Decision of the Hearing Panel of the Commission following a Hearing held at the Glynhill Hotel, Renfrew, on 15 and 16 August 2005.

• Panel Members
• The Complaint
• Joint Statement of Facts
• European Convention on Human Rights (Article 10)
• The Decision
• Sanction
• Reasons for Decision and Sanction
• Consideration of European Convention on Human Rights (Article 10)
• Conclusion

Panel Members:

Mrs Wendy Goldstraw, Chairman
Mr Peter Donaldson
Mr Okain McLennan

In respect of a Report by D Stuart Allan, Chief Investigating Officer ("the CIO") further to Complaint No. LA/R/44 ("the Complaint") concerning an alleged contravention of the Councillors' Code of Conduct ("the Code") by Councillor Iain Nicolson of Renfrewshire Council ("the Respondent").

The Respondent declined to attend the hearing.

The Complaint

The Complainant was Mr Tom Scholes, Chief Executive of Renfrewshire Council. The Complainant alleges that the Respondent breached the provisions of the Councillors' Code of Conduct set out in section 2 on Leadership and Respect, paragraphs 3.2 and 3.4 on Relationship with Council Employees and paragraphs 2 and 20 of Annex C on Protocol for Relations between Councillors and Employees.

Section 2 Leadership states:
" You have a duty to promote and support the principles of the Code of Conduct 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."

Section 2 Respect states:
" You must respect all other councillors and all Council employees and the role they play, treating them with courtesy at all times."

Relationship with Council Employees

Para 3.2: states
"You must respect all Council employees and the role they play and treat them with courtesy at all times. It is expected that employees will show the same consideration in return."

Para 3.4 states:
"You must follow the Protocol for Relations between Councillors and Employees attached at Annex C. A breach of the Protocol will be considered a breach of this Code."

Protocol for Relations between Councillors and Employees Annex C

Para 2 states:
"Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take an unfair advantage of their position."

Para 20 states:
"Councillors should not raise matters relating to the conduct or capability of employees in public. Employees must accord to councillors the respect and courtesy due to them in their various roles. There are provisions in the Code of Conduct for Employees about speaking in public and employees should observe them."

The CIO's Report was submitted to the Commission in accordance with Section 14.2 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the Act"). The Code came into effect on 01 May 2003 and the Commission accordingly had jurisdiction to hear the Complaint, as the alleged breaches of the Code occurred after the Code came into operation.

The CIO's findings that Councillor Nicolson contravened the provisions of the Code relate to the allegation that, following the appointment by open competition of two candidates to the posts of Research Officer, Councillor Nicolson breached the Code by making derogatory statements in public about the complainant and other Council employees by speaking to newspapers which reported his statements.

Joint Statement of Facts

There was no joint statement of facts agreed between the CIO and the Respondent.

European Convention on Human Rights (Article 10)

The Respondent in writing to the CIO claimed that his views were political expressions and as such, were protected by the European Convention on Human Rights, Article 10.

Article 10 (freedom of expression) provides as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The Councillors Code of Conduct is compliant, compatible and consistent with the provisions of the European Convention on Human Rights.

The Respondent did not raise any issues relating to the European Convention on Human Rights in his written submission to the Hearing Panel.

The Decision

The Hearing Panel considered all the evidence, submissions given in writing and orally at the hearing, and found as follows:

1. The Councillors' Code of Conduct applied to the Respondent.
2. The Respondent did make derogatory statements in public about the Complainant and other Council employees by speaking to journalists who reported his statements in their newspapers.
3. The Respondent did contravene the Councillors' Code of Conduct as set out in Section 2 (Leadership and Respect), paragraphs 3.2 and 3.4 (Relationship with Council Employees), and paragraphs 2 and 20 of Annex C (Protocol for Relations between Councillors and Employees).

Sanction

The Panel decided to suspend for one year Councillor Nicolson's entitlement to attend meetings of Renfrewshire Council and of any committee and sub-committee thereof and of any other body of which he is a representative or nominee of the Council. This sanction is made under the terms of the Ethical Standards in Public Life etc (Scotland) Act 2000 Section 19 (1) (c). The date on which the period of suspension will commence will be 29 August 2005.

Reasons for Decision and Sanctions

In reaching their decisions, the Panel had taken into account:

1. That the actions of the Respondent constituted serious breaches of the Code.

2. The importance of high standards of conduct as outlined in the Ethical Standards in Public Life etc. (Scotland) Act 2000. The Panel concluded that those serious breaches of the Code brought Renfrewshire Council and local government generally, into disrepute.

3. The report submitted by the CIO was fully corroborated by the witnesses who gave evidence to the Panel. In his written statement, the Respondent re-iterated a number of allegations concerning political bias by Council employees in relation to the appointment of two research officers. That written statement was considered in full by the Panel. There was no evidence to support the allegations he made.

4. The allegations made damaged the reputations of new appointees to the Council staff, and existing Council employees. The publication of these allegations caused them varying degrees of distress.

5. Also in his statement, the Respondent refused to accept the conclusions reached in the CIO's report, did not acknowledge that he had breached the Code nor made any apology for his actions.

Consideration of European Convention on Human Rights (Article 10)

Having reached the decision that the Respondent had breached the stated sections of the Code, the Panel considered his rights under Article 10 (1) of the European Convention on Human Rights. The Panel concluded that his right to freedom of expression under Article 10(1) was restricted under Article 10 (2) in that his statements impugned the reputation and rights of others.

While the panel acknowledged that there was a political background to the respondent's statements, the comments were not made about his political opponents. Instead, the comments were directed at employees of the Council and alleged that they, the employees, had shown political bias in carrying out their duties. Moreover, the statements implied that the new appointees were not chosen on merit. There was no evidence to substantiate those allegations. The Panel concluded that there was no legitimate basis for the statements made nor the language used. The Panel also concluded that those employees were justified in considering that their reputations had indeed been adversely been affected.

The Panel acknowledged the Respondent's right of political expression under article 10(1) but considered that it was justified in interfering with those rights under Article 10(2) for the reasons outlined above.

Conclusion

The panel drew the Respondent's attention to Section 22 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 which details the Right of Appeal in respect of this Decision.