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Complaint no. LA/DG/696 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Graham Bell, Ian Carruthers, Gillian Dykes, Peter Duncan, Patsy Gilroy, Roger Grant, Jack Groom, Ivor Hyslop, Ian Lindsay, Graham Nicol and former Councillor Bruce Hodgson of Dumfries and Galloway Council

1. Complaint number LA/DG/696 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillors Graham Bell, Ian Carruthers, Gillian Dykes, Peter Duncan, Patsy Gilroy, Roger Grant, Jack Groom, Ivor Hyslop, Ian Lindsay, Graham Nicol and former Councillor Bruce Hodgson (“the respondents”).

2. The person complaining (“the complainant”) alleged that the respondents had contravened the Code, in particular, that Councillor Peter Duncan had contravened paragraphs 5.15, 7.3 and 7.8 of the Code and that Councillor Gilroy had contravened paragraphs 5.4, 5.15 and 7.8. It was also alleged that the remaining nine councillors had contravened paragraphs 7.2 and 7.3 of the Code of Conduct.

3. The complainant’s main allegation was that a party whip had been applied to ensure that the eight Conservative members present at the meeting of the Planning Committee on 15 January 2008 voted to approve a planning application because the applicant was an influential supporter of the party and a family friend of the Convener of the Council (Councillor Gilroy). The complainant considered that the eight councillors involved had breached paragraphs 7.2 and 7.3 of the Code. The eight councillors were Graham Bell, Ian Carruthers, Gillian Dykes, Roger Grant, Jack Groom, Ivor Hyslop, Ian Lindsay and Graham Nicol.

4. The applicant was, apparently, chairman of the Galloway Branch of the Conservative party some 20 years ago. The majority of the respondents stated that they did not know the applicant. Two of the respondents (Councillors Grant and Nicol) stated that they knew him, but only as an acquaintance and not as a close friend.

5. Councillor Gilroy acknowledged that the applicant was a personal friend of her family. She was aware that her friendship created a declarable interest and she advised those present at the members’ briefing meeting on 12 October 2007 of her interest before the Area Manager gave a brief overview of the planning applications. When the item came before the Stewartry Area Committee on 17 October 2007 she declared her interest, left the room and took no part in the discussion and voting. Councillor Gilroy was not present at the Planning Committee meeting on 15 January 2008.

6. Councillor Duncan stated that, in the week previous to the Area Committee meeting, he received a donation from the applicant (along with many others) in support of his party’s campaign for the general election that was anticipated to take place. In view of this he declared an interest at the Area Committee meeting and took no part in the consideration of the application. As he is not a member of the Planning Committee, he was not involved in the consideration of the application at the meeting on 15 January 2008.

7. The complainant cited a number of separate incidents in support of her allegation that a party whip had been applied. The first incident was alleged to have occurred outside the Council offices on 14 January 2008 (the day before the Planning Committee meeting). The complainant stated that Councillor Davidson who had been present told her that the Leader of the Council (Councillor Hyslop) took a telephone call from someone named Kennedy (which is the name of the applicant) and Councillor Duncan, who had also been present, said “that one should go through.”

8. Councillor Hyslop acknowledged that he received a telephone call from the applicant on 14 January 2008 to which he gave his standard reply that he would consider the application on its merits having regard to all of the relevant information. Councillor Duncan did not recall making the comment attributed to him and stated that, as Business Manager for the Conservative Group, he deals with several matters to which such a response could have been appropriate.

9. Even if Councillor Duncan had made the comment attributed to him I did not consider that he had been necessarily advocating that the application ought to be approved. In my view the comment could equally have been construed as meaning that the application was likely to be approved. I considered that the comment was somewhat ambiguous and relatively insignificant and as such it could not, on any reasonable interpretation, be regarded as constituting improper conduct or an attempt to organise support or advocate a particular recommendation on the application.

10. The complainant cited a second incident which she considered supported her assertion that Conservative members had acted as a group to support the application. This related to the fact that, at the members’ briefing meeting on 12 October 2007, Councillor Gilroy expressed a view that Councillor Hodgson (who, hitherto, had a poor attendance record) should attend the Area Committee meeting. The complainant was suspicious of Councillor Gilroy’s motives for advocating Councillor Hodgson’s attendance when the Committee had no history of inquorcy.

11. Councillor Gilroy stated that she thought it would be good if Councillor Hodgson could be present at this particular meeting as there were a number of extremely important non-planning items on the agenda affecting his ward. She did not contact Councillor Hodgson but, in the event, he attended the meeting. The Area Manager was present at the members’ briefing meeting and he confirmed that Councillor Gilroy had been keen for Councillor Hodgson to attend the Area Committee meeting because of the extensive business on the agenda. He was given no instruction to contact Councillor Hodgson, did not do so and was unaware of anyone else having done so.

