Decision

The Investigating Officer (IO)
introduced Wilkin Chapman’s report, and the supporting
evidence bundle. The IO summarised the complaint made against
Councillor Harrison by Councillor Bailey, who alleged that
Councillor Harrison posted a screenshot of a private text message
conversation between Councillor Bailey and Councillor Harrison,
accompanied by the words ‘oh dear’ in a comment made on
a Facebook post.
 
Councillor Harrison posted a
text exchange between himself and Councillor Bailey on 10 March
2024 in the comments section of a post by Councillor Ben Green on
Councillor Green’s page. The original post is a video of
Councillor Ben Green on the verge of the A1. Councillor Green was
highlighting the financial reserve of £60,000 which had been
voted through into the budget for 2024/25 at the Council meeting on
29 February 2024. The amendment to the budget had been proposed by
a member of the opposition groups and seconded by Councillor
Green. 
 
The complainant alleged
breaches of paragraphs 1.1, ‘Respect’ and 4.1,
‘Confidentiality’ of the Council’s Code of
Conduct). He also alleged breaches of three of the seven Nolan
Principles (the seven Principles of Public Life). The Investigator
explained that the Nolan Principles underpinned the Code of Conduct
but did not form part of it. Allegations must relate to behaviours
under the Code and the IO confirmed that they were able to
investigate any behaviours which they felt were relevant. They
therefore investigated against the behaviours of disrespect,
confidentiality and disrepute, under parts 1, 4 and 5 of the Code
of Conduct.
 
The IO outlined the principles
of freedom of expression and the relevant European and UK
legislation, alongside Article 10 of the European Convention on
Human Rights (ECHR). The right to freedom of expression was enhanced in the area
of political commentary, but mere personal abuse did not attract
the higher protection. Freedom of speech may be curtailed if it was
lawful to do so to protect the rights and freedoms of others; there
were several pieces of UK and European caselaw which supported this
which were referenced in the IO’s report.
 
Both Councillor Bailey and Councillor Harrison were
interviewed as part of the evidence gathering process. These
interviews were part of the evidence bundle; Councillor Bailey had
signed his as a correct record, but Councillor Harrison had refused
to sign his as he did not agree with the conditions put forward by
Wilkin Chapman.
 
In the view of the IO the sharing of text messages by
Councillor Harrison constituted a breach of the Code of Conduct
under ‘respect’, ‘confidentiality’, and
‘disrepute’
 
Respect
 
The IO felt that the revealing
of the text message conversation was clearly meant to belittle
Councillor Bailey alongside the posting of a sarcastic emoji.
However, Councillor Harrison was making a political comment. If the
exchange had originally been made in public, it would have been
fully protected under political freedom of expression. However the
issue was impacted by the issues of data protection.
 
The IO felt that the text
message exchange was a private conversation. Because Councillors
were data controllers in their own right, Councillor
Harrison’s right to free speech had to be balanced against
other fundamental rights such Councillor Bailey’s rights to
data privacy. Under the UK GDPR Councillor Harrison must have had a
lawful reason for sharing Councillor Bailey’s personal data
(i.e. his personal opinions). The Information Commissioner’s
Office had confirmed that the two most likely lawful purposes for
local councils to process information are consent and legitimate
interest. Councillor Harrison did not have Councillor
Bailey’s consent to share the information and there was also
no legitimate purpose in doing so. The IO commented that
councillors were entitled, and had the right, to have private
conversations with each other, which they would not expect to be
made public.
 
