The Adjudication Panel for England Decision APE 0317 - Ken Livingstone suspended for 4 weeks as Mayor of London

ESO= Ethical Standards Officer of the Standards Board of England

Adjudication Panel for England

CASE REF: APE 0317

RE: Reference in relation to a possible failure to follow the Code of Conduct.
RELEVANT AUTHRITY CONCERNED: The Greater London Authority
ESO: Mr S Kingston

1 A Case Tribunal to adjudicate on the above reference sat on 13 and 14 December 2005 and 23 and 24 February 2006.

2 The reference followed the ESO's investigation of a case referred to him by the Standards Voard for England. That followed a complaint that had been made that Mr Ken Livingstone, the Mayor of London, made an offensive comment to Mr Oliver Finegold a journalist employed by The Evening Standard
.
3 During the first day of the hearing the Case Tribunal considered and rejected (for reasons which were announced orally) a series of submissions from the Respondent that the reference to the Adjudication Panel was invalid.

4 Also during the first two days of the hearing the Case Tribunal, after considering submssions from the parties reached the conclusion that, at the time of the exchange with Mr Finegold, the Mayor of London, who was leaving a function at City Hall was not conducting the business of his office. This means that at the time of the exchange Mr Livingstone was not required to abide by the provision in the Code of Conduct which required him to treat others with basic respect. This is because paragraph 1(2) of the GLA's Code of Conduct (which follows the Model Code of Conduct issued by the Government) provides that apart from paragraphs 4 and 5(a) of the Code, the Code shall not have effect on relation to the activities of a member undertaken on other than an official capacity. Official capacity means when the member is conducting the business of the Authority or the office to which he been elected or acting as a representative of the Authority.

Their missing "" to which he has been elected", not ours.

If Ken Livingstone had been happy with what he said to the reporter, when outside the City Hall building it would have been printed as a quotation from the "Mayor of London" rather than just from Ken Livingstone, private citizen. Therefore this argument seems a bit suspect, but Ken's lawyers seem to have got away with it.

5 The issue which remained for determination by the Case Tribunal was to determine whether Mr Livingstone had failed to follow the provision of paragraph 4 of the GLA's Code of Conduct. This provides:

A Member must not in his official capacity, or in any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute

6 After hearing oral evidence and the submission of the parties the Case Tribunal made findings of fact and thereafter began to consider submissions from the Respondent as to whether or not there had been a breach of the Code. The findings of fact are set out in an appendix to this decision.

7 The Respondent made a great many and lengthy written and oral submissions both before and during the Case Tribunal's hearings. These were primarily to the effect that the appication of the Code of Conduct could involve infringement of his right to free expression (under Article 10 of the European Convention on Human Rights) and his right to be free of interference in his private life (under Article 8). He also claimed that the application of this Code constituted unlawful discrimination with those rights contrary to Arrticle 14 of the Convention.

8 The Case Tribunal entirely accepts that the application of the Code involves an intereference with the right to free rexpression. But Parliament had authorised such interference as the Code brought about, and, it was clear before the Case Tribunal's proceedings began, the High Court in England had established that such interference was permissible under the Convention.

9 The Case Tribunal is concerned that by referring to "any other circumstances" the Code of Conduct may involve a greater interference with the rights conveyed by Article 8 and 10 than is proportionately necessary in a democratic society to secure the purposes set out in that part of the relevant articles which refer to when there can be interference with such rights. However the Case Tribunal is satisfied that by restricting the application of the Code to those circumstances which are closely allied to a member's official duties, the interference with Convention rights can be restricted to that which is proportionate to what is necessary in the interests of a democratic society.

10 Subject to that, the Case Tribunal has approached the issue before it in broadly the same way as set out in the judgement of the High Court in the case of Sanders versus Kingston by asking itself three questions in turn

10.1 Was Mr Livingstone's conduct a breach of paragraph 4 of the Code ?

10.2 If so, does such a finding (or the resulting umposition of a sanction) involve a prima facie breach of Article8 ot Article 10

"Article8" is as written in the Decision.

10.3 If so, is that interference with the Convention right justified in terms of the exception provided within each Article.

There are several exeptions in each Article.

The Case Tribunal has also concluded that the claim of that there has been unlawful discrimination of a kind prohibited by Article 14

There seems to be a bit of text missing about what they concluded about Article 14, but it all gets explained later on.

11 The exchange between the Mayor of London and a journalist which gave rise to this reference tool place immediately after the mayor left a reception at City Hall and began with the Journalist asking how the evening had gone. The Mayor chose to make some comments. Although finding that the Mayor was not at the time fulfilling his official duties (they having ceased for the day) the Case Tribunal has no difficulty in saying that the events were sufficiently proximate in time, in place and, so far as the journalist's question was concerned in content to mean, that it is proper to regard Paragraph 4 of the Code of Conduct as being applicable to the situation.

12 Bearing in mind that the exchange took place in a public place and that the respondent knew that his remarks were being recorded, the Case Tribunal is doubtful whether any interference with the Respondent's private life can as a matter of fact be made out. Insofar as the Code of Conduct can result in a member of a local authority having to account for what is said in such circumstances (when as the Case Tribunal found he was not "on duty") can be seen as an intrusion on his private as opposed to his public life then in the Case Tribunal's view such interferences can be seen as necessary and permitted by law (in the form of the promulgation of the Code), for the protection of the public order and morals or for the protection of the rights and freedoms of others.

