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Report on complaint no. LA/R/02 concerning an alleged contravention of the Councillors' Code of Conduct by (i) Councillor David Mylet (ii) Councillor Derek Mackay and (iii) Councillor James Mitchell of Renfrewshire Council

  • Part 1 Introduction
  • Part 2 Outline of the Complaint and the Response
  • Part 3 The Investigation
  • Part 4 Consideration of the Complaint and the Response
  • Part 5 Findings and Conclusions
  • Appendix 1 List of Persons Interviewed
  • Appendix 2 Minute of Renfrewshire Council of 15th May 2003
  • Appendix 3 Minute of Lifelong Learning and Work Policy Board of 5th June 2003
  • Appendix 4 Minute of reconvened Meeting of the Board of 16th June 2003
  • Appendix 5 Minute of Renfrewshire Council of 26th June 2003
  • Appendix 6 SNP Statement
  • Appendix 7 Plan of Chamber Layout
  • Annex A Note on Representations on the Draft Report
  • Annex B Letter from Councillor Derek Mackay, with representations, of 1st December 2003
  • Annex C Letter from Councillor James Mitchell, with representations, of 11th December 2003
  • Annex D Chief Investigating Officer's comments on representations received

Introduction

1.1 Complaint number LA/R/02, which was received on 20th June 2003, 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 1st May 2003.

1.2 The person complaining is Councillor Roy Glen ("the complainant") and he has alleged a contravention of the Code by Councillors David Mylet, Derek Mackay and James Mitchell ("the respondents"). All these Councillors are elected members of Renfrewshire Council ("the Council") who have their principal offices in Paisley, Renfrewshire

1.3 The complaint alleges that, at a meeting of the Lifelong Learning and Work Policy Board of the Council held on 5th June 2003, Councillors Mylet, Mackay and Mitchell breached the principles of Leadership and Respect set out in section 2 of the Code and the provisions relating to Good Conduct in the Chamber or in Committee set out in section 3.14 of the Code.

1.4 For the purpose of this investigation, I was assisted by Mrs Anne Mahoney, Investigating Officer.

1.5 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 respondents for any representations. Details of the invitation to make representations, representations received and the extent to which the representations have been accepted or otherwise are set out in Annexes A to D.

Outline of the Complaint and the Response

The Complaint

2.1 The complaint relates to a meeting of the Council's Lifelong Learning and Work Policy Board held on 5th June 2003. The Board is, in effect, a committee of the Council. Paragraphs 2.2 to 2.7 summarise the allegations as made by the complainant.

2.2 The complainant, Councillor Roy Glen, is a Labour member of the Council and Convener (or Chair) of the Lifelong Learning and Work Policy Board. Councillors David Mylet, Derek Mackay and James Mitchell are SNP members of the Council. Councillor Glen alleges that Councillors Mylet, Mackay and Mitchell, while not members of the Board, were present and sat in chairs reserved for members of the Board. He says that the Clerk, Mrs Lilian Belshaw, Senior Committee Services Officer, advised them that it was normal practice for members who are not on the Board to sit in the public seating and that they could not participate in the meeting. The councillors indicated that they would remain where they were by way of protest, as they were dissatisfied at the number of places on the Policy Board which had been allocated to the majority Labour group.

2.3 Following consultation with the Clerk, Councillor Glen advised the three councillors that they could remain seated where they were, provided they did not speak or take part in the proceedings. As they did not object, he took this to indicate their tacit consent and he opened the meeting.

2.4 Councillor Glen alleges that the councillors did, however, create a disruption. He says that during item 3 they disrupted proceedings by shouting, interrupting speakers and disturbing the vote on that item. They approached the Chair, shouting loudly about the political composition of the Board and throwing in Councillor Glen's direction copies of a statement on an issue which did not relate to any matter before the Board. Instead, it related to the Council's decision-making structure which had been agreed at the statutory meeting of the Council on 15th May 2003. The complainant says that, following the vote on item 3, he adjourned the meeting for ten minutes in the hope this would calm the situation and allow the reconvened meeting to proceed in an orderly manner. On reconvening, the complainant says that he advised the councillors not to disrupt the meeting, otherwise he would require to have them removed. He asked that a Council officer be present to assist in maintaining order during the meeting.

2.5 Councillor Glen says that, during item 7, further disruption occurred when primarily Councillors Mylet and Mackay interrupted proceedings by shouting and preventing Members of the Board from being heard. He again discussed with the Clerk what measures he could take. He says that he then asked the three councillors to behave properly, which they refused to do. He then asked the Council Officer to ask Councillor Mylet, who was the most vocal on this occasion, to leave. Councillor Mylet refused.

