Date: 20 January 2014
Reference: Report on a complaint against Mr Phil Flanagan MLA
ISBN: Only available online
Mandate Number: 2011/15
Committee: Standards and Privileges
Complaint Phil Flanagan.pdf (4.94 mb)
1. The Committee on Standards and Privileges has considered a report from the Northern Ireland Assembly Commissioner for Standards on his investigation into a complaint against Mr Phil Flanagan MLA by Mr Jim Allister MLA. The Commissioner’s report and the complaint are appended to this report.
2. Mr Allister’s complaint of 25 July 2013 related to what he described as an “offensive and entirely inappropriate comment” which had been retweeted by Mr Flanagan on 22 July 2013. It was on that date that Prince George of Cambridge was born. There had been extensive media coverage of the impending birth. Against this backdrop Mr Flanagan had retweeted and marked as a favourite the following tweet from a comedian:
“The news says that the duchess doll entered the hospital by the back entrance. If William had done the same we wouldn’t have to suffer this balls.”
3. Mr Allister alleged that Mr Flanagan had breached the Code of Conduct and cited in his complaint the duty in the Code for Members to act in the interests of the community as a whole, as well as the principles of Promoting Good Relations and Respect.
The Commissioner’s investigation
4. The Commissioner decided that the complaint was admissible and undertook an investigation. As part of his investigation he interviewed separately Mr Flanagan and Mr Allister. The Commissioner established a number of facts relating to Mr Flanagan’s retweeting of this comment. These established facts are set out in paragraph 8 of the Commissioner’s report and include the following:
that on 22 July 2013 Mr Flanagan retweeted the comment in question;
that on 25 July 2013, following an approach from the Impartial Reporter, Mr Flanagan issued an apology in that newspaper for having retweeted the comment;
that at about the same time Mr Flanagan removed the tweet from his twitter feed; and
that Mr Flanagan has continuously maintained that he believed that the original tweet was an innocent joke about the royal birth and that he did not appreciate its alternative crude meaning until after the approach from the Impartial Reporter.
5. The Commissioner considered whether or not Mr Flanagan was acting as a Member when he retweeted the comment in question. This was significant because the Code of Conduct only applies to to Members when they are acting in that capacity. Having weighed up all the evidence, including Mr Flanagan’s account at interview, the Commissioner was not satisfied that Mr Flanagan had been acting in his official capacity. The Commissioner’s consideration of this matter is set out at paragraphs 9 to 14 of his report.
6. The Commissioner went on to consider whether the retweeting of this comment would have been a breach of the Code of Conduct had Mr Flanagan been acting in his capacity as a Member. The Public Duty principle cited by Mr Allister in his complaint provides that Members have a general duty to act in the interests of the community as a whole. The Commissioner points out that the provision cannot impose an absolute duty. While in the Commissioner’s view some would have found Mr Flanagan’s actions disrespectful, and more would have found them distasteful, he was not satisfied that they constituted a breach of the Code of Conduct. The Commissioner’s consideration of this matter is set out at paragraphs 16 to 19 of his report.
7. Mr Allister cited the principle of Promoting Good Relations which provides for Members to act in a way that is conducive to promoting good relations by providing a positive example for the wider community to follow by acting justly and promoting a culture of respect for the law. The Commissioner considered Mr Flanagan’s actions and was not satisfied that that they were likely to have any significant impact on community relations.
8. The final principle that Mr Allister cited in his complaint was that of Respect which makes clear that no person should be subjected to an unreasonable and excessive personal attack. The Commissioner considered this and said that while Mr Flanagan’s retweet was offensive it was a crude ‘joke’ which demeaned Mr Flanagan rather than the Royal Family.
9. Mr Flanagan claimed that he initially believed the original tweet to be an innocent joke. The Commissioner commented that this explanation was hard to accept and at best extremely naïve. He went on to conclude, however, that while the explanation may in the eyes of some have cast doubt on Mr Flanagan’s integrity, the Respect principle had not been breached.
10. The Commissioner also pointed out in his report that Mr Flanagan had issued an apology and deleted the retweet when initially approached by a reporter, and then apologised again when interviewed by him.
The Committee’s considerations
11. As per the Committee’s usual procedure, Mr Flanagan was provided with an advance copy of the Commissioner’s report. Mr Flanagan was informed that he was entitled to provide the Committee with his own comments in respect of any matter raised in the report. He was also informed that he could choose to give evidence to the Committee and answer in person any questions that members may have had. Mr Flanagan did not choose to avail himself of either opportunity.
12. The Committee on Standards and Privileges considered the report at its meeting on Wednesday 15 January 2014 when the Commissioner attended and answered members’ questions. Having given careful consideration to all of the matters raised in report the Committee is satisfied that Mr Flanagan has not breached the Code of Conduct. The complaint is not upheld.
13. In the first instance the Committee accepts that Mr Flanagan was not acting in his capacity as a Member when he retweeted the comment in question. However, in coming to this conclusion, the Committee recognises that when Members use social media there will often be a difficulty in differentiating between personal and professional comments. This becomes problematic when considering complaints that comments have breached the Code of Conduct.
14. The Committee has commenced a review of the Assembly’s Code of Conduct. As part of this review it will give consideration to the scope of the Code and whether it should apply to Members when it could reasonably be presumed that a Member was acting in that capacity. This would have the effect of broadening the scope of the Code.
15. The Committee also accepts that even had Mr Flanagan been acting in his capacity as a Member his conduct would not have amounted to a breach of the Code. Undoubtedly the comments were crass and Mr Flanagan’s retweeting of them was ill-advised. However, the Committee recognises that when it was put to Mr Flanagan that the retweet was offensive he immediately deleted it from his timeline and apologised. This was an appropriate response. The Committee does not believe that it was in anyone’s interest to prolong consideration of the matter any further.
16. It is at least questionable whether it is in the public interest for a Member’s ‘joke’ to be investigated as an alleged breach of the Code of Conduct. Any investigation requires time and resources which could be used in other ways. The Committee has repeatedly made clear that all Members should be free, within the law, to express any political opinion that they may hold and that the Assembly should not seek to prevent or limit any political opinion being expressed legally. Of course some might argue that offensive comments are a separate matter (even when expressed as a joke) and should be treated differently.
17. The Committee will therefore as part of its review of the Code of Conduct give consideration to what extent, if at all, restrictions should ever be placed on members’ right to free speech.
Download the full report here