Complaint number LA/E/177 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Maureen Child of City of Edinburgh Council

• Introduction
• Outline of the Complaint and the Response
• The Investigation
• Consideration of the Evidence
• Findings and Conclusion

Introduction

1.1 Complaint number LA/E/177 alleges a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of Section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaint has been lodged by Councillor Ian Berry ("the complainant") who alleges a contravention of the Code by Councillor Maureen Child ("the respondent"). The respondent is a Labour member of City of Edinburgh Council ("the Council"), and the complainant is a Conservative member.

1.3 It is alleged that the respondent has contravened the Councillors' Code of Conduct, and, in particular, the provisions relating to the Use of Council Facilities set out in paragraph 3.17:

"The Council will normally provide facilities to assist councillors in carrying out their duties as councillors or as holders of a particular office within the Council. This may involve access to secretarial assistance, stationery and equipment such as telephones, fax machines and computers. Such facilities must only be used in carrying out Council duties and must never be used for party political or campaigning activities. Where the Council recognises party political groups, assistance to such groups is appropriate in relation to Council matters but must not extend to political parties more generally and you should be aware of and ensure the Council complies with the statutory rules governing local authority publicity."

1.4 The respondent has signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990, as amended, in terms of which the respondent has undertaken to meet the requirements of the Councillors' Code of Conduct.

1.5 For the purpose of this investigation, I was assisted by Mr Jon Miller, Investigating Officer.

1.6 This Report has been prepared for submission to the Standards Commission for Scotland in terms of section 14(2) of the 2000 Act. The Report was submitted in draft form to the respondent for any representations. Details of the representations received and the extent to which the representations have been accepted or otherwise are set out in Annexes A and B.

Outline of the Complaints and Response

The Complaint

2.1 The complainant alleges that by procuring the use of Council facilities to print copies of a leaflet on Edinburgh's transport strategy referendum which was of a party political nature and intended for public distribution, the respondent misused Council facilities.

The Response

2.2 The respondent denies that she misused Council facilities.

The Investigation

3.1 To establish the background to the complaint, the Investigating Officer sought and received information from the Council.

3.2 Having considered the documentary evidence, the Investigating Officer proceeded individually to interview the complainant, the respondent and relevant witnesses. The interviews took place on 25 and 29 April 2005.

Consideration of the Complaints and the Response

4.1 The respondent, Councillor Maureen Child, has been a Councillor for 10 years, is a member of the Labour Group on the City of Edinburgh Council, and represents the Milton Ward. She is the executive member for Sustainability and Finance, and has lead responsibility for promoting the sustainability of Edinburgh and the funding to meet its needs. Councillor Child is a non-executive director of Transport Initiatives Edinburgh, a Council-owned company charged with the responsibility of taking forward transport infrastructure projects. At national level she is a member of the UK Sustainable Development Commission which inter alia advises government on issues related to the effect of transport on climate change.

4.2 As part of her role in serving her constituents the respondent has written and distributed several editions of a newsletter entitled 'The Milton Special'. Issues have been published in March, June and September 2004, and distributed by hand within selected areas of her ward.

4.3 The editions referred to above were prepared by the respondent on her Council-provided office computer within the City Chambers. Printing was undertaken at Council expense, and without charge to the respondent, by the Council Reprographic Unit. In each case the text was checked to ensure that it did not contain party political content by Beverley Wilson, the Members Services Manager, and cleared for publication.

4.4 In January 2004 the Council adopted a local transport strategy which contemplated the funding of transport improvements by the introduction of a congestion charge. To permit such a charge it was necessary for the Council to make a charging order which would require to be confirmed by Scottish Ministers in terms of section 51 of the Transport (Scotland) Act 2001. A non-statutory referendum was designed for the citizens of Edinburgh to choose the Council's preferred strategy of major transport investment, funded by congestion charging, or retain the base strategy of investment and transport measures, already in the pipeline. These two propositions, which were contentious, were characterized as the 'Yes' and 'No' positions.

4.5 The Council consists of 58 Councillors. In terms of political representation there are 30 Labour members, 15 Scottish Liberal Democrat members and 13 Conservative members. Of the political groups, both the Conservatives and Scottish Liberal Democrats were against the Council's preferred strategy for transport (which included congestion charging) with the Labour Group for the preferred strategy.