 
Confidentiality
 
The IO explained that
Councillor Bailey’s private text messages were confidential
to him. Local Government Association (LGA) Guidance explained that
the disclosure of confidential information must be reasonable, made
in good faith and in compliance with the requirements of the local
authority. Guidance was also taken from the definition of public
interest in the context of confidential information, where reasons
for disclosure of such information would include criminality,
failure to comply with legislation or a miscarriage of justice. An
individual did not have to explicitly say information was
confidential for it to be classed as confidential, and a potential
discloser of that information should check first with the owner of
the confidential information. Councillor Harrison could have told
Councillor Bailey that he intended to publish the text messages on
Facebook and did not do so. The IO found that this was obviously
because Councillor Bailey would not have consented to the texts
being shared. When Councillor Bailey was made aware of the exchange
being posted on Facebook, he asked Councillor Harrison not to put
the messages on Facebook, and Councillor Harrison refused to remove
them.
 
Disrepute
 
The IO found that Councillor
Harrison brought the Council and himself as a Councillor into
disrepute. Whilst it was commendable to be open and transparent,
individuals had the right to data privacy and Councillor Harrison
had disregarded Councillor Bailey’s rights. It was clear that
Councillor Harrison’s actions had cooled ward relations with
Councillor Bailey and the two councillors were no longer
collaborating on ward matters as they had done prior to the
incident. The IO was concerned about how other councillors and
members of the public might view Council Harrison’s comments
that he regarded it as his right to make everything public if he
thought it was right to do so. The IO felt this would inhibit
councillors’ ability to talk freely and share views and would
therefore impact on the business of the Council.  
 
Councillor Bailey provided a
written statement to the Panel which supported the ‘thorough
and detailed investigation’ carried out by Wilkin Chapman
Solicitors. He accepted the conclusions within the report, and
claimed that his offer of an informal resolution, which included
the deletion of the post, and a simple apology had previously been
rejected by Councillor Harrison.
 
The Panel was then provided
with an opportunity to ask any points of clarification of the IO in
relation to the report and evidence bundle. The IO provided clarity
to the points raised, which covered:
 

explanations of the
definitions of trust, privacy and confidentiality
Councillors needed to
understand the importance of data privacy as they were data
controllers in their own right
The ‘reasonable
person’ test would be described as a member of the public
reading something with a reasonable understanding of the
issues

 
Councillor Harrison as the
subject councillor had the opportunity to ask any points of
clarification of the IO in relation to the report and evidence
bundle. The IO provided clarity to the points raised, which
covered:
 

The IO was at the
Hearing to present the facts, and also present their findings and
conclusions
The IO was not
looking to reduce Councillor Harrison’s ability to abide by
the Nolan principles of selflessness and openness
The commitment to
openness and transparency was potentially limited by certain
factors, one of these factors being data privacy

 
The meeting adjourned at
10:50am to allow the Panel to consider extra evidence submitted by
Councillor Harrison, in the form of the full version of the text
messages which contained the relevant text exchange between himself
and Councillor Bailey. The meeting reconvened at
11:03am.
 
Councillor Harrison then used
the opportunity to give his position on the complaints, The
following is a summary of the information expressed by Councillor
Harrison:
 

He was abiding by the
Nolan principles of selflessness and openness.
Others had not been
privy to the entire text message conversation between Councillor
Harrison and Councillor Bailey. Councillor Harrison’s view
was that he only released the pieces of the text message
conversation that were relevant to Councillor Green’s
highlighting of the Conservatives role in £60,000 funding
being achieved.
Point 14 of
Councillor Bailey’s statement within the pack highlighted a
‘hatred between the Conservatives and Councillor
Harrison’ at the time of the text message
conversation.
He felt that the
public had a right to be aware of the proceedings of the Full
Council meeting of February 2024 where the budget was voted
on.
There had previously
been a relationship between the two Councillors, and Councillor
Bailey had attended Councillor Harrison’s surgery at
different times prior to this investigation.
A series of
complaints, in Councillor Harrison’s view had been stored for
a period of time and then submitted within days of each
other.
He felt that
Councillor Bailey had breached the Nolan principles of
accountability, honesty and integrity.
He did not have the
time to sign the transcript sent to him by Wilkin Chapman due to
his other jobs, roles and commitments.
He disagreed that the
phrase ‘oh dear’, posted with the text exchange was
disrespectful.
At no point had
Councillor Bailey said the text message exchange was
confidential.