2.6 The complainant says it was clear to him that the meeting could not progress in an orderly manner. While he could have sought to suspend the three councillors from the meeting, or called the police to secure their removal, he felt this would exacerbate an already intolerable situation. Having considered the options open to him he decided he had to adjourn the meeting to a future date. In Councillor Glen's view, the three councillors failed to comply with, and showed a disregard for, the Code of Conduct. He said that a copy of the Code had been issued to all councillors on 2nd May 2003 and that they all had been given an opportunity to attend a briefing session on the Code on the morning before the meeting of the Lifelong Learning and Work Policy Board meeting on 5th June 2003.

2.7 The complainant alleges that Councillors Mylet, Mackay and Mitchell have, therefore, breached the Councillors' Code of Conduct.

The Response

2.8 I wrote separately to Councillors Mylet, Mackay and Mitchell setting out the terms of the complaint. Paragraphs 2.9 to 2.13 below summarise the written response to the complaint jointly submitted by the three respondents.

2.9 Councillors Mylet, Mackay and Mitchell, as members of the SNP group, consider that the complaint is politically motivated and that the Standards Commission is being used in this instance to silence political debate. They expect the highest standards from councillors but contend that the action they took was necessary.

2.10 They state that the 15 strong opposition group of SNP councillors had to make a stand against the unbalanced and disproportionate number of councillors on Council bodies. They believe that the Lifelong Learning and Work Policy Board is overloaded with Labour members. In an attempt to raise the issue of proportionality and democracy, the SNP group decided to send to the Policy Board meeting on 5th June 2003 what they believed to be the appropriate number of councillors to which the SNP group was entitled. In addition to the five SNP members already appointed to the Board, Councillors Mylet, Mackay and Mitchell were selected also to attend.

2.11 The respondents have said that Councillor Glen, as Chair, refused to allow them to contribute in debate at the meeting, therefore their protest was carried out. They disagreed that the business of the meeting could not be carried out, saying that the Labour Administration often ram their way through agendas for an easy life and that meetings in Renfrewshire can often be rowdy. The 5th June meeting was uncharacteristically adjourned, and they pointed out that, at the re-convened meeting, the business was concluded in just five minutes.

2.12 They pointed to some examples of what the SNP see as anti-democratic behaviour from present and past Labour Administrations who, they say, have taken decisions to stifle debate and abused the rights of SNP opposition councillors. They say

- that, at full Council meetings, Labour prevents debate of items which have appeared on the agendas of committees or board meetings;
- that Labour changed the time of Council meetings from 7.30pm to 9.30am which was less suitable for the public to participate in the democrat process;
- that despite many requests, they have denied the SNP appropriate representation on each board and have removed SNP councillors from external organisations and joint boards;
- the position of Vice-Convener of the Scrutiny Board was to be determined by opposition parties, but the Labour Administration interfered in the selection process and denied the post to the SNP as largest opposition group with 15 seats, instead giving the post to the smaller Liberal Democrat group with only 3 seats; and that
- at policy boards and full Council meetings, business is rushed through with little debate and Labour resort to turning off SNP councillors' microphones.

2.13 The respondents have said they stand by their action; they have every respect for the Code of Conduct but also hold democracy and fairness as central to their beliefs. Their protest had taken place and they did not feel this 'one-off' incident had brought either themselves or the Council into disrepute. They said that at the Council elections on 1st May 2003, the SNP polled 39% of the vote compared to Labour's 37% and they thought the Labour group's attitude would change; however, it had become worse, hence the action the SNP had taken.

The Investigation

3.1 As a first step, I gathered information relating to the complaint from the Monitoring Officer of the Council. This included:

- confirmation of the status of the complainant and the respondents as elected members of the Council;
- the terms of reference of the Lifelong Learning and Work Policy Board;
- the agenda and relevant reports for the meeting of the Lifelong Learning and Work Policy Board on 5th June 2003, together with the minute and note made by the Clerk and the recorded audio tape of that meeting;
- a note of the allocation of seats to the various party political groups on all the Council's committees/boards, sub-committees and outside bodies; and
- the Council's Standing Orders.

3.2 I also took evidence individually from the complainant, the respondents, elected and co-opted members and officials who had been present at the 5th June Board meeting. A list of those who were interviewed is set out in Appendix 1. The interviews were carried out during the period 17th to 19th September 2003.

3.3 The minute of the meeting of Renfrewshire Council held on 15th May 2003 is attached as Appendix 2. The minute of the meeting of the Lifelong Learning and Work Policy Board held on 5th June 2003 is printed as Appendix 3. The minute of the reconvened meeting of the Board held on 16th June 2003 is printed as Appendix 4. The minute of the meeting of the Council held on 26th June 2003 is printed as Appendix 5.

Consideration of the Complaint and the Response

4.1 As part of the investigation, I received information regarding the political background of Renfrewshire Council and the structure of the Council's committees. I have been advised by both members and officials that, in the past, debate within the chamber and in committees has usually been robust and often rowdy. There was a period, particularly from around 1995 to 1999, when it was commonplace for the police to be called to Council meetings. This improved from 2000 onwards, although it remained an occasional feature of the political life of the Council.