4.6 The Chief Executive issued a letter dated 6 January 2005 to all councillors about the administration of the referendum. The letter includes the following statements –

"As noted above, the information leaflet (that is, the Council's own leaflet) must comply with Section 2 of the Local Government Act 1986 and the "Code of Recommended Practice on Local Authority Publicity". It requires to be informative and neutral about the Council's Local Transport Strategy and it must not promote a vote one way or another. These provisions apply equally to all publicity generated by and on behalf of the Council."

"Section 2 of the Local Government Act 1986, together with the Code of Recommended Practice on Local Authority Publicity, prevent a local authority from publishing any material which, in whole or in part, appears to be designed to affect public support for a political party. The provisions further require that, in determining whether material falls within this prohibition, regard shall be had to the content and style of the material, the time and other circumstances of publication and the likely effect on those whom it is directed. I enclose a copy of the Code for your assistance and draw your attention, in particular, to paragraphs 11 to 19 and to paragraph 43."

"Officials will continue to be accessible to elected members during the moratorium period. Subject always to complying with the 1986 Act and the Code on Publicity, together with this Council's Code of Conduct, officers will continue to provide factual information to members in an objective manner. Officials will be reminded of their duty to be vigilant about the publication of material and the use of facilities for political purposes. If you require further direction on this matter you may wish to consult the Election Guidance provided on the Council Intranet."
Section 2 of the Local Government Act 1986, as amended, is in the following terms:-

"2. Prohibition of political publicity

(1) A local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party.

(2) In determining whether material falls within the prohibition regard shall be had to the content and style of the material, the time and other circumstances of publication and the likely effect on those to whom it is directed and, in particular, to the following matters:-

(a) whether the material refers to a political party or to persons identified with a political party or promotes or opposes a point of view on a question of political controversy which is identifiable as the view of one political party and not of another;

(b) where the material is part of a campaign, the effect which the campaign appears to be designed to achieve.

(3) A local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section from publishing themselves."

4.7 The respondent strongly supported the congestion charge and judged that it was incumbent upon her to ensure that her constituents were fully aware of the issues to provide an informed basis for their vote. Accordingly she decided to dedicate an edition of 'The Milton Special' newsletter to this topic. It was her intention on this occasion to produce sufficient numbers to ensure that a copy was delivered to every house within her ward.

4.8 On this occasion the respondent composed the leaflet on her office computer at the Council Chambers. She headed the leaflet with the Labour Party logo to clearly distinguish the document from material produced by the Council.

4.9 The text of the newsletter contained information which had also been made available in Council publications and on their website but solely advocated a 'yes' vote and did not provide balanced views (as the Council's official leaflet had done). Its political branding was apparent by the presence of the Labour Party logo; the statement that printing and publication had been undertaken by the Labour Party, Portobello High Street; information on how to join the Labour Party; and the opening statement in the text that 'The City of Edinburgh Council Labour Administration is asking for your support…' The 'Yes to Edinburgh' logo was also displayed and the tenor of the document clearly urged the recipients to vote in favour of congestion charging.

4.10 As time was pressing, the respondent asked her Secretary, who is a Council employee, to ascertain whether the newsletter could be printed by the Council reprographics unit. The leaflet would also require to be folded and inserted in envelopes; address labels had to be affixed to the envelopes and the envelopes franked and posted. Councillor Child asked her Secretary to make the necessary arrangements for these tasks to be undertaken using the Council facilities on the understanding that any costs incurred would be invoiced to the respondent.

4.11 The respondent's Secretary showed the newsletter to Beverley Wilson, Members Services Manager (her line manager) who noted the presence of the Labour Party logo and advised that it could not be produced by the Council as part of the democratic process due to its overtly political appearance. On learning that the respondent sought to pay for its production, and on ensuring that neither the leaflet nor its containing envelope would bear an obvious link to the Council, she allowed it to go ahead without seeking further authority from senior management. The only stage of production that came within her immediate control was the use of the letter folding machine and Ms Wilson insisted that the respondent must operate this herself in addition to paying the standard charge which is applied to any use of the machine by other Council departments. The respondent did not consider an alternative means of production and did not obtain any comparative quotes from commercial printers.

