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Complaint no. LA/Fa/157 Concerning an alleged contravention of The Councillors' Code of Conduct by Councillors Linda Gow, Dennis Goldie, Gerald Goldie, Charles MacDonald, Khalid Hamid, Patrick Reid, William Anderson and Reverend Councillor John Jenkinson of Falkirk Council

1. Complaint number LA/Fa/157 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Linda Gow, Dennis Goldie, Gerald Goldie, Charles MacDonald, Khalid Hamid, Patrick Reid, William Anderson and Reverend Councillor John Jenkinson ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, section 2 in relation to Duty, Selflessness, Integrity, Objectivity, Accountability and Stewardship, Openness, Honesty, Leadership and Respect.

3. The person complaining ("the complainant"), Councillor David Alexander, SNP Leader of Falkirk Council, alleged that the eight Councillors pursued a course of conduct which had the effect of ensuring the continuance in office of one of their colleagues who had been absent from a number of prior Council meetings, without approval, and was liable in terms of section 35 of the Local Government (Scotland) Act 1973 to cease to be a member of the Council. They requisitioned a special meeting of the Council, with the underlying aim of affording a further opportunity to their colleague to attend a Council meeting before the statutory provisions in relation to non-attendance came into force. A misuse of Council resources was involved as a result, in having an unnecessary meeting.

4. Councillors Linda Gow, Dennis Goldie, Gerald Goldie, Charles MacDonald, Khalid Hamid, Patrick Reid, William Anderson and Reverend Councillor John Jenkinson are elected members of Falkirk Council. With the exception of Councillor Anderson, they are all current members of the Labour Group on the Council and are in opposition to the current Council Administration lead by the complainant. Councillor Anderson was a member of the Labour Group at the time of the incident complained of but now sits as an Independent member of the Council.

5. In reply, the respondents alleged that the complaint was submitted by a political opponent whose own actions in relation to this matter were questionable and who had misused Council resources. They were entitled to take the action they did in requisitioning a meeting, sought legal advice on same and the matter proceeded in terms of Council Standing Orders. They denied any breach of the Code.

6. Towards the end of 2004, the attendance record of Councillor Alexander Fowler, another Labour Party Member of the Council, came under scrutiny due to his non- attendance at Council meetings since 18 June 2004. Section 35 of the Local Government (Scotland) Act 1973 makes provision that ".... if a member of a local authority fails throughout a period of six consecutive months to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority, cease to be a member of the authority". Permission had not been granted.

7. The Standing Orders of Falkirk Council make provision for the calling of special meetings of the Council on a requisition in writing specifying the business proposed to be transacted and signed by at least one-quarter of the whole Members of the Council. The respondents sought to convene such a meeting and eventually lodged a requisition on 16 December 2004, after having ascertained, from Councillor Fowler, the reasons for his previous non-attendance.

8. The special meeting of the Council took place on 30 December 2004. Councillor Fowler was in attendance. The subject matter was not discussed. The complainant raised a point of order on the alleged status of Councillor Fowler. The meeting adjourned until 13 January 2005 to consider this aspect further and remitted the business contained in the requisition to the next scheduled meeting of the Council.

9. At the resumption of the meeting on 13 January, the complainant proposed a formal Motion to the effect that Councillor Fowler was no longer a Councillor by virtue of the statutory provision and a vacancy was deemed to have occurred as at 19 December 2004. Councillor Gow, one of the respondents, moved an amendment that Council accept the advice given by officers and by Counsel and declare there was no vacancy. On a roll call vote 16 members voted for the motion, 14 for the amendment, with 2 abstentions. The motion became the decision of the Council. Arrangements for a by-election were commenced.

10. The decision of the Council was subject to judicial review proceedings in the Court of Session and on 4 March 2005, Lord MacFadyen found against the Council and confirmed Councillor Fowler as a member of the authority. The right of a group of elected members to requisition a special meeting of a Local Authority is a fundamental part of the democratic process. It is not only a right conferred by the terms of the Council's Standing Orders. It is, more importantly, a statutory right enshrined in the Local Government (Scotland) Act 1973. It is an unqualified right and, clearly, affords the opportunity to have meetings convened, and business discussed, which are outwith the calendar of meetings operated by a Council Administration. It is the mechanism with the obvious aim - amongst others - of enabling opposition members to seek to progress their political "agenda" in a public and formal way.

11. In this case, the respondents exercised their statutory right to requisition a meeting of the Council. They sought legal advice on the terms thereof from the Proper Officer. The Monitoring Officer confirmed that the item of business related to a topic on which previous concern had been expressed by opposition Councillors. There was also no doubt that the convening of such a meeting afforded Councillor Fowler an opportunity to attend same, as another item of business was not proceeded with in view of a possible delay to the meeting being convened.

12. The evidence indicated that a highly-charged political atmosphere exists in Falkirk Council between the respondents and the complainant and his supporters. It was in the political interests of the respondents that Councillor Fowler was maintained in office. It was in the political interests of the complainant and his supporters that this did not happen and a by-election occurred, with the opportunity for a different political candidate to be elected. The matter has had to be resolved by the Court of Session. The Court found in favour of Councillor Fowler and against the Council's decision of 13 January 2005. The Court's written judgment records that the Council's own Counsel accepted the legal right of elected members to requisition meetings.

13. Having considered the information arising from my investigation, I concluded that Councillors Linda Gow, Dennis Goldie, Gerald Goldie, Charles MacDonald, Khalid Hamid, Patrick Reid, William Anderson and Reverend Councillor John Jenkinson had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
16 August 2005