Brighton councillor’s Islam and ‘hired killers’ tweets breached council’s code of conduct

A Brighton councillor said that he would appeal against a ruling that he breached the council’s code of conduct.

Ben Duncan was found to have breached the code with two tweets – one about Islam and the other referring to soldiers as “hired killers”.

A Brighton and Hove City Council standards panel found that he had broken the rules by failing to treat others with respect.

And the panel found that he had conducted himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.

He was formally censured by the panel and it recommended that he be removed as deputy chairman of the council’s two licensing committees.

The first tweet said: “Blasphemous 7yo wants ‘Islam Book’ to press flowers in (it’s big and heavy). Should I stone her to death when I get home from work?”

The president of the Brighton District Bangladeshi Shomity, Sunny Choudhury, complained, saying that the comments do more to divide our community than bring people to together.

Less than a fortnight later Councillor Duncan said on Twitter: “Armed Forces Day has certainly bought the hired killers onto the streets of Brighton today. Hard to explain to my son!”

Two days later, on Monday 30 June, he tweeted: “Apols for offence caused by tweet re soldiers on streets. Many will hav been remembering loved ones who died and was insensitive to their loss.”

Within days the council had received 60 complaints about his tweet.

Councillor Duncan told the standards panel, sitting at Hove Town Hall: “The facts aren’t in question at all.

“I made a couple of jokes in public which offended some people. It wasn’t my intention to cause offence but offence was nonetheless caused, offence for which I promptly apologised.

“It’s the law itself which is in question today. And, as I say, it’s a very simple question: do the provisions of the code of conduct for members, defined in this council’s constitution in accordance with the Localism Act 2011, take precedence over the freedoms guaranteed in the European Convention of Human Rights, as incorporated into UK law in the Human Rights Act 1998?

“That is the question for today’s panel to decide.

“Article 10 of the European Convention of Human Rights allows free expression without interference by public authority, except in well-defined circumstances.

“These must be prescribed by law and necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary: both are necessary for an exception to be lawful under the terms of the convention.

“The code of conduct for members is prescribed by the Localism Act 2011, so the first of these conditions is clearly met. Is the second?

“There are six possible reasons for any restriction of Article 10 being necessary in a democratic society and therefore lawful.

“Let’s examine them in turn:

1. in the interests of national security, territorial integrity or public safety

None of these were impacted by either of the tweets in question. Therefore this condition does not apply.

2. for the prevention of disorder or crime

It has not been alleged that either of the tweets in question contributed in any way to crime and disorder. Therefore this condition does not apply.

3. for the protection of health or morals

It has not been alleged that either of the tweets in question has led to any negative impact on public health or public morality. Therefore this condition does not apply.

4. for the protection of the reputation or rights of others

This is the question on which your legal judgement will turn, I imagine.

Could my tweets have caused damage, in a lawful sense, to the reputation of any others? I would argue that this has been impossible, since no other party was identified in either of the tweets in question – identification being a key factor in the legal definition of reputational damage from which legal protection is necessary. If no individual has been named, it is impossible to protect their reputation.

What of the rights issue?

The tweet in question (about Islam) caused offence, but ‘not being offended’ is not a right as defined by law. The report you are considering today makes no specific allegations that the tweet sought to limit the enjoyment of the rights of others in any other way.

Similarly … the tweet in question (on Armed Forces Day) caused ‘anger’ and ‘disgust’ but ‘not being made to feel anger or disgust’ is not a right as defined by law. Again, the report you are considering today makes no specific allegations that the tweet sought to limit the enjoyment of the rights of others in any other way.

Therefore this condition does not apply.

5. for preventing the disclosure of information received in confidence It has not been alleged that either of the tweets in question led to the disclosure of any information received in confidence. Therefore this condition does not apply.

6. for maintaining the authority and impartiality of the judiciary It has not been alleged that either of the tweets in question has led to any negative impact on either the authority or the impartiality of the judiciary. Therefore this condition does not apply.

“Since none of the six possible reasons for any restriction of Article 10 being necessary in a democratic society and therefore lawful apply, it would appear that the second condition is not met, and therefore Article 10 of the European Convention on Human Rights does indeed protect me from any interference by public authority in this case.

“Since a finding that the code of conduct for members has been breached would indeed constitute interference by public authority, it would appear the panel has no option but to reject the recommendations contained in today’s report – and find that the code of conduct for members has not been breached unless it takes the view that the code of conduct legally ‘trumps’ the protections of the European Convention on Human Rights.

“This is an important point of law and I wish members of the panel well in their deliberations. “However, I wish at this stage to state clearly my intention to lodge a formal appeal in order to have this point of law clarified by a higher legal authority should the panel find otherwise.”

Council lawyer Oliver Dixon said that Councillor Duncan had 10 working days to lodge his appeal.