Livingstone v Adjudication Panel for England
Reference:  EWHC 2533 (Admin); (2006) HRLR 45; (2006) BLGR 799
Court: Administrative Court
Judge: Collins J
Date of judgment: 19 Oct 2006
Summary: Administrative law - Human rights - Article 10 ECHR - Freedom of expression - Offensive abuse - Codes of conduct
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Instructing Solicitors: Mayer, Brown, Rowe and Maw LLP for L; Solicitor to the Standards Board for England for the Ethical Standards Officer
Following a reception at City Hall in February 2005, the appellant L, the Mayor of London, was ‘doorstepped’ by a reporter. L responded by comparing the reporter to a concentration camp guard and asking him whether he had been a German war criminal. It was alleged, inter alia, that L had contravened paragraph 4 of the Greater London Authority Code of Conduct which states “A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office into disrepute.” The Panel found that although L had not been fulfilling his official duties at the time he made the comments, the circumstances were sufficiently “closely allied” for the Code to apply. The reasonable onlooker would have regarded L’s reputation as being diminished and given the difficulty in separating L as an individual from his professional role, the reputation of his office was also damaged. L appealed to the High Court.
(1) Whether the Code was applicable.
(2) If the Code applied, whether, as L was not acting in an official capacity, this was an infringement of the appellant’s right of freedom of speech.
(3) Whether the appellant had brought his office or authority into disrepute.
Allowing the appeal, Mr Justice Collins held that while the Code could extend to conduct outside a member’s official capacity, such as misuse of position for personal advantage, it did not apply in the present case. Restraints imposed by a code of conduct designed to uphold proper standards in public life are in principle likely to fall within Article 10(2) ECHR but such restraints should not extend beyond what is necessary to maintain those standards. In this instance the extension was neither proportionate nor necessary. The offensive nature of the comment was irrelevant: Article 10 included the right to cause offence. In concluding that the appellant’s comments had brought himself into disrepute, the adjudication panel had failed to distinguish between “the man and the office”. Personal misconduct was unlikely to bring the office into disrepute.
The High Court decision in this case has been welcomed for its common sense amidst the brouhaha following the Mayor’s remarks. Those in public life whose conduct is ‘overseen’ by the Standards Board can value the emphasis paid to the distinction between the man and the office as well as their right of free speech.