Councillor suspended for making inappropriate remarks to man seeking renewal of licence has appeal against suspension refused

At a meeting of the Regulation and Licensing Committee in Fife on 15 December 2015, councillor David MacDiarmid, speaking about the applicant, WH, said that he did not “understand why two women would live with you never mind get married to you” and “I think this man is a bully and I don’t want bullies driving people around in taxis in Fife”.

WH’s application for renewal of his licence had prompted a letter from Police Scotland, which was not an objection to his application, but detailed allegations of violence, controlling and abusive behaviour and stalking in relation to his relationship with his estranged wife and stepson.

WH appealed the decision to the Sheriff Court. The sheriff at Kirkcaldy allowed the appeal on the basis, among other things, that the committee had acted contrary to natural justice. The sheriff reversed the committee’s decision and ordered Fife Council to grant WH a licence immediately.

WH then complained about Mr MacDiarmid to the Commissioner for Ethical Standards in Public Life in Scotland, who found that he had fallen foul of the Councillors’ Code of Conduct. The commissioner submitted a report to the Standards Commission for Scotland, whose panel also found that Mr MacDiarmid had breached the code and suspended him for two months from the committee from 23 May 2018.

It found that his remarks about WH’s relationships amounted to a personal attack and that they were insulting – contrary to the code of conduct. It also found the appellant did not benefit from the enhanced protection for politicians under article 10 as he had not been commenting on a political matter. His comments, rather, were a gratuitous personal attack on WH.

Mr MacDiarmid challenged that decision in an appeal, heard by Sheriff Principal Marysia Lewis at Perth Sheriff Court.

Submissions

Senior counsel for the appellant, Mungo Bovey QC, instructed by Scott Martin, the solicitor for the Scottish National Party, argued that the panel had made inadequate and inappropriate findings in fact and that its reasoning was not comprehensible. Furthermore, he submitted that Mr MacDiarmid’s remarks did benefit from the enhanced protection afforded by article 10 of the ECHR on the basis that WH attended the committee in two capacities, as a member of the public and as someone seeking renewal of a licence. In his latter capacity, he was comparable to a civil servant being subjected to critical comment (Heesom v Public Services Ombudsman for Wales [2014] EWHC 1504). He said the comments were made in a quasi-judicial arena and that interference with the freedom of expression of a judge calls for close scrutiny on the part of the court (Baka v Hungary 20261/12 [2016] ECHR 568). The observations were also not unconnected to the matter but made a connection between the police letter and WH’s fitness to hold a licence; to interfere with such a freedom of expression could have a chilling effect on the exercise of that freedom (Baka).

He suggested variously that the comments were the equivalent of political expression and as a result attracted protection; that they were made in the public interest and come within the ambit of political expression and that they may fall within the category of “commercial expression”.

Senior counsel for the respondent, Mark Lindsay QC, instructed by Shepherd and Wedderburn, submitted that the panel had made adequate and comprehensible findings in fact. Nor did it err in law in finding that Mr MacDiarmid’s comments did not attract the enhanced protection under article 10. Its findings and sanction were a proportionate interference with his right to freedom of expression and were justified by article 10(2). The comments were not political, commercial observation, nor in the public interest – they were a personal attack on WH. The sanction was proportionate and saw him suspended only from the committee for two months, during which time he was able to continue to perform his other duties.

Decision

As regards the first ground of appeal, that the panel erred in law by failing to make adequate and comprehensible findings in fact relative to the appellant’s conduct, Sheriff Principal Lewis said in her decision: “The panel was meticulous in its assessment of the comment noted by the officers and the context in which the comments were made.”

She added: “Reading the judgment as a whole it is clear that the panel did not conflate statements of fact and value judgments.

“Having reached that conclusion, the panel was in my view entitled to make the finding which it did. The written records combined with the findings in the report of the commissioner and the oral evidence of the appellant provide a lawful basis for the panel to consider whether these comments constituted a breach of the code of conduct.”

As regards the third ground of appeal, that the panel erred in law by deciding that the remarks of the appellant did not benefit from the enhanced protection of freedom of expression afforded by article 10 ECHR for all matters of public concern, she said: “It is abundantly clear that the comments were made in the course of determining an application for renewal of a taxi driver’s licence, a quasi-judicial setting – not the debating chamber of the council or in any other political forum. There is nothing in the material before me suggestive of the appellant indulging in political commentary, or engaging in commercial observation or discussing Council policy or matters of public concern. The contention that WH attended the committee meeting as an active participant and separately as a member of the public is somewhat illusory. WH attended the hearing for the sole purpose of securing renewal of his licence. I am not persuaded that Heesom v Public Services Ombudsman for Wales is authority for the proposition that, for the purposes of article 10(2), an applicant at a licensing hearing is open to wider levels of criticism than a member of the public.”