A LONE independence–supporting councillor has won a landmark victory for freedom of political speech in Scotland.
Though he was censured on one count of breaking the local government code of conduct, Argyll and Bute councillor Mike Breslin was cleared on five of the six charges against him.
In a decision that has huge significance for Scottish politics, the Standards Commission for Scotland, which is responsible for ensuring integrity in public life, cleared Breslin on the grounds that he was entitled to make robust comments to council officials under Article 10 of the European Convention on Human Rights.
Loading article content
The independent member for Dunoon said last night: “It’s a vindication of what I have been saying all along. I just regret that it has taken 18 months and cost me a five-figure sum to get to this point.
“I am delighted that the European Convention on Human Rights was the basis for the decision today.
“My lawyer put very detailed arguments to the Commissioner for Ethical Standards in Public Life in June and he dismissed them, so today is a real vindication.”
The case was taken against Breslin by the Commissioner for Ethical Standards in Public Life following complaints made by four chief officials of Argyll and Bute Council against the former SNP member.
Their complaints was centred on statements that were made about them in e-mails concerning controversial issues such as the sale of Castle Toward School to a private developer and safety concerns at Rothesay Harbour.
The e-mails were supposedly confidential but were leaked at a time of considerable political upheaval in the council.
The panel found that Breslin breached the Code of Conduct in respect of just one e-mail he sent to the council’s head of governance, Charles Reppke, on December 29, 2014.
That e-mail was subsequently leaked to the For Argyll website and it was stated at the hearing yesterday that other matters complained of were reported in The National – this newspaper has confirmed that Breslin was not the source of our story, and repeated that to the hearing yesterday.
The Standards Commission’s panel, chaired by Ian Gordon, found that only one of the six allegations against Breslin had been substantiated and they explained that the other five charges were dismissed because though the “language and tone was robust” in the e-mails, they came “within the bounds of political expression” set out by the ECHR’s Article 10.
On the only case they found substantiated the panel said publication of the e-mail – Breslin has consistently denied leaking it – on the For Argyll website resulted in highly critical comments being directed at the head of governance.
“This demonstrated a lack of courtesy and respect to the officer,” they said. “The hearing panel considered that, by his actions, Cllr Breslin had undermined mutual trust and respect between himself and a senior officer of the council.”
A Commission press release added that the panel “did not find that five other allegations about Cllr Breslin to be breaches of the Code”.
Panel chairman Ian Gordon said: “To help ensure public confidence in local government, the Standards Commission reminds every councillor about the importance of mutual trust and respect in their relations with council officers.”
At the hearing’s end, Gordon commended the contribution to public life of Breslin as a councillor who was “fully committed” to representing his constituents.
Two independent Argyll and Bute councillors, Vivien Dance and Bruce Marshall, testified on behalf of Breslin at the hearing.
Cllr Dance said: “It’s a tremendous victory for the councillors that Michael has represented who actually want to do a good job for Argyll and Bute and who are being prevented from doing so by executive officers who make such complaints when they are asked questions they don’t want to answer.”
In all cases where a councillor is censured, a report must go from council officials to the council giving details of the case and the sanction. Since three of the most senior officials at Argyll and Bute made the complaints, it is likely that another senior officer will have to write that report.
Argyll and Bute Council told The National last night: “We understand that the Commission has found that Cllr Breslin breached the national code of local government conduct and applied a sanction. We await details of the written decision.”
Martin Hannan: Article 10 to thank for groundbreaking ruling
MIKE Breslin’s victory in successfully fending off five of the six cases taken against him by the Commissioner for Ethical Standards in Public Life in Scotland is both landmark and groundbreaking in so far as he relied on Article 10 of the European Convention on Human Rights for his defence.There was quite sufficient case law to show that politicians and others expressing a political view have a wide-ranging protection under Article 10, which states that: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Most of that case law was created in suits involving countries such as Turkey, Russia, Greece and Romania, where individuals have often been prosecuted for saying things about politicians that the politicians did not like.
What made the Breslin case so unusual was that it was four council officials at Argyll and Bute Council who had taken exception to comments that Breslin had made.
Yet nothing he said was defamatory – or else the case would surely have gone to the courts for a defamation action – and while it was robust, Breslin was making a strong case on behalf of his constituents.
The relevant case law involved a Welsh complaint.
The Appeal Court in that case stated: “Article 10 protects not only the substance of what is said, but also the form in which it is conveyed.”
It went on to explain: “Therefore, in the political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive that would not be acceptable outside that context is tolerated.”
With the decision in the Breslin case, we now have clear guidance that politicians can use critical language, even about officers, and as long as they are not personally offensive or abusive or tell lies, their rights are protected.
In other words, the freedom for a politician or anyone to speak their minds is assured, and that is surely the Scottish, and indeed British, way of things.
And that is thanks to the European Convention on Human Rights, which the Prime Minister wants to remove from national law. Why?