4.2 Labour has been the ruling party on the Council since it was established in 1995 and, following the elections in May 2003, the Council has continued with a Labour Administration. Although the SNP gained a larger percentage of the vote at the local government elections held on 1st May 2003, this was not translated into additional seats on the Council. The political make-up of the Council comprises 21 Labour members, 15 SNP members, 3 Liberal Democrat members and 1 Conservative member. The position prior to 1st May 2003 was very similar except that, within the six month period before the election, one Labour member had died and another had defected to the SSP.

4.3 The first statutory meeting of the Council following the elections took place on 15th May 2003.

4.4 A report by the Director of Corporate Services was submitted to the statutory meeting indicating that the Council was entitled to arrange for the discharge of its functions, subject to a few exceptions, by a committee or sub-committee of the authority. The report detailed the existing board structure and membership. The report also intimated that, in appointing members, the Council should apply the principle of party representation in a fair and consistent manner. Whilst there was no statutory provision requiring party political balance on committees and sub-committees, COSLA had previously made it clear that it was important that councils applied the principle of party representation in a manner which could stand the test of scrutiny.

4.5 Following consideration of the report, the Council decided to retain the policy board based decision-making structure which had previously been established. A motion was put forward by the Labour Leader of the Council proposing the composition and membership of each of the Boards. An amendment was moved on behalf of the SNP group that the Boards be on a strictly proportionate basis as per COSLA recommendations. On a vote being taken, 18 members voted for the amendment and 21 for the motion and the motion was carried accordingly.

4.6 As in the previous administration, the Lifelong Learning and Work Policy Board would again comprise 11 Labour members, 5 SNP members and 1 Liberal Democrat or Conservative member. As the terms of reference of this Policy Board include dealing with the functions of the Council as education authority, the Board's membership would be required by law also to include 3 co-opted religious representatives, making a total membership of 20. Councillor Roy Glen was appointed Convener of the Board.

4.7 Also at the meeting on 15th May 2003, councillors were nominated to serve on over fifty outside bodies or joint boards. These included the appointment of Labour members as follows:

- 2 members to Strathclyde Fire Board (2 places available to the Council);
- 2 members to Strathclyde Joint Police Board (2 places available to the Council);
- 3 members to Strathclyde Passenger Transport Authority (3 places available to the Council); and
- 2 members to Renfrewshire Leisure (2 member places available with 3 officers to be appointed by the Chief Executive).

4.8 In the course of the investigation I interviewed a number of members and officials present at the meeting of the Lifelong Learning and Work Policy Board on 5th June 2003 who described the events as they experienced them within the Chamber. The Clerk, the Director of Education, Councillor Glen and Councillor M Macmillan, Senior Depute Convener of the Lifelong Learning and Work Policy Board and Mr E Smith, one of the religious representative members, told me of the form which the protest took. I learned from this that two separate interruptions occurred at the meeting; one at item 3 of the agenda and one at item 7. Councillors Mylet, Mackay and Mitchell also described the events at the meeting. I also took into account the tape recording of the meeting taken by the Clerk.

4.9 At the meeting of the Lifelong Learning and Work Policy Board on 5th June 2003, 19 items were included on the agenda of the business to be transacted. The Committee Clerk has stated that when Councillors Mylet, Mackay and Mitchell came into the meeting and sat in chairs reserved for Board members, she advised them that it was normal practice for councillors who were not members of the Board to sit in the public seating area. She discussed the situation with the Chair, Councillor Glen, who, after consideration, advised the councillors that they could remain seated where they were, but they would not be able to speak in the debate. The meeting started and progressed to item 3, Education into the 21st Century, which involved discussion of the funding of new schools through the public private partnership initiative. Towards the end of the debate which had lasted some 13 minutes and had been conducted in an orderly and purposeful fashion, the Chair indicated it would be necessary to go to the vote. The motion by the Chair was to approve the recommendations in the Director of Education's report and the amendment by Councillor Noon (SNP member) was to approve the recommendations subject to the PPP project being through a not-for-profit trust. A roll call vote was requested and it was around this point that Councillors Mylet, Mackay and Mitchell started their protest. (A roll call vote is a vote taken by the Clerk asking every committee member in turn how they wish to vote rather than by the more common showing of hands).

4.10 At the point of calling for the vote, Councillors Mylet, Mackay and Mitchell started talking noisily, in raised voices, drowning out other speakers and preventing the smooth taking of the roll call vote. Councillor Mackay read loudly and repetitively from a prepared statement which set out the SNP's views on the lack of proportionality in the composition of Policy Boards and their disagreement with the funding of schools under the public private partnership. The three councillors then left their seats and advanced close towards the Chair, maintaining the level of protest as they went. Councillor Mackay is described as having thrown or passed a batch of papers (copies of the prepared statement) onto the table (located in front of the Chair and on which the tape recording equipment was situated) and towards the Chair. The protest and the level of noise has been variously described as "noisy", "stage-managed", "intimidating", "disturbing" and "disruptive".

