Intemperate, inappropriate, unnecessarily offensive, yes. Breach of the Code of Conduct, no. So decided Collins J in the Administrative Court on 19 October 2006 on Mayor of London Ken Livingstone's controversial 'concentration camp guard' remarks to Evening Standard journalist, Oliver Finegold (see Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin)).

On 8 February 2005 the Mayor had been hosting a reception at London's City Hall to mark the twentieth anniversary of the public declaration by Chris Smith M.P. that he was gay. As the Mayor was leaving City Hall after the reception had ended Ken Livingstone was 'confronted' by Mr Finegold and an Evening Standard photographer. The altercation that took place has been well publicised and included the following exchange:

'OF.

How did tonight go?

KL.

Have you thought of having treatment?

OF.

Was it a good party? What did it mean to you?

KL.

What did you do before? Were you a German war criminal?

OF.

No, I'm Jewish. I wasn't a German war criminal?

KL.

Ah right.

OF. . . .

I'm actually quite offended by that. So how did tonight go?

KL.

Well you might be, but actually you are just like a concentration camp guard. You're just doing it 'cause you're paid to aren't you?'

Mr Livingstone subsequently made a statement to the London Assembly in which he refused to apologise for his actions. The Board of Deputies of British Jews complained concerning the incident to the Standards Board for England (SBE). On 24 February 2006 a Case Tribunal of the Adjudication Panel for England found that Mr Livingstone had breached his Authority's Code of Conduct and suspended him for one month from 1 March 2006. Following an appeal to the High Court under section 79(15) Ouseley J suspended the suspension pending the determination of the appeal.

Collins J said, perhaps surprisingly, that it was important to understand Mr Livingstone's state of mind when he was confronted by Mr Finegold. For Livingstone 'had been the target of the Daily Mail in particular, which was owned by Associated Newspapers who also owned the Evening Standard' and Mr Livingstone described '. . . how he had been persecuted by the Mail Group in particular. Journalists had been despatched to try to obtain comments or information adverse to him from his family and his partner and from neighbours.' Collins J said that this conduct was 'disgraceful' and had not been disputed by the Mail Group. In addition, Collins J indicated that Mr Livingstone:

'. . . loathed and despised Associated Newspapers because of its past record of pre-war support for anti-Semitism and Nazism and what he regarded as its continuing racist bigotry, hatred and prejudice. Whether or not all would regard that as a reasonable view of the approach of the newspapers owned by Associated Newspapers, it was a view which he honestly held. Part of the bigotry which he believed to exist was an anti-gay attitude. Thus he was suspicious of the motives of the Evening Standard news editor in sending a reporter and a photographer to wait outside the reception, having regard to what it was celebrating, with a view to seeing who had attended it.' (Emphasis added).

Section 52(1) of the Local Government Act 2000 (amongst other things) requires a local authority member to '. . .before the end of the period of two months beginning with the date on which the code of conduct is adopted, give to the authority a written undertaking that in performing his functions he will observe the authority's code of conduct' (emphasis added).

Paragraphs 4 and 5(a) of Article 2 in Schedule 1 to the Model Code of Conduct (in the Local Authorities (Model Code of Conduct) (England) Order 2001 S.I. 2000 No. 3575) provide that:

'4. 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 or authority into disrepute.

5. A member -
(a) must not in his official capacity, or any other circumstance, use his position as a member improperly to confer on or secure for himself or any other person, an advantage or disadvantage. . .' (Emphasis added).

An issue arose as to whether these provisions in the Model Code were ultra vires in so far as they cover conduct beyond official capacity. Whilst Collins J considered that the phrase 'or any other circumstance' 'must receive a narrow construction' so that it '. . .will not extend to conduct beyond that which is properly to be regarded as falling within the phrase 'in performing his functions'', he did not think that this phrase meant that the Model Code is to that extent ultra vires.