4.12 The respondent's Secretary then made arrangements for the leaflet to be printed by the reprographics unit and for the purchase of address labels from the Electoral Registration Office.

4.13 The work of folding the newsletters was undertaken by Councillor Child and her husband on Friday 28 January and Saturday 29 January 2005 and the 3444 envelopes were franked and sent out to a section of the public (namely her constituents) on 31 January 2005. One of the envelopes was addressed to the complainant, Councillor Ian Berry, who resides within the respondent's ward and represents the neighbouring Duddingston ward. Councillor Berry is Secretary of the Conservative Group which was opposed to congestion charging.

4.14 On or about Tuesday 1 February 2005 the complainant received his copy of 'The Milton Special'. From examination of the code number included as part of the postmark he identified that the envelope had been franked within the City Chambers. He noted the political content and was concerned that Council facilities might have been misused for party political purposes.

4.15 The complainant drew the leaflet to the attention of the Conservative Group Leader, Councillor Whyte. On Friday 4 February 2005 they met the Council Chief Executive, Mr Aitchison, who instructed that the circumstances of its production should be investigated as a matter of urgency by the Director of Corporate Services, Mr Inch, assisted by the Council Secretary, Mr Sturt.

4.16 The Director's investigation established that the printing of the leaflet had been approved on the basis that any costs would be reimbursed by the respondent. She had in fact paid a total of £1158.12 which was drawn from her personal funds. He said the Code did not address a situation in which Council facilities are used for party political or campaigning purposes for a charge and a strict interpretation would suggest that there should be no circumstances in which this should happen. He concluded that her decision to use Council facilities for the purpose was short-sighted.

4.17 The Chief Executive accepted that while the respondent had used Council facilities she had acted in good faith and did not intentionally breach the Code. He noted the absence of clear directions to staff and councillors and instructed that a review be undertaken.

4.18 The complainant did not accept the Chief Executive's view of the matter and submitted his complaint to the Chief Investigating Officer.

4.19 In his letter of 9 February to the complainant the Chief Executive says

"In summary, the report confirms that Councillor Child's actions were in accordance with occasional precedent concerning the use of Council facilities, although the Director of Corporate Services has expressed his concern in relation to the timing of the production of the material. He does, however, conclude that, since the "Milton Special"is clearly not a Council publication, it does not breach the terms of the guidance issued by me and he further states that it does not breach the provisions of the 1986 Act.

In relation to the Councillors' Code of Conduct, a strict interpretation would indicate that there should be no circumstances in which Council facilities should be used for party political or campaigning purposes but Council practice has not always been in accordance with such a strict interpretation and officers, in a spirit of helpfulness to Councillor Child, did not challenge her request.

Councillor Child's use of Council facilities was at worst ill judged but I believe that she was acting in good faith and did not intentionally breach the Councillors' Code of Conduct. On this occasion, however, it would clearly have been preferable if the newsletter had been published commercially and I have, therefore, asked the Director of Corporate Services to review the issue of members' publications and the circumstances under which they make use of Council facilities in their printing and distribution. With this in mind, and against the likelihood of the announcement of a General Election, I consider that the best course of action is to suspend members' use of Council facilities in connection with publications for a period of three months to allow for the issue of clearer guidance for the future and I am writing to all elected members to advise them of this."

4.20 In a further letter of 28 February to the complainant, the Chief Executive adds

"You referred to Section 2(3) of the Local Government Act 1986 which states that "a local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section from publishing themselves". You also asked for a review of the findings regarding Councillor Child's newsletter and the sanctions to be taken against her.

In relation to Section 2(3) of the 1986 Act, if this Section had been breached, it would be the Council, rather than Councillor Child, which would be culpable and I do not, therefore, consider this to be grounds for reviewing the conclusions of the investigation report.