12. It was relevant to point out that the composition of the Stewartry Area Committee (like all of the Council’s Area Committees) is based on geographical boundaries rather than on political affiliation or proportionality. After Councillors Duncan and Gilroy had declared an interest in the application and left the room there were eight members present and eligible to vote comprising three SNP, two Conservative, two Independent and one Labour councillor. The motion to recommend the application to the main Planning Committee for approval was carried by five votes to three. Significantly, while Councillor Hodgson voted in favour of the motion the other Conservative councillor present (Councillor Blake) voted against it.

13. I considered this particular matter carefully and I did not regard Councillor Gilroy’s apparent keenness for Councillor Hodgson to be present at the Area Committee meeting on 17 October 2007 as being in any way improper, suspicious or indicative of an attempt by her to secure Councillor Hodgson’s presence for the purpose of supporting the application. While Councillor Hodgson did, in fact, support the application the other Conservative councillor present opposed it which, in my view, did not lend weight to the view that support for the application had been organised on a party group basis.

14. The third incident referred to by the complainant occurred just after the vote on the application had been taken at the Planning Committee meeting on 15 January 2008. As Councillor Groom was leaving the meeting room Councillor Prentice said to him, as an aside, “did I hear the crack of a whip,” to which Councillor Groom replied “you did indeed my friend, you did indeed” or words to that effect. Councillor Prentice stated that his question was “a throw away” remark, made in a jovial spirit and should not be taken at face value or seriously.

15. Councillor Groom’s explanation for his response was that he thought that Councillor Prentice was alluding to him (Councillor Prentice) taking instructions during the meeting from the complainant (his Group Leader) who, although not a member of the Planning Committee, was present in the meeting room and spoke from time to time to Councillor Prentice. Councillor Groom described his response as flippant.

16. The essence of the explanations from Councillors Prentice and Groom was that it was a light hearted exchange, based on a misunderstanding, which should not be taken seriously or at face value. While I considered Councillor Groom’s response to Councillor Prentice to have been ill-advised, having regard to the explanations given by both Councillors at interview, I did not consider that it was intended as, or that it could be taken as evidence of, an admission that a Conservative party whip had been applied for the purpose of securing the approval of the application.

17. The respondents’ collective response to the allegation that they voted to approve the application in response to a party group whip was that they never discuss individual planning applications as a political group, that this particular application was not discussed by them outwith the formal Council Committees and that they were not approached by fellow members to support the application. Councillor Hyslop, who is the Leader of the Conservative group and of the Council, stated that he had made it clear to his colleagues that planning matters were not to be discussed at meetings of the Conservative group.

18. In considering the complainant’s central allegation that a Conservative group whip was applied to ensure the approval of the application it is relevant to refer to the context in which all planning applications are assessed. The Council’s structure plan was approved in 1999 and there is a feeling among some councillors, particularly those who are newly elected, that the Council’s planning policies and the manner in which they are interpreted on occasions by the Planning Department are unnecessarily restrictive and stifle development which the area requires. On occasions this leads to councillors acting against the recommendations of the planning officers, as happened in relation to this particular application. As evidence that it is not unusual for councillors to go against the recommendations of planning officers, the Group Manager, Corporate Support and Governance, produced a list of over 20 applications which had been approved in the preceding 10 months even though they had been recommended for refusal by the planning department. The complainant’s strong and genuinely held view is that planning applications should continue to be assessed in accordance with the Council’s current planning policies until such times as these are formally reviewed and changed.

19. The complainant considered that Councillor Hodgson’s pattern of attendance at the Stewartry Area Committee and “his marked preference for the Orroland application” constituted a breach of paragraph 7.3 of the Code. I did not consider that there was anything improper about Councillor Hodgson’s conduct at the Area Committee meeting on 17 October 2007. He was obviously in favour of the application as he proposed the motion in support of it. However, the mere expression of a strong preference for an application is not, of itself, indicative of improper conduct and no other evidence was produced in support of the complainant’s allegation of impropriety. In relation to this aspect of the complaint, I found that Councillor Hodgson had not breached paragraph 7.3 of the Code.

20. I gave careful consideration to the complainant’s central allegation that a party whip had been applied to Conservative group councillors to ensure that the application was approved, including the separate incidents which the complainant cited in support of her allegation. While it was a fact that all eight Conservative members present at the Planning Committee meeting on 15 January 2008 voted in support of the application I found no evidence during the course of my enquiries that this occurred as a result of a pre-determined plan or instruction to vote as a party group. Had it been the group’s intention to act collectively to ensure that the application was approved it would, in my view, have taken steps from the outset of the approval process to achieve this outcome by ensuring that the two Conservative members present at the Stewartry Area Committee meeting on 17 October 2007 both supported the application. I considered that the fact that one of the two members (Councillor Blake) voted against the application undermined the allegation that the Conservative members acted as a group.