Collins J took the view that the expression 'in performing his functions' in section 52(1) '. . .must be construed so as to promote the purpose of the statutory provisions, namely the setting of standards for and the regulation of conduct of those who choose to enter local government.' Consequently, he considered that whilst the words do not necessarily cover the same conduct as 'in his official capacity' they 'may extend further':

'They must cover activities which are apparently within the performance of a member's functions. Thus misuse of the position for personal advantage will appear to whoever is affected by it to have been in the performance of functions. It seems to me that the expression should be construed so as to apply to a member who is using his position in doing or saying whatever is said to amount to misconduct. It is obviously impossible for a member who was acting in his official capacity to argue that by acting improperly he was not performing his functions. Such a construction would emasculate the system set up by Parliament.'

But Collins J also considered that when a member is not actually acting in his official capacity (which includes dealing with staff, representing the Council and dealing with constituents' problems) the member will still be covered by the Code if he misuses his position as member. In the Judge's view there needs to be a link between the conduct in question and membership of the Authority.

Highlighting the deference to be given to the views of the electorate in respect of elected members (one of the strands in Sanders v Kingston [2005] EWHC 1145) Collins J said that:

'It is important to bear in mind that the electorate will exercise its judgment in considering whether what might be regarded as reprehensible conduct in a member's private life should bring his membership to an end in due course.'

Nevertheless, whilst clearly regard to and appropriate deference to the electoral position of and democratic control of members is necessary, equally the standards and conduct regime has statutory authority expressing the will of Parliament.

No doubt warming the hearts of off-duty and eccentric members everywhere, were the observations of Collins J that it is:

'. . .important that the flamboyant, the eccentric, the positively committed - one who is labelled in the somewhat old fashioned terminology, a character - should not be subjected to a Code of Conduct which covers his behaviour when not performing his functions as a member of a relevant authority.' (Emphasis added).

Collins J noted that the Case Tribunal 'correctly decided' that the appellant was not in his official capacity when he made the remarks in question and considered that it was not 'even arguable that when making them he was performing his functions as Mayor'. Therefore, he found that on 'its true construction, Paragraph 4 of the Code of Conduct' did not apply to Mr Livingstone's remarks. Nevertheless, many well find it surprising that the Mayor in attending what was apparently a publicly funded event in his official capacity was outwith the Code of Conduct as he left that public event. However, in the view of Collins J, Mr Livingstone:

'. . . had ceased to act in his official capacity as host of the reception and was leaving the building to go home. He was accosted outside the building, but it does not seem to me to matter when he was approached. It might have been when he reached his front door. Would that have been regarded as sufficiently proximate in time or place? If not, where does he have to be and how long after he has ceased his official duties for such proximity to exist so as to justify the application of the code? The answer in my view is that since he was off duty, there was no basis for finding that what he said was, to use the Tribunal's words, so closely allied to his official duties as to justify the restraint on his freedom to express himself within the law as forcibly as he thought fit.'

Also suprisingly, Collins J considered that unlawful conduct was not necessarily covered by the Code. Consequently, on his analysis, a councillor who shoplifts or is guilty of drunken driving will not be caught by the Code 'if the offending had nothing to do with his position as a councillor.' For it seemed to him that:

'. . . if it is thought appropriate to subject a member of a local authority to a code which extends to conduct in his private life, Parliament should spell out what is to be covered.'

However, despite that, did Mr Livingstone conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute per paragraph 4 of Article 2 in Schedule 1 to the Model Code of Conduct Order? Collins J noted that the right of freedom of speech had always been recognised by the common law. And whilst restraints imposed by a code of conduct designed to uphold proper standards in public life are likely in principle to be within Article 10(2), it is important that the restraints should not go beyond what is necessary to maintain those standards. Article 10(2) in summary provides that the right to freedom of expression may be subject to such restrictions etc as are necessary in a democratic society to promote various aspects of the public interest.