4.11 The Clerk told me that the Council Officer was called in. Meanwhile she was trying with difficulty to take the roll call vote, which she managed to do. The Convener informed me that he then adjourned the meeting for 10 minutes, hoping that things would calm down and they could continue. After the adjournment, the meeting was reconvened and progressed to item 7 which related to progress on an HMIE report on three schools, one of which was within Councillor Mylet's ward. At this point, Councillor Mylet started to speak again, addressing the meeting loudly, saying he was entitled to do so and wishing to congratulate the Head Teacher of the school in question. Councillor Mackay joined in, but Councillor Mitchell, who for clinical/health reasons has difficulty with speech, was less involved. The Council Officer was present and, at the request of the Convener, asked Councillor Mylet to leave the meeting room. Councillor Mylet refused and the Convener decided it would be necessary to adjourn the meeting to another day. Among those who were interviewed by me it has been said that the level of protest at this point was not on the same scale as earlier, but noisy enough to disrupt the proceedings.

4.12 Councillor Glen has told me that he did not want to call the police and again bring bad publicity to Renfrewshire Council. Both he and the Director of Education and Leisure expressed concern and disappointment that the incidents had taken place when three of the authority's school Head Teachers were present, having been invited to hear the Policy Board's consideration of the progress made in their schools.

4.13 I asked the Director of Education and Leisure whether the adjournment of the meeting had caused difficulties for her department, given that there were a substantial number of items on the agenda awaiting a decision. She confirmed that the adjournment could potentially have caused difficulty, because there were staffing issues on the agenda. After the adjourned meeting, she had agreed with staff that they could place advertisements, but not make any appointments. However, in the event, the meeting was reconvened relatively soon (16th June 2003) and the agenda was completed. In their response to me on the complaint, the SNP councillors had pointed out that the reconvened meeting was concluded within five minutes or so. They felt this indicated that there really had been no need to adjourn the meeting in the first place. Councillor Glen said that one reason why the reconvened meeting was over relatively quickly was because no SNP members of the Board attended the meeting and no objections were raised to the outstanding items. The Director of Education and Leisure said that on this occasion she did not ask the school Head Teachers to come back to the meeting.

4.14 During interviews with Councillors Mylet, Mackay and Mitchell, they told me that because of the election results, the SNP were looking for a new attitude from the Labour group, but it soon became clear that this was not going to happen. At the statutory meeting on 15th May 2003 members were appointed to outside bodies or Joint Boards. Previously, an SNP councillor was one of two members who represented the Council on Strathclyde Police Board; likewise an SNP councillor was a longstanding representative on Strathclyde Passenger Transport Authority. In the new Council, these and other appointments were given entirely to Labour councillors, and SNP members were removed despite the fact that they had been active representatives with a good attendance record.

4.15 The SNP councillors regard the Lifelong Learning and Work Policy Board as being the most undemocratic of all the Policy Boards. As Labour has 11 members, SNP councillors felt the demands of proportionality meant they should have 8 seats instead of 5 as presently allocated. Thus, in their view, the composition of seats should be Labour 11, SNP 8, Liberal Democrats/Conservative 1. Given that seats are allocated to each Board in such numbers that the ruling administration retains a majority, I asked how this would work when there are also 3 religious representatives on the Lifelong Learning and Work Policy Board who are allowed to vote. This would give a ratio of 11 Labour members and 12 other members leaving the Administration without a majority. Councillor Mylet said he is not against the religious representatives, being allowed to vote but he felt they should be added-on members.

4.16 Councillor Mylet said that Labour had not only removed SNP councillors from outside bodies or joint boards, when the SNP put up a candidate for Vice Convener of the Scrutiny Board, Labour had voted with the Liberal Democrats. This is an appointment which is filled by an opposition member, and the SNP felt it should have been left entirely to opposition members to vote on this post. When asked about their protest at the 5th June meeting, Councillor Mylet confirmed that their actions could have been seen as intimidating. He said that after their protest at item 3, he had intended to leave and was heading for the door. His two colleagues, Councillors Mackay and Mitchell, were still standing in front of the Chair at this point. Then Labour members started shouting at Councillor Mylet and because of this, and because of the adjournment of the meeting, he decided to stay and continue the protest. He asserts that if they had been left to make their protest properly, he would have left the chamber peaceably.