 
The IO responded to some of the
points raised by Councillor Harrison:
 

The additional
evidence submitted by Councillor Harrison could have formed part of
the investigation had it been submitted at that time.
Councillor Harrison
had said that he and Councillor Bailey were communicating on
private phones, therefore the IO concluded that Councillor Harrison
was aware that their text message exchange was intended to be
private.
All Councillors have
private opinions, and councillors should retain the right to
express them in private. What matters in a public meeting is how
councillors debate and vote on an issue.
Highlighting that
councillors are entitled to vote for or against a particular
amendment to an issue and then vote in a different way on the
relevant issue. That was part of politics.

 
Finally, the Panel asked any
clarifications of the subject councillor. Who confirmed:
 

In general lawyers or
solicitors were better placed to investigate than people who were
not legally qualified. There were good and bad
solicitors.
A district councillor
could not exempt themselves unilaterally from the duties and
obligations of the law.
It did not
necessarily follow that freedom of expression was limited when the
data privacy of another was breached.
It was for Councillor
Bailey to inform Councillor Harrison that he did not give
permission for text messages to be shared.
He had been asked to
remove the text message exchange from social media. However, recent
apologies given by others within the Council towards Conservative
Councillors had been used in the media for gain. Councillor
Harrison had informed the Monitoring Officer that he would be
prepared to remove the post on social media, but he was not
prepared to apologise.
If an assurance was
given that any apology given would not be used for political gain,
then Councillor Harrison was prepared to give an apology with the
proviso that it was for perceived feelings of a breach of privacy,
and not to admit he had done anything wrong.
Both Councillors
would have worked together previously, before this
investigation.
Councillor Harrison
believed that if he had taken the post down immediately and
apologised, the apology would have been used against
him.
The relationship
between the two Councillors now was confined to a simple greeting
and contact over joint emails for resident issues. Residents did
not receive a lesser service just because their two ward
councillors were not speaking; ward issues were being dealt with by
both councillors.

 
The views of the former
Independent Person were shared with all present. He supported the
conclusion that the Code of Conduct had been breached in relation
to ‘respect’, ‘confidentiality’ and
‘disrepute’.
 
The Panel adjourned to
deliberate and reach a conclusion at 11:34am and reconvened at
1:02pm.
 
 
 
 
Conclusion
 
The Panel reached a unanimous
decision, whilst acknowledging there had been many legal
clarifications for them to understand.
 
The Hearing Review Panel
therefore AGREED that the
following elements of the Councillor Code of Conduct were breached
by Councillor Harrison:
 

1.      
Respect

 
As a
Councillor:
 
1.1         
I treat other Councillors and members of the
public with respect
 
1.            
Confidentiality and access to
information

 
As a
Councillor:
 
4.1      I do not
disclose information
a)
given to me in confidence by anyone
b)
acquired by me which I believe, or ought reasonably to be aware, is
of a confidential nature….:
 
5.       Disrepute
 
As a
Councillor:
 
5.1      I do not
bring my role or local authority into disrepute
 
The Panel AGREED that the following sanctions be
applied:
 

That Councillor Tim Harrison be
required to attend additional training on the appropriate use of
social media with an emphasis on respect, confidentiality and
disrepute.

 

That Councillor Tim Harrison be
required to attend the above training session within six
months.

 

That a Censure Notice be placed on
Councillor Tim Harrison’s profile on the Council’s
website regarding the breaches of respect, confidentiality and
bringing the council, and his office as a Councillor into
disrepute, for a period of twelve months. 

 

That Councillor Tim Harrison be
required to publicly apologise to Councillor Matthew Bailey, on
social media or online. The apology is to be made using appropriate
wording in the opinion of the Monitoring Officer.

 
 
 
 
Right of Appeal
 
Subject to judicial review,
there is no right of appeal against the decision of the Hearing
Review Panel.
 
The Hearing closed at
1:09pm.