Although Collins J considered that Mr Livingstone was not expressing a political opinion (political expression attracting a high degree of protection) and was 'indulging in offensive abuse of a journalist', nevertheless:

'Anyone is entitled to say what he likes of another provided he does not act unlawfully and so commits an offence under, for example, the Public Order Act.'

Collins J observed that: 'Surprising as it may perhaps appear to some, the right of freedom of speech does extend to abuse. Observations, however offensive, are covered'. He then cited a passage from Hoffman LJ in R v Central Television plc [1994] 3 All ER 641

‘Freedom means. . . the right to say things which 'rightthinking people' regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute ... It cannot be too strongly emphasised that outside the established exceptions. . .there is no question of balancing freedom of speech against other interests. It is a trump card which always wins.'

As to the issue of bringing his office or authority into disrepute, the Court did not agree with the view of the Case Tribunal that:

'. . . 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 him as an individual from the role of the office he holds, have also concluded that the remarks have had the effect of damaging the reputation of his office as Mayor.'

Collins J had no doubt that the Tribunal was entitled to conclude that what Mr Livingstone said did bring him into disrepute. However, he was 'less clear that in reality it was right to say that the office of Mayor was brought into disrepute.' For:

'While the appellant has a high profile as Mayor, I doubt that many people would regard what he did as bringing disrepute on the office rather than on him personally. Misuse of the office can obviously bring disrepute on the office, but personal misconduct will be unlikely to do so. I think the Tribunal applied a test which failed to recognise the real distinction between the man and the office.'

However, in case it might be thought that Collins J was endorsing the conduct of Mr Livingstone, the Judge made it clear that his decision must not be taken as an indication that the Mayor's actions were appropriate:

'They clearly were not. His initial question: "Were you a German war criminal?" was obviously intemperate. However strongly he felt about the impropriety of the journalist's conduct, the remark was unnecessarily offensive. In itself, it would not have led to the proceedings against the appellant. But, when he knew that Mr Finegold was particularly offended because he was Jewish, to go on to compare him to a concentration camp guard was indefensible. He should have realised it would not only give great offence to him but was likely to be regarded as an entirely inappropriate observation by Jews in general and those who had survived the holocaust in particular.'

And for the Mayor, 'sorry' did seem to be the hardest word. For whilst Mr Livingstone could have put the criticism to rest by apologising he chose not to do so. But:

'He could and in my view should have apologised for any particular hurt occasioned, not only to him but to others, including, but not limited, to Jews for whom the actions of the Nazis in the establishment and use of concentration camps were especially loathsome. Had he done so, it is likely that no action would have been taken against him.'

This decision will clearly have come as a relief to the Mayor but where does it leave the law in this area? If the analysis of Collins J is right it now appears that:

  1. The Code covers misconduct in a councillor's official capacity or if a member otherwise 'misuses his position as a member'. However, there does need to be a link with the member's membership of the Authority.

  2. As Collins J put it, the 'flamboyant, the eccentric, the positively committed - one who is labelled in the somewhat old fashioned terminology, a character - should not be subjected to a Code of Conduct which covers his behaviour when not performing his functions as a member of a relevant authority' (emphasis added).

  3. Unlawful conduct is not necessarily covered if the offending is unrelated to the member's position as councillor.

  4. The right of freedom of speech extends to abuse and restraints on this freedom should not go beyond what is necessary to uphold proper standards in public life.

  5. Although Mr Livingstone had not been expressing a political opinion at the time, Collins J acknowledged (e.g. per Wilkie J in Sanders . Kingston [2005] LGR 719) the high level of protection given to expressions of political views.

  6. Conduct which brings an individual councillor into disrepute may not also bring his or her office into disrepute.

  7. It appears that a member's acting in an 'official capacity' does not extend to circumstances peripheral to discharging official duties e.g. leaving the premises thereafter.

  8. Democratic control and the views of the electorate are relevant considerations. Nevertheless, the conduct regime does reflect the will of Parliament.

  9. Whilst 'sorry' may be the hardest word, it can save a lot of trouble and expense for all concerned.

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