Ken Livingstone has been suspended for a month from membership of the Greater London Authority (GLA) as from 1 March 2006 for remarks to a Jewish reporter from the London Evening Standard that he was 'just like a concentration camp guard'. The suspension was imposed on 24 February 2006 by a case tribunal of the Adjudication Panel. However, on 28 February 2006 the suspension was frozen by the High Court pending an appeal.
Mr Livingstone's remarks were apparently made to the reporter, Oliver Finegold, after a reception at City Hall to mark the 20th anniversary of Labour MP Chris Smith's coming out as gay. According to the Times on 24 February 2006 Mr Livingstone had apparently withdrawn £4,000 from the mayoral fund to cover the reception. The Times reported the exchange as follows:
Finegold: ‘Mr Livingstone, Evening Standard - how did tonight go?’
Livingstone: ‘How awful for you. Have you thought of having treatment?’
Finegold: ‘Was it a good party? What does it mean for you?’
Livingstone: ‘What did you do before? Were you a German war criminal?’
Finegold: ‘No, I'm Jewish. I wasn't a German war criminal and I'm actually quite offended by that. So, how did tonight go?’
Livingstone: ‘Right, well you might be - but actually you are just like a concentration camp guard, you are doing it just because you are paid to, aren't you?’
Finegold: ‘Great, I have you on record for that. So, how was tonight?’
Livingstone: ‘It's nothing to do with you because your paper is a load of scumbags and reactionary bigots.’
Finegold: ‘I'm a journalist and I'm doing my job. I'm only asking for a comment.’
Livingstone: ‘Well, work for a paper that doesn't have a record of supporting fascism.’
Mr Livingstone has refused to apologise and reacting to the suspension he apparently said that: 'Elected politicians should only be able to be removed by the voters or for breaking the law'. Nevertheless, the duty to comply with the Code of Conduct is of course enshrined in section 52 of the Local Government Act 2000. This requires members to give a written undertaking to comply with the authority's code of conduct and in default they either cease to be a member or may not act as such. The Case Tribunal found that Mr Livingstone had signed such an undertaking. He was consequently in breach of the relevant statutory requirement.
The Case Tribunal had to determine whether Mr. Livingstone had failed to adhere to paragraph 4 of the GLA's Code of Conduct. This provides that:
'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'.
The Tribunal noted that the 'great many and lengthy written and oral submissions' made by Mr Livingstone both before and during the Tribunal's hearings were primarily to the effect that the application of the Code of Conduct could involve infringement of his right to free expression (Article 10 of the European Convention on Human Rights) and his right to be free of interference to his private life (Article 8). Mr Livingstone also claimed that the application of the Code constituted unlawful discrimination contrary to Convention Article 14.
Whilst the Tribunal entirely accepted that the application of the Code involves an interference with the right to free expression, it noted that this had been authorised by Parliament and the High Court had also established that such interference was permissible under the Convention. However, the Convention was concerned that by referring to 'any other circumstances' the Code of Conduct may involve a greater interference with the rights under Articles 8 and 10 than is proportionately necessary in a democratic society to secure the relevant purposes. Nevertheless, by restricting the application of the Code to those other circumstances that are closely allied to a member's official duties the Tribunal considered that the interference can be restricted to that which is proportionate to what is necessary in the interests of a democratic society.
Subject to that, the Tribunal indicated that it had approached the issue broadly in the manner adopted by Wilkie J in Sanders v. Kingston [2005] EWHC 1145 (Admin) i.e. to ask itself the following three questions: (1) was Mr Livingstone's conduct in breach of paragraph 4 of the Code; (2) if so, does such a finding (or the resulting imposition of a sanction) involve a prima facie breach of Article 8 or Article 10; (3) if so, is that interference justified in terms of the exception provided within each article. The Tribunal also considered the issue of alleged unlawful discrimination under Article 14. Since the exchange took place in a public place and Mr Livingstone knew his remarks were being recorded the Tribunal doubted whether interference with private life could be made out. To the extent that it is then such interference could be seen as necessary and permitted by law 'for the protection of the public order and morals or for the protection of the rights and freedoms of others'. As to Article 14 discrimination (where it was claimed the provisions of the Code applied only to local authority elected members and not to members of other bodies) the Tribunal noted that there are many examples of Codes of Conduct or professional rules which open those bound by them to disciplinary action based on conduct occurring in private rather than professional life. Examples include the Judicial Code of Conduct and the conduct expected of solicitors. The tribunal also noted that the decision to seek and accept office was 'an entirely voluntary act' by Mr Livingstone. Whilst having chosen to do that and having signed an undertaking to comply with the Code he attacked the legal validity of that Code. Consequently, the Tribunal did not accept that there was unlawful discrimination.
In the circumstances, and having applied the test (per Sanders v Kingston) of whether a reasonable onlooker in possession of relevant facts would find that he had caused damage to the reputation of his office, the Tribunal found that Mr Livingstone did fail to follow the provisions of the Code. It noted that:
'His treatment of the journalist was unnecessarily insensitive and offensive 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'.
The Mayor argued that his right to free expression included a right to make remarks that some people might find offensive and that whilst some people might disagree with his remarks a reasonable onlooker would not regard them as causing disrepute. And even if disrepute were caused it was to his own personal reputation and not to the office of Mayor. However, whilst the Tribunal could see a theoretical possibility that damage could be caused to the reputation of an office holder without damage being caused to the reputation of the office itself, in practice there was a very real risk that the reputation of the former would seep across to cause damage to the latter. And:
'The higher the profile of 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'.
Consequently, the Case Tribunal took the view that the reasonable onlooker would regard Mr Livingstone's own reputation as being diminished as a result of the exchange and 'bearing in mind Mr Livingstone's profile and the difficulty of separating his role from that of the Office he holds' concluded that the remarks had the effect of damaging the reputation of his Office as Mayor.
In so doing they rejected a submission from Mr Livingstone that there could be no loss to the reputation of an Office or a public authority (following the decision of the House of Lords in Derbyshire County Council v Times Newspapers Ltd and others [1993] 1 All ER 1011 (local authority did not have the right to maintain an action for damages for defamation). The Tribunal observed that were this contention to be right the effect would be that there could never be any breach of paragraph 4 of the Code. This needs to be interpreted in a way to give effect to rather than to frustrate the statutory purpose.
In determining the sanction to be imposed, the Tribunal accepted that disqualification was inappropriate in the circumstances. However, it was concerned that the Mayor did seem to have failed from the outset to have appreciated that his conduct was unacceptable, was a breach of the Code and also did damage to the reputation of his office. As indicated, in the circumstances, the Tribunal imposed one month's suspension as from 1 March 2006: (albeit that this has now been 'frozen' pending appeal).
There has been much press comment of variable quality about the Case Tribunal decision. However, whilst the facts are not in dispute and neither is Mr Livingstone's apparently consistent refusal to apologise, it remains to be seen whether the High Court will find any flaws in the decision of the Tribunal.
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