Members may recall the good news from January that Bromley Borough Council incorporated free speech protections for councillors into its constitution. It was an achievement the FSU played a key role in securing. Working alongside Bromley councillor Simon Fawthrop, we spent months helping to draft these protections, ensuring the Council’s Code of Conduct explicitly upholds the right to free speech.
Against this backdrop, the Ministry of Housing, Communities and Local Government (MHCLG) is now consulting on new measures to “strengthen the standards and conduct regime in England” and ensure greater consistency in how councils investigate serious breaches of their member codes of conduct. Notably, these proposals include the potential introduction of a power to suspend councillors.
The consultation is open to a wide range of respondents, including local authority elected members, officers from all types and tiers of authorities, and local authority sector representative organisations. MHCLG is also inviting responses from members of the public with an interest in local democracy, whether as engaged citizens, campaigners, or prospective local government candidates.
Given this broad potential audience, we have reviewed the consultation questions and identified an important opportunity to raise concerns about free expression.
While many of the questions are procedural (where the FSU remains largely agnostic), there are two that raise concerns about potential restrictions on free and open debate. In response, we have drafted model answers, which members and supporters can adapt and/or incorporate into any consultation submission.
PROTECTING POLITICAL SPEECH
Question 10 is open-ended and reads as follows: “If you have further views on ensuring fairness and objectivity and reducing incidences of vexatious complaints, please use the free text box below.” We suggest the following response:
Any new standards and conduct regime, whether at a local, regional, or national level, must reflect the fundamental importance of the right to freedom of speech and, in particular, recognise the narrow scope for interfering with political expression.
Under Article 10 of the European Convention on Human Rights (ECHR), incorporated into UK law via the Human Rights Act 1998, political speech – including robust or controversial opinions on public policy – receives a high level of protection. While Article 10 permits certain restrictions, such as those necessary to maintain public order or prevent harm, the courts have repeatedly affirmed that political speech warrants enhanced protection, particularly when expressed by elected representatives in the course of public debate.
This principle was reaffirmed in R v Thomas Casserly [2024] EWCA Crim 25 where the Court of Appeal quashed a conviction under the Malicious Communications Act 1988, emphasising that public officials, including councillors, must tolerate robust, and even offensive, speech in political discourse. The ruling emphasised that local authorities should not suppress lawful political expression simply because it causes discomfort or offends particular groups.
Heightened protection of this kind reflects the unique role of councillors in democratic life. Unlike employees, who are subject to workplace policies set by their employer, councillors are elected representatives who must be free to express political opinions, challenge prevailing orthodoxies, and advocate for their constituents without fear of sanction.
Too often, some councils have allowed codes of conduct to be weaponised by political agitators looking to score points off opponents. This is particularly evident during debates and speeches, where rhetorical devices such as hyperbole may be used for effect. But the problem is not confined to the chamber. Councillors must also be free to campaign and engage with their constituents without undue restriction. There must therefore be a clear distinction between a councillor’s official duties and their actions as a private citizen, as speech codes are frequently extended beyond discourse where they could be reasonably be expected to apply.
If a code of conduct is implemented that extends to councillors’ speech, it must allow for the full range of free expression within the law. While councillors should not engage in unlawful bullying, harassment, or discrimination, any formal requirement to promote diversity, equality, or inclusion (DEI) risks stifling political speech. DEI does not comprise fixed resources to be uncritically advanced, but contested topics that councillors may, in the course of their duties, need to debate, question and challenge. This is especially important given that terms drawn from the DEI lexicon are frequently poorly defined and/or inconsistently applied, creating uncertainty and increasing the risk of arbitrary enforcement – not only for councillors but for the constituents they represent. For this reason, we believe that a stipulation to “promote equalities” – such as that in paragraph 2.3 of the Local Government Association’s ‘Model Councillor Code of Conduct 2020’ – should not be incorporated into any new conduct regime. Similarly, subjective requirements to “be respectful” are open to misuse by vexatious complainants and should not be included in any proposed code.
Moreover, in any disciplinary process, there must be a requirement for due regard to be had to freedom of speech, and the awarding of sanctions made subject to tests of necessity and proportionality even in cases where a breach is found — for any speech which falls short of breaking the law, the correct place to determine a verdict is the ballot box, not a bureaucratic procedure. Councillors must also have access to a clearly defined appeals process, so that challenging a flawed decision does not require resorting to judicial review as the sole means of redress.
Finally, any proposed standards or conduct codes should be subject to public consultation before implementation, ensuring that councillors and the communities they represent have a say in shaping the rules that govern local democracy.
ENSURING TRANSPARENCY IN CONDUCT INVESTIGATIONS
Question 11 asks the following, “Should local authorities be required to publish annually a list of allegations of code of conduct breaches, and any investigation outcomes?” We believe the answer should be ‘yes’, supported by well-reasoned, context-specific arguments. Greater transparency would help to expose instances where councillors’ free expression rights, particularly their political speech rights, are being compromised or suppressed. Regular publication of such data would provide a safeguard against the misuse of conduct codes to silence dissent.
HAVE YOUR SAY
To read the consultation in full and have your say, click here or click the button below. The consultation closes at 11:59pm on Wednesday 26th February.
