For the last month I have been campaigning against the proposed censorship of Assembly Members' websites.
I have now received Counsel's Opinion and I am pleased to report that Assembly Members have won the battle against censorship of their websites by the Assembly Commission. The legal advice states that the rules set out in the Guidance would not satisfy the requirements of Article 10 of the Human Rights Act because they lack clarity and certainty.
Counsel also concludes that the Assembly Commission would also be vulnerable to Judicial Review. The features of the Guidance which render it vulnerable to challenge on human rights grounds would make any decision to refuse an allowance equally vulnerable to challenge on traditional administrative law grounds in that Guidance would be open to attack on grounds of irrationality and lack of proportionality.
Counsel warns that the guidance ‘seems to lack any logical basis and to be unworkable’:
The purported distinction between Assembly business on the one hand and political activities, or promoting the interests of a person or party on the other, seems to lack any logical basis and to be unworkable. The lack of clarity as to the sanction in an individual case compounds the problem. These difficulties are of a scale that I advise that a claim that the Guidance was in breach would probably succeed and certainly the prudent course is to avoid any proceedings.
In his advice, Counsel also agreed there is ambiguity about the status of the guidance and a lack of clarity as to the dividing line between the kinds of general “political” activity. Counsel says:
If all political activity is prohibited how can that be distinguished from Assembly business: is there a category of Assembly business which is clearly not political? If there is what is the justification for excluding use of allowances for matters which are Assembly business because they are political even if not party political and how can the distinction ever be applied logically and consistently?
Counsel also comments that:
the specific point has been made that publication of speeches on the web would be acceptable but that publication of the same content not as a report of a speech would not. I think that this does serve to illustrate the problem of the distinctions which would become necessary as above. Introducing a topic as part of an account of a particular session of the Assembly may be relatively straightforward, but are verbatim passages all that are permitted? What of paraphrase or commentary, what of follow up questions and comments? Why is political or party political comment in quotation marks allowable but the same comment repeated independently on a website impermissible?
I welcome Counsel’s advice. This is a victory for common sense and freedom of speech.
The Guidance will now have to be withdrawn, and as a consequence all Assembly Members are able once again to communicate openly and honestly with their constituents, without fear of repercussion.
SUMMARY OF ADVICE FROM COUNSEL IN RELATION TO GUIDANCE ON USE OF OFFICE COST ALLOWANCE TO PAY FOR WEB-SITES
There is no legal objection in principle to the laying down of rules by the Commission as to the content of web-sites for which payment may be made using AMs' allowances or, alternatively, to the issuing of guidance by the Commission to help AMs to understand how such rules should be interpreted. Guidance must however be consistent with the rules since it is the rules themselves which must be applied.
there is ambiguity about the status of the "Guidance". It is not expressed as guidance in interpreting the Commission's Determination but as strict rules which must be observed. Those rules are more detailed and restrictive than the Determination itself. Since the Commission has the power to lay down rules (i.e. a determination) laying down rules is not outside the Commission’s powers but ambiguity about the status of the document contributes to a general lack of clarity affecting it. This is relevant to difficulties in giving effect to the "Guidance" identified below.
It as at least very arguable that insofar as the rules set out in the "Guidance" restrict those web-sites which may be paid for by an AM's Office Allowance by reference to the content of the web-site, Article 10 of the European Convention on Human Rights is engaged and it is essential therefore that those rules should, in practice, be tested against the practical requirements of Article 10.
The rules set out in the Guidance would not satisfy the requirements of Article 10 because they lack clarity and certainty. Exclusion of material furthering personal or business interests is clear and uncontroversial. However, there is lack of clarity as to the dividing line between the kinds of general “political” activity which may or may not be carried on through a web-site paid for out of the allowance. Also, there appears to be a lack of a logical basis for the distinction drawn between activities which are to be regarded as being in furtherance of an AM’s duties and those which are not. Such matters would make it impossible to satisfy the tests that a restriction on free expression must be "prescribed by law" and "necessary in a democratic society".
The features of the Guidance which render it vulnerable to challenge on human rights grounds would make any decision to refuse an allowance equally vulnerable to challenge on traditional administrative law grounds in that Guidance would be open to attack on grounds of irrationality and lack of proportionality.
The Western Mail report is here.
The Daily Post reports the news here.