4.17 When it came to item 7, Councillor Mylet said he got up to speak about the HMIE report on the school in his ward. He thanked the Head Teacher and teachers at the school because it was a good report. He said he started off speaking normally, but had to raise his voice because Labour members were shouting. When the Council Officer asked him to leave the meeting room, he just said "Sorry - I can't do that". I asked Councillor Mylet if he had raised the item at a full Council meeting. He informed me that councillors are not allowed to speak on an item if they are not a member of the relevant Board. It is necessary to put up a motion, and Councillor Mylet said that full Council minutes show how many motions are put up because councillors are not allowed to talk about anything else.

4.18 Councillor Mackay agreed that at the meeting on 5 June when they made their protest, they were certainly vociferous. He confirmed that he read the prepared statement, which took the form of a letter from the SNP group to the Labour Administration. He had 15 copies of it in his hand and tried to give these to the Convener, but he would not take them. Councillor Mackay said that he then went back to his seat and that Councillors Mitchell and Mylet were leaving. The roll call vote was being taken and, while this proved difficult, it was not impossible. Councillor Mackay thought that the Convener should have allowed them to continue their protest without asking the Clerk to take the roll call vote. In making their protest, he did not think that they were shouting, but he said they had to speak loudly. In his view, the meeting did not need to be adjourned, nor did the incident merit the complaint which had been made to the Standards Commission.

4.19 Councillor Mitchell confirmed to me during interview that, when the protest took place at the meeting on 5 June, he and Councillors Mylet and Mackay came out and stood in front of the Chair. Councillor Mackay read out the prepared statement. Councillor Mitchell said there was some dispute as to how loudly everyone was shouting. He, personally, is unable to shout and said he was not even speaking. He said Labour councillors were shouting and that a Labour councillor threatened Councillor Mylet. Councillor Mitchell said that when the protest resumed at item 7 on the agenda, again he was not shouting. He informed me that this protest was a "one-off" occurrence. Councillor Mitchell said that he has no wish to be demonstrating and that his health is not up to it; but he referred to the political background which he felt necessitated their action. He said that Labour adopt undemocratic tactics and try to stop SNP councillors in debate. He also referred to the removal of SNP councillors from outside bodies, which he felt was done for no other reason than spite.

4.20 Before concluding my investigation, I enquired of the Director of Corporate Services what rights councillors had to ask questions at full Council meetings about matters dealt with by Boards. She explained that in Renfrewshire, Policy Boards had extensive delegated powers under the Council's Standing Orders and Scheme of Delegated Functions. In relation to delegated matters, she confirmed that there is only some limited ability, say to make a correction, although she thought that any reasonable question would be allowed, eg where someone wanted to ask about an up-to-date position on an item. She said that the Council had decided some time ago that decisions would be made at Policy Boards. Therefore, councillors who are not members of a particular Board would have to request a Board member to ask a question at the Board meeting. In commenting on this, Councillor Mackay considers that it is not the case any reasonable question would be allowed, that councillors commenting or questioning a matter which has been through a Policy Board is in practice prohibited and that if the Provost were to allow opposition councillors to speak on such matters this would infuriate the Labour Group.

4.21 On the question of proportionality of representation, the Director of Corporate Services confirmed that in Scotland there is no legal requirement to exercise proportionality for the purpose of the allocation of committee seats. Although the Local Government and Housing Act 1989 had contained provisions relating to proportionality, these had never been brought into force. Nevertheless, COSLA had indicated that party representation on committees must be able to stand the test of scrutiny. She felt that the Administration in Renfrew had endeavoured to have regard to COSLA's recommendation. There were problems before the election following the loss to the administration of two members and their majority was affected. On the question of appointments to joint boards, she had not been consulted before the appointments were made at the statutory meeting on 15th May 2003. She considered that if the appointments to joint boards were less than 3 there would, in any event, be no requirement to appoint opposition members.

4.22 The minutes of the meeting of the Lifelong Learning and Work Policy Board held on 5th and 16th June 2003 were approved at a meeting of the full Council on 26th June 2003. The Council also agreed, after voting, to deplore the disruptive conduct at the meeting of 5th June and to resolve that, if any member in the future should disrupt a meeting, the Council should consider removing that member from committees or outside bodies.

Findings and Conclusion

5.1 This is a complaint by Councillor Roy Glen alleging that (i) Councillor David Mylet (ii) Councillor Derek Mackay (iii) Councillor James Mitchell breached the Councillors' Code of Conduct by acting with disrespect and failing to comply with rulings from the Chair at a meeting of the Lifelong Learning and Work Policy Board of Renfrewshire Council held on 5th June 2003 contrary to the provisions of the Code.

5.2 These councillors are elected members of Renfrewshire Council who have their principal offices in Paisley. They have all 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 they undertake to meet the requirements of the Code.

5.3 The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 and came into effect on 1st May 2003. The general principles set out in section 2 of the Code include the following -

"Leadership
You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the Council and its councillors in conducting public business.

Respect
You must respect all other councillors and all Council employees and the role they play, treating them with courtesy at all times."

