Information on Investigations

Which Sector? > Local Authorities>Edinburgh Council> LA/E/505

Note Of Decision Web Version

Complaint no. LA/E/505 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Shami Khan of City of Edinburgh Council

1. Complaint number LA/E/505 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Shami Khan ("the respondent").

2. It was alleged that the respondent had contravened the Code and in particular the key principles in section 2 of the Code relating to Respect and Integrity and section 5 of the Code relating to Declaration of Interests.

3. The complainant alleged that the respondent breached the Code of Conduct by:

(a) bringing into disrepute the standing and integrity of the Lothian and Borders Police Force by alleging that the service was tainted by institutional racism;

(b) showing scant regard for the standing and integrity of the Chief Constable and other serving members of the Lothian and Borders Police Board by pursuing an allegation critical of them in the press, rather than through official channels;

(d) failing to declare an interest in business being discussed at the meeting held on 11 September 2006.

4. In the early hours of Friday 21 July 2006 the respondent's son was arrested after an incident at an Edinburgh night-club. At the time of the investigation that matter was still being processed through the criminal justice system. The respondent was clearly concerned at this turn of events and sought to assist his son and his friends as best he could. This involved visiting his son at the St. Leonard's Police Station where he had been detained. It was clearly a stressful experience for all those involved.

5. On the afternoon of Friday 21 July following the incident the respondent was contacted by a reporter of the 'Edinburgh Evening News' and asked for a response. That exchange formed the basis for an article published in the 'Evening News' on Saturday 22 July in which the respondent was quoted as saying: 'I'm not happy with the police. This has being going on for Asian People for too long. There is institutional racism involved.' This prompted a public debate about racism and the Lothian and Borders Police, with a large number of individual members of the public contacting the Evening News website, as well as prompting a contribution to that newspaper from the Convener of the Lothian and Borders Joint Police Board.

6.The respondent claimed that he did not assert that the Lothian and Borders Police Force were 'institutionally racist'. He claimed that he was shocked by the terms of the article and that he sought to have it retracted. The respondent claimed that any comments he made about racism were directed at society in general and were not aimed specifically at the Lothian and Borders Police Force. As a result of the controversy the Diversity Lay Advisers to the Joint Police Board were asked to investigate.

7. The editor of the 'Edinburgh Evening News' was equally firm in his view that the comments attributed to the respondent in his newspaper were accurately recorded and reported. He carefully described the process by which they were obtained. He also confirmed that, in response to the suggestion contained in the report subsequently prepared by the Diversity Lay Adviser that an apology be sought from the newspaper, the respondent had confirmed that he had no reservations about the terms of the original report carried in the 'Evening News' on 22 July 2006. For the avoidance of further controversy the conversation in which the confirmation was given, had, as he explained, been tape recorded. Given that the response received by the Diversity Lay Adviser from the respondent contradicted the terms of the article in the 'Evening News' it was surprising that before recommending that an apology be secured, the Lay Adviser did not at least, first seek the views of the newspaper.

8. There were clearly points of conflict between the respondent and the 'Evening News' in their respective accounts of the detail of the exchanges which took place between them. Ultimately, however, it was not possible to resolve these differences, not least because the 'Evening News' did not feel able to accede to my request that they disclosed their sources, and made available the originals of reporters notebooks and the tape recording referred to.

9. To a large extent the original controversy was rehearsed, again inconclusively, at the Joint Board meeting of 11 September 2006.

10.The scope, specification and 'target audience' of the issue which the respondent originally raised could not in this case be conclusively defined. Despite the complainant's interpretation, a literal and disjunctive reading of the words attributed to him in the 'Edinburgh Evening News' on July 22 was conceivably not a direct criticism of the Lothian and Borders Police force. The respondent also attracted a degree of criticism from the Convener of the Police Board by allowing a 'clash of responsibilities' arising from his roles as parent and as a member of the police board to permeate the controversy. That said, even if clumsily raised, racism is clearly and quite properly a matter of concern to those - such as the respondent - who are engaged in public life. That in turn raised issues of freedom of expression which are of particular importance to elected representatives. In these circumstances, I had reservations that those provisions in the Code which are directed at the maintenance of proper standards of respect and decorum in the conduct of public affairs were relevant to the circumstances of this particular case. It is clearly not the purpose of the Code to constrain debate on issues of public interest, no matter how controversial and no matter how unwittingly directed, and with which others, whether officers, political peers or members of the public might disagree.

11. The respondent also attracted criticism from the complainant by raising his concerns through the medium of the press rather than by the use of a more formal complaints procedure. Although an experienced member might be expected to follow a more conventional - and circumspect - process in the pursuit of a grievance, the utilisation of a different route did not in my view constitute a breach of the Code. In these circumstances I found that the complaints set out in paragraphs 3(a), (b) and (c) had not been made out.

12. It was also alleged that by his participation in the discussion and voting on item 11 at the Joint Police Board meeting on 11 September 2006 the respondent contravened section 5 of the Code dealing with Declarations of Interest.

13. Although no formal structure to the debate could have been anticipated by, say, the prior lodging of written motions, it was anticipated that the respondent would be required to clarify and confirm his position in relation to the existence or otherwise of racism in the Lothian and Borders Police Force. As might be expected the debate which ensued was robust. Both the respondent and the Convener expressed surprise at the vehemence of the criticisms made of the respondent who felt that he was under considerable pressure to justify himself. He was clearly taken aback at the strength of feeling expressed, and the tabling of the motion recommending a referral to my office in terms of the ethical standards framework also took him by surprise. Given that the matter concerning his son was the subject of a separate process outwith his control, and indeed that of the Board, he did not feel that he could reasonably be seen to influence that issue. In the event he did not seek the clerk's advice and participated fully in the debate and voted in the division.

14. Since the deliberations of the Board focussed on an exploration of the respondent's actions and were the subject of direct challenge, he could hardly have been expected not to participate in the debate. On reflection, however, both the clerk and the Convener expressed the view that it might have been prudent for him to withdraw prior to the division. While members should be alert to any potential conflict of interest, the defence of his position - certainly at this stage - did not, in my view, amount to a declarable non-financial interest which required withdrawal. The amendment was carried by ten votes to six and the motion defeated. On a numerical basis the participation of the respondent was not crucial.

15. The interest under consideration in this case might be regarded broadly as the avoidance of a full inquiry into the propriety of the respondent's behaviour in this whole matter, and the projected effect of such an inquiry on his reputation. Having argued for a positive view to be taken of his actions in the debate at the meeting of 11 September, it might have been regarded as simply illogical not to cast a vote in favour of a supporting amendment.
Given that the controversy was largely played out in the public gaze, there was no lack of transparency attendant of this issue, which is of course a principle underlying the requirements of the Code in relation to the declaration of interests.

In the final analysis the complaint turned on a proper consideration of the terms of the motion and the amendment and whether they disclosed a sufficiently proximate interest for the purposes of the Code. Essentially the motion sought to invoke the investigatory mechanism established in terms of the Ethical Standards in Public Life etc. (Scotland) Act 2000. Without the benefit of any investigation the assumption that there would have been an outcome critical of the respondent could at best be described as speculative. I therefore doubted if, at that moment in time, there was an interest well enough developed to be the subject of a declaration in terms of the Code. In any event by his participation in the division the respondent could not – as is self-evident from the lodging of the complaints now under consideration – avoid scrutiny in terms of the 2000 Act. In these circumstances neither did I find that the complaint set out in paragraphs 3(d) had been made out.

16. Having considered the information that arose from my investigation, I concluded that, Councillor Shami Khan had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
28 February 2007