My response to your question regarding the relevance of Section 2(3) above is similar to that on Paragraph 3.17 of the Councillors' Code of Conduct. Strict interpretation might suggest that there should have been no circumstances in which any assistance whatsoever was given by the Council to Councillor Child for the publication of the Milton Special. It has, however, been the practice of the Reprographics Unit to accept private work at a charge which at least covers its costs. This was, therefore, a quasi commercial arrangement, rather than "assistance"and it has also been established that the work was accepted without reference to senior management.

Notwithstanding these comments, with the benefit of hindsight, it would have been better if this work had not been accepted at all and, as you know, this is already one of my recommendations, as part of the review about to be conducted, that the Council does not accept any private work for Councillors at a charge."

4.21 On 8 and 16 February 2005 the Edinburgh Evening News published editorial comments and an article which identified the relevant section of the Code and suggested that a strict interpretation of the Code should be applied to assure the public that Council resources were not being misused for political ends.

4.22 With regard to the review of Council facilities for the printing and distribution of members' publications, the Council Secretary has explained

"To begin the review, I made some enquiries of the staff responsible for managing the various political group offices on the practices of their Councillors in communicating with their constituents. It was immediately apparent that there was widespread understanding of the restrictions on publicity for party political purposes contained in the Local Government Act 1986, its Code of Practice, and the Councillors' Code of Conduct. There was no evidence of any abuse of these provisions.

This confirmed the view I had taken from my investigation of Councillor Child's publication of the Milton Special. There had been no doubt that this was party political and could not be produced and published at Council expense. The issue was whether the assistance provided on a commercial basis should also be precluded. Whether it was or not, a strict interpretation of the Councillors' Code of Conduct will now be applied. Council facilities will not be made available to Councillors for personal, private or party political purposes, even if they are willing to pay for them.

I discussed this conclusion with the Director of Corporate Services and it was agreed that a full scale review was unnecessary and need no longer be pursued. The guidance contained in the 1986 Act, its Code of Practice and the Councillors' Code of Conduct is adequate to guide both Councillors and staff working for them."

Findings and Conclusion

5.1 This complainant alleges that Councillor Maureen Child has contravened the Councillors' Code of Conduct as outlined in paragraphs 1.3 and 2.1 of this Report. Essentially, the complaint is to the effect that, by procuring the use of Council facilities to print copies of a leaflet on Edinburgh's transport strategy referendum which was of a party political nature and intended for public distribution, the respondent misused Council facilities and was in breach of paragraph 3.17 of the Code.

5.2 The respondent is a Labour councillor on the City of Edinburgh Council and she has been a councillor for 10 years. She represents the Milton ward. The complainant is Councillor Ian Berry who is a Conservative councillor on the Council.

5.3 In January 2004 the Council adopted a local transport strategy which contemplated the funding of transport improvements by the introduction of a congestion charge. The proposal was contentious and to gauge public support the Council agreed to organise a non-statutory referendum. In simple terms a "yes"vote would support the introduction of the congestion charge and a "no"vote would reject charging. The charging strategy was also politically divisive. Of the political groups both the Conservatives and Scottish Liberal Democrats were against the proposed strategy for the transport with the Labour Group being in favour of the proposed strategy.

5.4 The Council were anxious to ensure that the referendum would be conducted in a fair and informed way. Having taken the advice of Senior Counsel, the Chief Executive issued a letter to all councillors about the administration of the referendum (see Appendix D). This letter, amongst other things, made it clear that the Council would require to comply with the provisions of the Local Government Act 1986 regarding any publicity to be issued in connection with the referendum; the terms of the letter and the statutory provisions on publicity are set out in paragraph 4.6 above.

5.5 The respondent strongly supported the transport strategy (including the congestion charge) and decided to dedicate a special edition of "The Milton Special", her constituency newsletter, to this topic. The arrangements that were made for the drafting, printing, stamping and distribution of the newsletter are set out in paragraphs 4.7 to 4.13 above.

5.6 The leaflet solely advocated a "yes"vote and did not provide balanced views for and against the transport strategy, as the Council's official leaflet had done. The leaflet included the Labour party logo and provided information on how to join the Labour party. The "Yes to Edinburgh"logo was also displayed and the tenor of the document clearly urged the recipients to vote in favour of the transport strategy, including congestion charging. The leaflet was, therefore, in part designed to effect support for a political party, namely the Labour Party, and was printed for party political or campaigning purposes by promoting views on the transport strategy which was an issue of political controversy, support for which was identifiable as the view of one political party, namely the Labour Party, and not of other political parties on the Council.

