On the 11th May 2012 the Surrey Heath Borough Council Standards Committee ruled that Councillor David Allen had violated the Council’s Code of Conduct by a posting in his blog “Who Let the Yank in” comments about a Labour Activist named Kevin Cochrane. This was overturned by Judge Sally Lister in a First-Tribunal hearing on 28th September 2012.
After the judgment in May, Cllr. Allen appealed the matter to the first-tier tribunal, and received approval from His Honour Judge David Laverick to take the matter forward. The matter was heard on Friday the 28th September 2012 by a panel of 2 civilians and one Judge, Her Honour Judge Sally Lister presiding. Judge Lister, in an extensive judgement found that Cllr. Allen was not acting in any official capacity in his role as councillor by blogging and , that his comments were entirely political in nature, and as such entirely outside of the Councillor’s Code of Conduct.
The case has large national significance in regard to how Councils across the country deal with Councillors who have strong opinions. Both Judges Laverick and Lister have rendered a number of significant judgements over the last 2 years about where the “official capacity” role of councillors and elected officials starts and stops. Councils have long used their “codes of conduct” to muzzle any dissenting councillors who they consider “out of line”. This was the first time that the court received the chance to rule on a purely political blog.
The courts have now given very narrow definition to the matter of “Official Capacity”. Cllr Allen had this to say outside the courts in London: “Thank God we now have some definition as to when and where we are acting in our official capacity as councillors. The old guard bureaucrats in the system want to hold the code of conduct over you like a Sword of Damocles to keep you in line in case you were to say or do anything they think is improper. Well that day is now over… Once you are elected, the act of breathing no longer means you are acting in an official capacity…”
The SHBC councillors on the Standards Committee making the judgement against Cllr Allen were: Mayor Bruce Mansell and Cllrs. Ian Sams from Frimley, Valerie White from Bagshot, and Ken Pedder from Camberley. The complaint by the Council Standards Committee was about a specific blog page, but the council put forward its case by bringing in evidence from across most all of the pages of the blog, essentially attempting to “put on trial” Cllr. Allen’s entire blog. In the end, Judge Lister refused consideration of all the pages that were not part of the official complaint (the 1 page of the blog with the comments), which collapsed the Council’s case in its entirety.
That aside, the Judge took the opportunity in her judgement to clarify in great detail the concept of when a councillor is acting in his/her official capacity. With each successive judgement on this issue over the last two years it has become narrower and narrower. The specific detail of the judgement is available from the First-Tribunal Legal Service, part of the Department of Justice, case Number: LGS/2012/0587.