Paragraph 3.14 of the Code provides -

"Conduct in the Chamber or in Committee
You must respect the chair, your colleagues, Council employees and any member of the public within the Chamber during Council or Committee meetings or other formal proceedings of the Council. You must comply with rulings from the chair in the conduct of the business of the Council."

5.4 Following the local government elections in May 2003 the constitution of the Council was made up of 21 Labour members (including Councillor Glen), 15 SNP members (including Councillors Mylet, Mackay and Mitchell), 3 Liberal Democrat members and 1 Conservative member. The Labour members have formed the Administration of the Council.

5.5 At the first meeting of the Council on 15th May 2003 following the elections, the Council - amongst other items - dealt with the decision-making structure and membership of committees (the main committees being known as Policy Boards within Renfrewshire Council). The meeting had before them a report by the Director of Corporate Services which said that, in appointing members to committees, the Council should apply the principle of party representation in a fair and consistent manner; whilst there was no statutory provision requiring party political balance on committees and sub-committees, COSLA had previously made it clear that it was important that Councils should apply the principle of party representation in a manner which could stand the test of scrutiny. The Administration then moved to maintain the Policy Board decision-making structure which had previously been established for the purpose of the discharge of the Council's functions and to allocate membership of the various Boards and Committees. The SNP moved as an amendment that the composition of the Boards be on a strictly proportionate basis as per COSLA recommendations. On a vote being taken 18 members voted for the amendment and 21 members voted for the motion which was accordingly carried. I have found that the minute of the meeting - as printed in Appendix 2 - is a correct record of the decisions of that meeting.

5.6 For the purpose of the constitution of the Lifelong Learning and Work Policy Board the Council agreed that this should comprise 20 members made up as follows:- 11 Labour members, 5 SNP members, 1 Liberal Democrat/Conservative member and 3 religious representatives. In this connection it should be noted that, since this Policy Board had responsibility for the functions of the Council as an education authority, then in terms of section 124 of the Local Government (Scotland) Act 1973 (as amended by section 31 of the Local Government etc. (Scotland) Act 1994) the Council are obliged to appoint 3 religious representatives all of whom have full voting powers.

5.7 At the first meeting of the Lifelong Learning and Work Policy Board held on 5th June 2003, proceedings of the Board were disrupted by Councillors Mylet, Mackay and Mitchell, in relation to item 3 dealing with Education into the 21st century and item 7 dealing with HMIE Reports. The meeting was adjourned for ten minutes after item 3 and finally adjourned during item 7; the remaining items on the agenda were subsequently dealt with at a reconvened meeting of the Board held on 16th June 2003. The minute of the first meeting is printed as Appendix 3 and the minute of the reconvened meeting is printed as Appendix 4.

5.8 Essentially the complaint is to the effect that Councillors Mylet, Mackay and Mitchell acted with disrespect to the Chair, fellow Councillors, Council employees and members of the public present within the Chamber during the meeting of the Board and that they failed to comply with rulings from Councillor Glen, as Chair, in the conduct of the business of the Board.

5.9 It is fair to say that those who attended the meeting and were interviewed in the course of my investigation were broadly in agreement on the general nature of the disruptions that took place at the Board meeting on 5th June. There were, however, divergent views on the extent and scale of the disruptions. There was no agreement between the members of the Labour and SNP groups as to the justification, if any, for the disturbances.

5.10 Prior to the start of the meeting, Mrs Lilian Belshaw, the Committee Clerk, noted that when Councillors Mylet, Mackay and Mitchell came into the meeting room they sat in the chairs reserved for Board members notwithstanding that none of them was a member of the Board. She advised them that it was normal practice for councillors who were not members of the Board to sit in the public seats within the Chamber and that they would not be permitted to participate in the meeting. She explained the situation to Councillor Glen, as Chair of the Board, who, after consideration, advised Councillors Mylet, Mackay and Mitchell that they could remain seated where they were but that they could not participate in any of the proceedings as they were not members of the Board. Councillors Mylet, Mackay and Mitchell did not respond to Councillor Glen's statement and Councillor Glen, for his part, took that to imply they had accepted what he had said.

5.11 I have found that Councillors Mylet, Mackay and Mitchell were not entitled to participate in the proceedings of the Board, as they were not members of the Board, and they were not otherwise authorised to participate in the proceedings.

5.12 The meeting progressed to item 3 Education into the 21st century which involved discussion of the funding of new schools through the Public Private Partnership initiative. In this connection the Board considered a report by Mrs Shelagh Rae, Director of Education and Leisure.

5.13 After a fairly constructive debate lasting some 13 minutes, Councillor Glen, seconded by Councillor M Macmillan (Labour), moved that the recommendations in the Director's report be approved and Councillor Noon (SNP), seconded by Councillor Martin (SNP), moved as an amendment that the reference to the Public Private Partnership for schools project should be changed to a "not for profit trust". After a request that the vote be taken by roll call the Chair instructed that this be done. Mrs Belshaw then began to take the roll call vote.

