January 2021 blog – Succeeding in a Complaint against a Councillor

By Dermot Feenan, Associate Research Fellow, Institute of Advanced Legal Studies, University of London

In December 2020, I successfully concluded a complaint against a county councillor in England for communications against Travellers. It is one of the few complaints made under a council code of conduct that has gone all the way to a hearing.

On 7 May 2020, Councillor David Boyes of Durham County Council posted a video on a Facebook site he used as a councillor with the following message: “This is the scene at the Nature Reserve today. Apparently a number of travelers were down today and left the tables in this state. The police have been informed.”

The video showed some scorch damage to a picnic table from disposable barbeque trays and some litter around the table.

The post received 37 comments, some with statements consistent with racially discriminatory stereotypes about Travellers. These included the following comments, some of which I have edited for this blog: ‘Bunch of inbreads [sic] scumbags’; ‘And they wonder why many people do not welcome them’; and; ‘Scruffy c*nts. They think they r above the law’. Another comment—‘scum should be f**k*ng shot oxygen thieves’—was liked by Councillor Boyes.

The complaint

On 1 June, I submitted a complaint, using the Council’s complaint form, alleging that Councillor Boyes had breached two requirements in the Members’ Code of Conduct. The alleged breaches of the Code were that Councillor Boyes did not:

• Behave in accordance with all legal obligations, alongside any requirements contained within the Council’s policies, and
• Always treat people with respect.

I cited the public sector equality duty in section 149 of the Equality Act 2010. Broadly, this requires a person who exercises public functions to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between people who share a relevant ‘protected characteristic’. One such characteristic under the Act is ‘race’, which specifically includes ethnic origins, and has been held by courts to cover Irish Travellers – though there is legal authority for extending this to other Travellers.

Background to the complaint

While I am not a Traveller, I am northern Irish (holding dual British and Irish citizenship). I trained as a barrister but have worked mostly as a law academic; continuously in England for the last seven years. My work focuses on equality and non-discrimination law. I’ve been increasingly concerned at the political shift to the far right, accompanied by racism; with Gypsies, Roma and Travellers especially at risk. My previous work addressed anti-Irish racism generally and racism against Travellers in particular. As Irish, I am concerned to uphold state recognition of Travellers as ‘a distinct ethnic group within the Irish nation’.

On 31 May, I was made aware on Twitter of the post by Councillor Boyes. I noticed that most activists talked about making a complaint to his political party: Labour. I was aware that elected members in relevant authorities in England (including, but not limited to, county councils) were subject to a Code of Conduct under the Localism Act 2011.

Holding a councillor accountable under a council code for anti-Traveller communication would establish a form of precedent that could be used throughout England. Although the decision of a local council is not recognised in law as a ‘legal precedent’ binding on any court, it still has some precedent value.

The stages of a complaint

A complaint must be submitted to a council’s Monitoring Officer, whose contact details can be obtained from the council. I submitted my complaint on 1 June 2020.

The Monitoring Officer referred the complaint for investigation.

The investigation was conducted by a partner in a law firm. His role as ‘Investigating Officer’ involved assessment of whether Councillor Boyes’ use of the word ‘apparently’ and his liking of the comment advocating violence amounted to a breach of the Code.

The Investigating Officer’s work included separate online meetings with myself and Councillor Boyes.

The Investigating Officer concluded that Councillor Boyes breached the two cited requirements of the Code.

The Monitoring Officer then decided to refer the matter to the Council’s Standards Committee Hearing Panel.

The hearing took place on 14 December 2020. A panel of three councillors decided that the press and public be excluded. I was invited to elaborate on my submission that there was racial discrimination and to address any sanction of apology by Councillor Boyes. I submitted that the Panel apply four sanctions: censure, apology, training, and removal from a committee.

The outcome

The hearing panel upheld the findings of the Investigating Officer, though imposed only two sanctions on Councillor Boyes:

(1) he should issue an apology on the Facebook page where the initial communications occurred, and

(2) he should undergo training (with all other members of the Council) on the use of social media and the Council’s public sector equality duty and related policies and procedures.

Councillor Boyes has posted an apology on his Facebook page. I have reservations about the apology and concerns about comments posted in reply to that apology which I will be address separately in due course.

Conclusion and tips

There was a risk at the various stages of this complaint that it would be dismissed. It was essential to stick to the facts and set out precisely how the code had been breached rather than simply making general accusations that might have been dismissed, e.g. ‘he was racist’. Ultimately, it was necessary to persuade several strangers that there had been a breach.

Here are 10 practical tips based on my experience which may be helpful in considering whether and if so how to make a complaint against a councillor for anti-GRT comments.

1. Record the incident. Make a copy of evidence. Keep it secure.
2. Locate the council’s code of conduct and decide whether or not, and if so how, the comment constitutes a breach of the code.
3. It may help to get a second opinion on step 2.
4. Consider whether you’ll have the patience and resolve to see this through to the end, which might involve over six months of intermittent correspondence, and participation in a formal investigation and hearing. It took me a total of about 50 hours over 28 weeks.
5. If you proceed, follow the council’s procedure.
6. Stick only to formal allegations based on facts and the code.
7. Keep a record of all communications with the council somewhere safe and easy to find.
8. If you’re on social media, keep the public updated on the steps you’ve taken.
9. Seek help, where necessary, including from organisations such as The Traveller Movement or Friends, Families and Families and ally with other activists.
10. Avoid exposing yourself to unnecessary risk. Do not allow yourself to get drawn into others’ attempts to hijack your complaint. Above all, avoid defamation.