5.7 The respondent drafted the leaflet on her office computer at the Council Chambers. The leaflet was printed and folded and envelopes were provided addressed and stamped for the distribution of the leaflet to the respondent's constituents by the use of Council facilities (in the Lord Provost's and Members Services' Office, the Reprographics Unit and the Electoral Registration Office). The respondent was charged for costs relating to the printing and stamping of the leaflet (including the provision of envelopes and address labels) and has paid those charges to the Council.

5.8 Section 2(1) of the 1986 Act provides that a local authority shall not publish any material which, in whole or in part, appears to be designed to affect public support for a political party. Section 2(3) further provides that a local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section by publishing themselves. The Council would have been prohibited from themselves publishing the leaflet in terms of section 2(1) of the 1986 Act as the leaflet was designed to effect public support for a political party (as provided for and defined in section 2(1) and section 2(2) of the 1986 Act). The Council did plainly give assistance to the respondent for the publication of the leaflet by the printing etc. of the leaflet and, having regard to section 2(3) of the Act, and I find that they were not lawfully entitled to do so. The fact that certain charges were levied – and paid by the respondent – does not alter the fact that assistance was given through the use of Council staff and printing resources.

5.9 Paragraph 3.17 of the Code provides that facilities provided to assist councillors in carrying out their duties as councillors must only be used in carrying out Council duties and must never be used for party political or campaigning activities. The procurement of Council facilities for the printing etc. of the leaflet which was used for party political or campaigning purposes was in contravention of these provisions in paragraph 3.17 of the Code and I find accordingly.

5.10 Paragraph 3.17 also provides that councillors should be aware of and ensure the Council complies with the statutory rules governing local authority publicity. By seeking assistance from the Council for the printing etc. of the leaflet which the Council themselves could not lawfully have published, the respondent failed to ensure that the Council would comply with the provisions of section 2(3) of the 1986 Act and she was accordingly in contravention of these further provisions in paragraph 3.17 of the Code and I find accordingly.

5.11 Paragraph 3.17 makes no exception for the provision of services to a councillor on receipt of payment. I do not consider this to be a relevant factor in examining the application of the Code but I am satisfied that payment was made by Councillor Child at the rates applied internally by the Council, and that preferential terms were not applied. There is no evidence that the respondent opted to use the Council facilities on the basis of a cost advantage over the private sector. Some staff time was spent on making the arrangements (for example, the respondent's Secretary's time) although this was limited and modest.

5.12 At the end of the day, the decision taken to allow the printing of the leaflet provided the respondent paid the charges involved (when the initial decision was to refuse to print) could only reasonably be regarded as misguided and made in a spirit of helpfulness and may well have been different if the matter had been reported to more senior officials. There was in fact evidence that such arrangements had been agreed only on very limited and infrequent cases in the past and they had all involved non-controversial matters. The absence of clear guidance to officers and members in this respect is apparent and this has now been addressed by the review instructed by the Chief Executive.

5.13 Nevertheless it is clear that the respondent did use Council facilities for party political purposes and this fact became known both to the complainant and the wider community via the press. The timing was particularly sensitive with a contentious referendum in the offing and, as an experienced councillor who had received training in the provisions of the Code, the respondent should have been more aware that she might breach the provisions of paragraph 3.17. The branding and intent of her leaflet was overtly political and there were alternative means of production and distribution which could have been arranged outwith the Council. I do not accept that pressure of time or convenience of production are sufficient explanations to permit a relaxation of the restrictions imposed by the 1986 Act and the Code.

5.14 In relation to complaint number LA/E/177, I have concluded that, in terms of the findings in section 5 of this Report, Councillor Maureen Child has contravened the provisions of the Councillors' Code of Conduct set out in paragraph 3.17 of the Code relating to Use of Council Facilities.

D Stuart Allan
Chief Investigating Officer
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
KY11 2UU
13 August 2004