5.14 Prior to the vote being taken Councillors Mylet and Mackay started speaking loudly and Councillor Mitchell contributed to the voluble disruption and when the Clerk began to call the vote she found it difficult to continue with the vote taking. Councillor Mackay read repeatedly from a prepared statement which set out the SNP's views on the lack of proportionality in the composition of Policy Boards and on their disagreement with the funding of schools through the PPP initiative. This statement is printed as Appendix 6.

5.15 Councillors Mylet, Mackay and Mitchell left their seats, walked round the table at which they had been seated and advanced up the middle of the Chamber towards the Chair. A plan illustrating the layout of the Chamber is printed as Appendix 7. They stood some six to ten feet in front of the Chair's table and continued to speak loudly and volubly, notwithstanding that the Chair asked them to desist and to take their seats. Councillor Mackay continued to read the SNP's prepared statement and both Councillors Mylet and Mitchell continued to talk noisily. Councillor Mitchell has, due to a number of serious throat operations over the years, not been in a position to speak in recent times at Committee or Council meetings; he did, however, contribute to the voluble disruption of the meeting at this point. Around this time Councillor Mackay also cast a batch of copies of the SNP's statement on the table immediately in front of the Chair.

5.16 Councillors Mylet, Mackay and Mitchell each conceded when interviewed that the SNP Group had agreed, in advance, to the protest against what they perceived as an unfair allocation of committee seats by the Administration. The SNP Group considered that they were entitled to a further 3 seats on the Lifelong Learning Board and therefore they had decided that Councillors Mylet, Mackay and Mitchell should attend the meeting to articulate the protest at the committee allocation. Councillors Mylet, Mackay and Mitchell conceded that they had intended to disrupt proceedings and had appreciated that such conduct might amount to a contravention of the Councillors' Code of Conduct. Councillor Mylet also conceded that the disruption had been intimidating.

5.17 In Scotland, the position in law is that local authorities have discretion (other than in certain specific areas) as to how they allocate seats on committees and outside bodies and they are not required to allocate such seats in the same proportion that reflects the political balance of the Council as a whole. There are statutory provisions that deal with the allocation of seats on committees and outside bodies - namely sections 15 to 17 of the Local Government and Housing Act 1989 - but those sections have not been brought into force in Scotland.

5.18 The Administration have, in their view, endeavoured to allocate committee seats in a fair and consistent manner, which could stand the test of scrutiny and the complainants contest that. As already indicated, however, there are no statutory provisions dealing with this in Scotland.

5.19 In the case of the Lifelong Learning and Work Policy Board, Councillors Mylet, Mackay and Mitchell have contended that the SNP were entitled to 3 additional seats to reflect the political balance of the Council as a whole. Usually only elected councillors make up the membership of committees. In the case of the Lifelong Learning Board, however, there is a statutory obligation to appoint three persons to represent religious interests and these persons are full voting members of the Board. In allocating seats on a proportional basis reflecting overall political balance, it is normally assumed that if a political group has the majority of seats on the Council, it is entitled to the majority of seats on any committee (and indeed this is one of the key provisions of the 1989 Act). In the case of the Lifelong Learning Board, Labour have 11 members out of a total membership of 20 which (based on a membership of 20 seats) is a bare majority. Given the statutory requirement to appoint religious representatives, it is therefore concluded that the membership of Lifelong Learning Board has been fairly allocated.

5.20 Councillors Mylet, Mackay and Mitchell have also made it clear that the decision to make their views known at the Lifelong Learning Board on 5th June was a "one-off" and that there is no intention to repeat the disruption in the future.

5.21 I consider, however, that these submissions by the respondents are not a valid defence or proper justification of the conduct which I have found has contravened the Code. No apology for their behaviour has been offered by any of the respondents to the Council, such as at the meeting of the full Council held on 26th
June 2003 - see Appendix 5.

5.22 Although the persons who were present at the meeting and subsequently interviewed (see paragraph 4.8 and Appendix 1) varied to some extent as to the precise nature and scale of this first disruption, I have found -

(i) in the case of Councillor Mylet, that he, without being entitled or authorised to participate and contrary to the ruling of the Chair to desist, spoke loudly and volubly during item 3 of the meeting; that he physically disrupted proceedings further by leaving his seat, proceeding to the front of the Chair's table and continuing to address the meeting from that point in an intimidating manner contrary to the ruling of the Chair to resume his seat; and that he did not respect the Chair, Councillors and Council employees and members of the public present by so acting. As such he contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect and in paragraph 3.14 on Conduct in the Chamber or in Committee (see paragraph 5.3 earlier).

