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Note Of Decision Web Version

Complaint nos. LA/E/376, LA/Fi/376, LA/PK/376 and LA/WL/376 concerning an alleged contravention of the Councillors' Code of Conduct by Councillors Andrew Burns, Ian Murray, Lawrence Marshall and George Grubb of the City of Edinburgh Council; Councillors John Cameron, Alice McGarry, Mike Rumney and Antony Martin of Fife Council; Councillor Robert Scott of Perth and Kinross Council, and Councillor David King of West Lothian Council ("the respondents"). The respondents are also members of the Forth Estuary Transport Authority (FETA).

1. Complaint numbers LA/E/376, LA/Fi/376, LA/PK/376 and LA/WL/376 alleged a contravention of the Councillors' Code of Conduct ("the Code") by the above named Councillors ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, section 1 relating to Guidance on the Code, section 2 relating to the Key Principles, section 4 relating to Registration of Interests and section 5 relating to Declaration of Interest.

3. The person complaining ("the complainant") alleged that during the meeting of FETA on 25 November 2005, Councillor Andrew Burns should not have participated in and voted on FETA's proposals for an Integrated Transport Initiative because of a potential conflict of interest due to his position as a director of TIE Ltd. He also contended that the other members of FETA who were present at the meeting took no action despite being aware of this, and should have ordered Councillor Burns to take no part in the vote. He further alleged that the respondents took a decision in favour of the Integrated Transport Initiative despite Scottish Executive guidance relating to public consultation and alternative transport measures not being put in place. He considered that under section 6 of the Human Rights Act 1998 he had been denied the right to have his rights and obligations determined before an independent and impartial tribunal.

4. I was satisfied that FETA was established by the Forth Estuary Transport Authority Order 2002 and is a Joint Board composed of members of the four local authorities in the region of the Forth Road Bridge. Under paragraph 5.10 of the Code of Conduct, a Councillor's membership of Joint Boards which are composed exclusively of Councillors does not raise any declaration of interest in regard to Council business in relation to that membership.

5. Councillor Andrew Burns, in addition to being a member of the Joint Board, has also been appointed by his authority to serve as a director of TIE Ltd which is an arms length, private limited company set up to deliver transport initiatives for the City of Edinburgh. The complainant considered that some of the provisions of the Integrated Transport Initiative being proposed by FETA could fit in with initiatives being considered by TIE Ltd. Councillor Burns has duly registered his non-financial interest as a director of TIE Ltd and also declared that interest at the meeting on 25 November 2005. As far as the Code is concerned, the principal test that has to be applied is whether a reasonable member of the public, knowing the relevant facts, would think that Councillor Burns' interest as a director of TIE Ltd could improperly or unduly influence his position in considering the matter of the Integrated Transport Initiative proposals. At the end of the day, the debate on the ITI proposals involved major strategic and policy considerations of no little controversy and these considerations will - no doubt - continue to be addressed in the future. The members of the Joint Board - representing their four constituent authorities - should be able to participate fully in these key decisions which will have such an impact on their communities, unless there is good reason why they should not. As far as the debate on 25 November 2005 is concerned, I have no hesitation in saying that any interest of Councillor Burns as a director of TIE Ltd could not be seen by any reasonable member of the public to have any bearing on the debate or any improper or undue influence on Councillor Burns' position which he adopted in the debate. Any conflicting interests of TIE were purely conjectural and speculative.

Furthermore, given the terms of the Standards Commission's Dispensations Note, Councillor Burns was entitled to participate in the debate on the ITI proposals.

I, therefore, find that there was no breach of the Code of Conduct by Councillor Andrew Burns in participating in the meeting of FETA on 25 November 2005.

6. It is worth observing that there may be circumstances in which it would be reasonable to expect that a councillor - who has been appointed by his or her local authority as a director of a company belonging to the authority - should declare an interest and withdraw from participating in discussion on business at a joint board meeting where the company may have a material interest. This will be dependant on the circumstances obtaining in relation to that specific item of business (and does not apply in this case).

7. The complaint against the other named members of FETA was dependant on the allegation that Councillor Burns was wrong to have participated in the FETA meeting of 25 November 2005; the complainant contended that the other members should have prevented Councillor Burns from participating in the meeting.

8. As I found that Councillor Burns had not breached the Code, it followed that the complaint against the other respondents had no foundation and fell to be dismissed. I formally found there was no breach of the Code of Conduct by Councillors Ian Murray, Lawrence Marshall and George Grubb of the City of Edinburgh Council; John Cameron, Alice McGarry, Mike Rumney and Antony Martin of Fife Council; Robert Scott of Perth and Kinross Council, and David King of West Lothian Council.

9. Again, for the avoidance of doubt, I should make it clear that even if a councillor does fail to declare an interest and withdraw from a meeting when he or she should have (which I emphasize is not the case here) it does not necessarily follow that his or her fellow councillors would also be in breach of the Code because of a perceived failure to do anything about it.

10. Having considered the information that arose from my investigation, I concluded that, Councillors Andrew Burns, Ian Murray, Lawrence Marshall and George Grubb of the City of Edinburgh Council; Councillors John Cameron, Alice McGarry, Mike Rumney and Antony Martin of Fife Council; Councillor Robert Scott of Perth and Kinross Council, and Councillor David King of West Lothian Council had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
30 March 2006