13 The Respondent claimed that the interference with his Convention Rights as represented by the Code involved discrimination contrary to Article 14 of the Code,

Surely they mean "contrary to Article 14 of the European Convention on Human Rights" ?

basing his claim that the provisions of the Code applied only to elected members of local authorities and similar bodies and did not apply to members of other bodies. As the Case Tribunal pointed out during the course of the hearing there are many examples of Codes of Conduct or Professional Rules which have the effect of exposing those bound by them to disciplinary action which may be based on conduct which has occurred in the private rather than professional life of the person concerned. The Case Tribunal was, for example, conscious of the Judicial Cide of Conduct to which its own members were subject and to the Conduct expected of Solicitors.

14 Moreover a decision to seek and accept office of a kind subject to the Code of Conduct was an entirely voluntary act on the part of the Respondent. He had chosen to do that and had signed an undertaking to abide by the code. He then, at great length, attacked the legal validity of that Code (in the sense of consistency with the European Convention on Human Rights).

15 The Case Tribunal rejects the submission that the Mayor of London is the subject of unlawful discrimination by being expected to comply with a Code of Conduct as required by primary legislation.

16 Having so determined and applied the test of whether a reasonable onlooker in possession of relevant facts would find that he had caused damages to the reputation of his Office, the Case Tribunal has found that the Respondent did fail to follow the provisions of the Code. His treatment of the journalist was unnecessarily insensitive andoffensive and he persisted with a line of comment about likening the journalist's job to that of a concentration camp guard despite being told that the journalist was Jewish and found it offensive to be asked if he was a German War criminal.

17 The Mayor argued his right to free expression included the right to make remarks that some people may find offensive, that while some may disgree with his remarks a reasonable onlooker would not regard the remarks as causing disrepute and that even if disrepute were caused it was to his own personal reputation and not to the office of Mayor. The Case Tribunal can see a theoretical possibility that damage can be caused to the reputation of an individual holding an office without damage being caused to the reputation of the office itself. In practice, however, there is a very real risk that damage to the reputation of the former seeps across to the latter. The higher the profile of the the post and the more the postholder seeks to stamp his individuality on the office the harder it is to envisage circumstances where damage to his own reputation does not also cause damage to the reputation of the office. In the view of the Case Tribunal the reasonable onlooker would regard Mr Livingstone's own reputation as being diminished as a result of the exchange and having reached that view, bearing in mind Mr Livingstone's profile and the difficulty of separating his role from that of the Office he holds have also concluded tha the remarks have had the effect of damaging the reputation of the Office as Mayor.

18 In reaching that view the Case Tribunal rejected a submission from the respondent that there could be no loss of reputation of an Office or a Public Authority. The judgement on which the submisson was based (Derbyshire County Council v Times Newspapers Ltd) was about was made was about

Yes the Decision really does say "was about was made was about"

whether the County Council could bring an action of defamation and it was held that it could not. Were the respondent to be right in his contention the effect would be that there could never be any breach of paragraph 4 of the Code. The Code needs to be interpreted in a way to give effect to the purpose stated in the legislation and not to frustrate that purpose.

19 The GLA consists of two elements: the mayor and the Assembly. DOes the fact that the office of Mayor has been brought into disrepute mean that disrepute has thereby been caused to the Authority of which it is one component ? The Case Tribunal is sure that there is no loss of reputation to the Assembly which was the other component of this Authority. The Case Tribunal considers that the Mayor's actions had caused a risk of loss of reputation of the Authority of which he was a member but the actions of the Assembly on 14 February 2005 averted that.

20 The Case Tribunal accepts that this is not a situation where it would be appropriate to disqualify the Mayor. The Case Tribunal is however concerned that the Mayor does seem to have failed, from the outset if this case, to have appreciated that his conduct was unacceptable, was in breach of the Code and did damage tot the reputation of his office. His representative is quite right in saying, as he did on 23 February, that the matter should not have got as far as this, but it is the Mayor who must take responsibility for this. It was his comments that started the matter and thereafter his position seems to have become ever more entrenched.

21 Tge Case Tribunal noted the comments made on behalf of the Mayor that the Government had accepted the need to amend the Code to restrict the ambit of the "in other circumstances" to unlawful conduct. Were such a change to be made there would have been no breach of the particular paragraph. The Case Tribunal's understanding is that there is no firm date, or indeed any firm draft wording as to when such a change should be made. On the circumstances the Case Tribunal feel bound to deal with the matter on the basis of the legislation as it presently exists.

So, a vague promise to amend the Code of Conduct in favour of Livingstone, intended to sway the Adjudication Panel, but without actually committing the NuLabour Government to any action. How sneaky !

23 This being so the Case Tribunal considers that the appropriate sanctions is for the Mayor to be suspended for a period of four weeks from 1 March. The Standards Committee of the Authority will be informed accordingly. Under section 79(9) the relevant authority (which in this case is the GLA) must comply with that notice.

24 The Respondent has a right of appeal to the High Court against the above decision. Whilst parties should take their own legal advice about how to appeal, the Adjudication Panel's understanding is that a notice of appeal to the High Court shiuld be lodged with the Administrative Division and made within 28 days of receipt of the Case Tribunal's reasoned decision.

Chairman Mr David Laverick

Member Mr Peter Norris

Member Mr Darryl Stephenson

24 February 2006