(ii) in the case of Councillor Mackay, that he, without being entitled or authorised to participate and contrary to the ruling of the Chair to desist, spoke loudly and volubly during item 3 of the meeting; that he physically disrupted proceedings further by leaving his seat, proceeding to the front of the Chair's table and continuing to address the meeting from that point in an intimidating manner contrary to the ruling of the Chair to resume his seat; and that he did not respect the Chair, Councillors and Council employees and members of the public present by so acting. As such he contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect and in paragraph 3.14 on Conduct in the Chamber or in Committee (see paragraph 5.3 earlier).

(iii) in the case of Councillor Mitchell, that he, without being entitled or authorised to participate and contrary to the ruling of the Chair to desist, contributed to the voluble disruption, during item 3 of the meeting; that he physically disrupted proceedings further by leaving his seat, proceeding to the front of the Chair's table and continuing to contribute orally to the meeting from that point in an intimidating manner contrary to the ruling of the Chair to resume his seat; and that he did not respect the Chair, Councillors and Council employees and members of the public present by so acting. As such he contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect and in paragraph 3.14 on Conduct in the Chamber or in Committee (see paragraph 5.3 earlier).

5.23 Eventually on item 3 of business the Chair took the decision to adjourn the meeting for 10 minutes and he ruled accordingly. After the adjournment the Board reconvened. Councillor Glen allowed Councillors Mylet, Mackay and Mitchell to re-occupy their seats at the meeting again on the understanding that they would not participate in any proceedings.

5.24 The meeting then progressed, without any difficulty, to item 7 which dealt with 3 reports by the Director of Education and Leisure regarding the progress made following HMIE Inspections of 3 schools, namely (a) Ralston Primary School (b) Moorpark Primary School and (c) Park Mains High School Moorpark Primary School is in Councillor Mylet's ward. At the start of the item dealing with Ralston Primary School, Councillor Mylet stood up and started to speak loudly again saying he was entitled to address the meeting and congratulated the Head Teacher of Moorpark Primary School. Councillor Mackay was also, at this point, voluble in supporting Councillor Mylet's right to speak. Councillor Mitchell made a very limited contribution to this second disruption. Councillor Glen called on Councillors Mylet and Mackay to desist from speaking. As Councillors Mylet and Mackay continued to speak Councillor Glen called on the Council Officer who was present to ask Councillor Mylet to leave the Chamber. Councillor Glen did so as he considered that Councillor Mylet was taking a more prominent part at this point in the disruption. Councillor Mylet refused to leave and Councillor Glen then decided to adjourn the meeting to be reconvened on another day. The reconvened meeting took place on 16th June 2003 when the remaining items were dealt with without difficulty. No SNP members attended the reconvened meeting.

5.25 In relation to the second disruption, I have found -

(i) in the case of Councillor Mylet, that he, without being entitled or authorised to participate and contrary to the ruling of the Chair to desist, spoke loudly and volubly on item 7 of business and that he did not respect the Chair, Councillors and Council employees and members of the public present by so acting. As such he contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect and in paragraph 3.14 on Conduct in the Chamber or in Committee (see paragraph 5.3 earlier).

(ii) in the case of Councillor Mackay, that he, without being entitled or authorised to participate and contrary to the ruling of the Chair to desist, made a voluble intrusion on item 7 of business and that he did not respect the Chair, Councillors and Council employees and members of the public present by so acting. As such he contravened the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect and in paragraph 3.14 on Conduct in the Chamber or in Committee (see paragraph 5.3 earlier).

(iii) in the case of Councillor Mitchell, that any intervention which he made was very limited and could not, by itself, reasonably be regarded as a contravention of the provisions of the Code.

5.26 It is of fundamental importance that democratically elected bodies should be permitted to carry out their business in a proper and orderly way and this is reflected in the Councillors' Code of Conduct. In the case of local authorities, their committee and Council meetings are (other than in limited cases) also open to the public so that they can be informed as to the business and decisions of these authorities. The disruption of Council proceedings is an interference with the democratic process, particularly where the disruption is at the hands of persons who have themselves been elected to office and who, having signed a declaration to meet the requirements of the Councillors' Code of Conduct, have nevertheless deliberately contravened the provisions of the Code requiring good order in the Council Chamber.

5.27 Accordingly I have concluded -

(i) that, having regard to the findings in part 5 and in particular paragraphs 5.22(i) and 5.25(i) of this report, Councillor Mylet has contravened the Councillors' Code of Conduct.

(ii) that, having regard to the findings in part 5 and in particular paragraphs 5.22(ii) and 5.25(ii) of this report, Councillor Mackay has contravened the Councillors' Code of Conduct.

(iii) that, having regard to the findings in part 5 and in particular paragraph 5.22(iii) of this report, Councillor Mitchell has contravened the Councillors' Code of Conduct.

D Stuart Allan
Chief Investigating Officer
19th December 2003
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