can affect the reputation of the Council that Councillor acts as a representative of the Council.”

7. The Tribunal takes a different view. The Tribunal accepts that a Councillor may do things which affect the reputation of the Council but it is only if those things are done in his official capacity that any breach of the Code of Conduct can arise. There will be times when a Councillor acts as a Representative of the Council of which he is a member. But that will usually be where he is asked, by the Council, to undertake that representative role. The Tribunal is not persuaded that the word “representative” should generally be given a wider meaning, and in particular is not persuaded that a wider meaning can be construed in the circumstances of this case.
8. Of course the Code itself identifies three situations where the Councillor is taken to be acting in his official capacity even though he is not a representative of the Council. These are when he is claiming to act as a representative of the Council, giving the impression of acting as a representative of the Council, or conducting the business of his office as a Councillor.
9. The Tribunal's present view is that the matters set out in the Application do not involve the Respondent acting as a representative of his authority. But they may well involve him conducting the business of the office of Councillor or of giving the impression of acting as a representative of the Council.
10. For his part, the Respondent has accepted that he was conducting his business as a Councillor when placing a photographs on the Town Council's Notice Board on 6 May 2010
11. The Respondent says that he regarded his blog as being in the nature of a personal diary and so not an activity undertaken as a Councillor. The Tribunal accepts that the blog includes posts from the Respondent about areas of his life other than his involvement with the Council. The blog material before the Tribunal is largely limited to those postings which are about the Council or about other Councillors. The Tribunal takes the view that the content of each of those postings and the framework of the website on which they appear needs to be considered individually in order to form a view on whether the particular action of the Respondent in posting the entry and the statements falls within the definition of conducting the business of his office as a Councillor, or gives the impression that he is acting as a representative of the Council. A similar analysis needs to be made of the emails sent by the Respondent which have also given rise to allegations that he failed to comply with the Code of Conduct.
12. Miss Kentridge accepts that there needs to be a fact-sensitive analysis of such material and submitted that although signing himself as “Councillor” is not itself sufficient to establish that the action is undertaken in an official capacity it is highly indicative of this although if the particular entry is entirely extraneous to Council business this might offset that initial assumption. The Respondent says that he uses the title Councillor to get attention to particular matters, saying it would make people take notice and show that it is about Council business.
13. The Tribunal is currently part way through hearing submissions about the particular postings and statements.
14. So far as concerns Article 10 of the European Convention, the Tribunal accepts Miss Kentridge's submission that the Code of Conduct the restrictions imposed by the Code of Conduct on the right to Freedom of Expression have been prescribed by law and that there is case law, based on the 2001 Code, supporting the view that such restrictions comply with the wording of paragraph (2) of the Article as being necessary in a democratic society for the protection of the reputation or rights of others.
15. Miss Kentridge has submitted that the right to freedom of expression is violated only if the Article as a whole (including paragraph 2) is infringed. The Tribunal is more inclined to the view that in applying the Code of Conduct, it needs to ensure that such interference as there is with the right of freedom of expression needs to be reasonable and proportionate. The Tribunal has reminded itself of the approach in Sunday Times v UK (1979-80) 2 EHRR 245 that “the Court has to be satisfied that the interference is necessary having regard to the facts and circumstances prevailing in the specific case before it.”
16. The hearing has now been adjourned until Friday 30 September 2011 at a venue and time which will be notified to the parties and posted on the Tribunal's website.

16 August 2011

David Laverick

Judge