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

Posted On 06 Oct 2014 at 1:56 pm

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.

Council repairs

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

Councillor Ben Duncan

Councillor Ben Duncan

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.

  1. Rostrum Reply

    To part-quote another Duncan… “What bloody man is that? He can report, as seemeth by his plight…… “

    • Rostrum Reply

      Or to put it another way…

      “I disagree with what you way, but I will defend your right to say it”…

      We can’t have a democratic system and censor what people say and write. The judgement will come at the ballot box.. It’s not for the council to limit free speak ..

  2. Valerie Paynter Reply

    It is good to have Cllr Duncan’s defence provided here. It of course probably also applies to Cllr Barnet who was pilloried for her defence in public of golliwogs.

    I wonder what the cost of this exercise has been to BHCC?

  3. Simon eden Reply

    Defence case is enough said .
    Let the Voters decide next election.

  4. Simon eden Reply

    Defence case is enough said .
    Let the Voters decide next election.
    There is no argument for

  5. Ian Chaplin Reply

    the appeal basis, of the right to freedom of speech, is all very well, but doesn’t take into account that he is a Councillor and he doesn’t have to be. If he wants to make “soundbite ” comments then he can do so without being a councillor or Committee Chairman.

    I’m not in favour of religion, but accept that others are, and wouldn’t make fun of it. If he wants to criticise the belief of others that death is an appropriate punishment for blasphemy then a tweet about flowers isn’t the place for that nuanced argument.

    Similarly, calling soldiers “hired killers ” shows no respect either to the individuals or to the society which he claims to represent.

    I’m afraid that this is, in part a reflection of the Green Party’s lack of whip, and (I assume) less than thorough vetting process for candidates. That’s part of their nature, and if we don’t like it we can vote for other candidates.

  6. George Coombs Reply

    It’s good to see some intelligent and thoughtful reactions to the cuncills blatant attempt to hinder free speech-while I do not agree with the councillors comments particularly with regard to Islam yet, if he has failed to treat others with respect (the terminology here, as used by the council, is something of anover reaction) he is not the only one-council staffs right across the board (especially in housing) also frequently fail in this area e.g by assuming they have the right to address people of sixty plus bytheir first name so i feel that while I do not agree with what the councillor is stated to have said the council, in many areas, should put its own house in order first

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