21. Similarly, for the reasons outlined above, I did not consider that the complainant’s allegations about Councillor Duncan’s comment when Councillor Hyslop took a telephone call from the applicant on 14 January 2008 (paragraphs 7 to 9 above), Councillor Gilroy’s keenness for Councillor Hodgson to attend the Stewartry Area Committee on 17 October 2007 (paragraphs 10 to 13 above), or Councillor Groom’s response to Councillor Prentice (paragraphs 14 to 16 above) constituted persuasive evidence that a party group whip had been imposed. Having regard to all of these matters I concluded that neither Councillor Hodgson, who voted in favour of the application at the Stewartry Area Committee meeting on 17 October 2007, or the eight Conservative councillors who voted in favour of the application at the Planning Committee meeting on 15 January 2008, did so as a result of a party group whip being imposed to ensure their support for the application. Accordingly, I found that the nine councillors involved had not breached paragraphs 7.2 or 7.3 of the Code. I also concluded that Councillors Duncan and Gilroy did not organise support for the application, lobby other councillors or act as an advocate to promote support for the application and that Councillor Duncan did not act improperly. Accordingly, I found that Councillor Gilroy had not breached paragraph 7.8 of the Code and that Councillor Duncan had not breached paragraphs 7.3 or 7.8 of the Code.

22. The complainant also alleged that Councillor Gilroy ought to have declared her interest in the application at the members’ briefing meeting held on 12 October 2007 and that it would have been prudent for her to have said nothing in respect of seeking Councillor Hodgson’s presence at the Area Committee meeting. She considered that Councillor Gilroy’s conduct in relation to these matters represented a breach of paragraph 5.4 of the Code.

23. As explained in paragraph 5 above, Councillor Gilroy did, in fact, declare her interest in the application at the outset of the members’ briefing meeting (which was a procedural meeting only and not to discuss the merits of individual applications). She also declared her interest at the Area Committee meeting and took no part in the consideration and voting on the application. I considered that Councillor Gilroy acted in a transparent manner at both the members’ briefing meeting and the Area Committee meeting.  Having regard to this, and to her explanation for her desire for Councillor Hodgson to attend the Area Committee meeting (as set out in paragraph 11 above), I found that Councillor Gilroy had not breached paragraph 5.4 of the Code.

24. Councillors Gilroy and Duncan were both alleged to have breached paragraph 5.15 of the Code by failing to explain the nature of their interest when they made declarations at the Stewartry Area Committee meeting on 20 October 2007. Both Councillors acknowledged that they did not specify the nature of their interest (whether Councillor Duncan’s interest was a declarable one is open to question) and explained that this was because it is not the practice of the Council to require them to do so. The Group Manager, Corporate Support and Governance, indicated that, hitherto, he had not enforced the requirement in paragraph 5.15 of the Code for sufficient information to be given by councillors who declare an interest to enable those at the meeting to understand the nature of the interest as he considered that, in certain circumstances, it could influence the decision to be made. He has undertaken to review this policy. While it would have been helpful for Councillors Gilroy and Duncan to have made a fuller declaration, I did not consider any failing to do so to be sufficiently material in the whole circumstances when they did, in fact, make formal declarations of interest and retired from the Committee room. I do, however, make a recommendation to the Council in this connection at paragraph 28 below.

25. The final aspect of the complaint related to the manner in which Councillor Roger Grant was alleged to have acted in relation to the application when chairing the Planning Committee meeting on 15 January 2008. The complainant was of the view that, before inviting the Committee to vote on the application, Councillor Grant made a strong case for the application citing factors which, in the complainant’s view, were not relevant planning issues. She described his action as inappropriate and partisan and a breach of section 7 of the Code.

26. It was clear from the evidence of several persons who attended the Planning Committee meeting that Councillor Grant took the opportunity to express his support for the application before he invited members to vote on it although there are varying views about the degree to which he did so. Councillor Grant’s view was that he summarised a number of issues which had been raised during the consideration of the application, that his decision to support it was influenced by the views expressed by the Stewartry Area Committee and by those put forward at the Planning Committee meeting in addition to his own view that the development of tourism is essential for the economic well-being of the region.

27. Councillor Hyslop accepted that Councillor Grant spent some time summing up but considered that this may have been because he was going against the recommendation of officers and felt that he had to give a full explanation of his position. I carefully considered this element of the complaint and having regard, in particular, to the fact that Councillor Grant had only recently taken over the chair of the Planning Committee and had, therefore, little previous experience of this role, and to the fact that, as a member of the Committee, he was perfectly entitled to express a reasoned opinion on the merits of the application, I did not consider that his conduct could reasonably be taken to amount to a breach of the Code and I found that he had not breached section 7 the Code.

Additional Comment

28. This case raised the issue that, when declaring an interest, a councillor, in making the declaration, should refer to the business item in question and be sufficiently informative in making his or her declaration to enable those at the meeting to understand the nature of the interest (although no detailed description is required). It had not been the practice within the Council to call for the councillor to give such information but the Group Manager, Corporate Support and Governance agreed to review the current policy and practice. I commended that approach and invited the Council to address this issue as a matter of priority.

Summary of Conclusions

29. Having considered the information that arose from my investigation, I concluded that Councillors Graham Bell, Ian Carruthers, Gillian Dykes, Peter Duncan, Patsy Gilroy, Roger Grant, Jack Groom, Ivor Hyslop, Ian Lindsay, Graham Nicol and former Councillor Bruce Hodgson had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

15 July 2008