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Complaint nos. LA/NL/770, LA/NL/776 and LA/NL/784 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Alan O’Brien of North Lanarkshire Council

1. Complaint numbers LA/NL/770, LA/NL/776 and LA/NL/784 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Alan O’Brien (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions of section 3.14 in regard to Conduct in the Chamber or in Committee and the key principles of Leadership and Respect set out in section 2.

3. The persons complaining (“the first complainant, the second complainant and the third complainant”) alleged:

LA/NL/770

The first complainant alleged that whilst he was present at a meeting of the North Lanarkshire Council North Local Area Partnership held on Thursday 14 August 2008, the respondent objected to the location of the meeting, directed comments to members of the Kilsyth and Villages Forum demanding to know what bribe they had taken to be included in the North Lanarkshire News (which the respondent described as a “Labour Party Rag”).  Later on in the meeting, the respondent accused the Chair and then all the other Labour Party councillors present of lying on another issue.  When the respondent was then requested to withdraw that comment he refused to do so and was asked to leave the meeting.  As the respondent was leaving the meeting, it was further alleged that he turned to another person present (a member of the Cumbernauld Forum) and accused him of being “nothing more than a Labour Party lag”.

LA/NL/776

The second complainant alleged that whilst he was present at a meeting of the North Lanarkshire Council North Local Area Partnership held on Thursday 14 August 2008, the respondent (a) stated that the Local Area Partnership was corrupt; and (b) described the second complainant as a “Labour lackey”.  The second complainant further alleged that that when he arrived during the said meeting, his forum colleague already present (the third complainant) had reported to him that the respondent had previously (c) stated that the North Community Forums were being bribed; and (d) referred to the Chair, Councillor William Hogg as “a liar”.

LA/NL/784

The third complainant alleged that whilst he was present at a meeting of the North Lanarkshire Council North Local Area Partnership held on Thursday 14 August 2008, the respondent alleged that the third complainant or the Cumbernauld Community Forum, which he represented, had been bribed in relation to an article in the North Lanarkshire News.

4. The three complaints alleged a failure on the part of the respondent to maintain appropriate standards of conduct in the setting of a public Local Area Partnership Meeting of North Lanarkshire Council, being an approved part of the Council’s Committee structure.  Despite the differing recollections of various parties about what transpired at the meeting on 14 August 2008, I found that there were two key “incidents” which occurred where the conduct of the respondent fell to be assessed against his obligations in terms of the Code of Conduct.

5. The first incident took place near the start of the meeting and had involved an issue about the Council’s newsletter, the “North Lanarkshire News”.  The publication of this newsletter was clearly not a matter of political unanimity between the Labour Administration of the Council and the main Opposition Group (the SNP).  The latter considered its publication was to the economic detriment of the local newspapers and also objected to its content which it classified as “Labour Party propaganda”.  (It had long been recognised that Local Government publicity required to be regulated in view of the potential for competing party political aspects to arise.  Accordingly, the matter was subject to a statutory Code with which all councils had to comply.  It was quite clear that the Council’s Monitoring Officer, who had very significant experience, gave a proper priority to ensuring the provisions of the Code regulating Local Government publicity were fully complied with.)  In a decision to make adjustments to its newsletter, the Council had taken the view that the various Community Forums within its area should have the opportunity to highlight their community activities within the newsletter.

a. The standard format of the Local Partnership meetings was to have an agenda item where each of the Community Forums could report on their recent activities. In furtherance of his Group’s party political criticism of the newsletter arrangements, the respondent had sought to question the various representatives about what involvement they had had in the recent changes whereby their activities were to be publicised. By his own admission, the respondent was seeking to embarrass these representatives by raising this publicly and seeking to suggest that such a participation in the North Lanarkshire News was damaging to local newspapers. The questioning was ruled out of order by the Chair as it did not relate to the agenda item in question. (I considered that such a determination was one of the key functions of any Chair to ensure that the business properly before a meeting was transacted with proper dispatch.)

b. The second incident related to the agenda item dealing with a presentation by the Head of Planning and Development about Cumbernauld Town Centre. Again on this issue, it had to be said that there was no political unanimity between the current Council Administration and the main Opposition Group about the appropriate way forward. It had also to be noted, in particular, that the respondent, as a candidate who had sought election to the Council, specifically campaigned on the need for additional action. (It was a matter of general public knowledge that the Cumbernauld Town Centre was previously the subject of negative publicity by winning an architectural competition as “Plook on the Plinth” 2001 and 2005, and a nomination on Channel 4’s “Worst Building in Britain Award” 2008.) The Head of Planning and Development, who was an experienced officer, had given proper professional advice to the effect that, in attempting to attract new developments to any area, negative publicity had the potential to be counter-productive and discouraged the inward investors and developers needed for any significant improvement to be achieved. The officer had sought the support of members of the Partnership meeting in that connection.

c. The suspension of the respondent was the subject of a press article which alluded to the second incident at the meeting and subsequently appeared in two local newspapers. The article however had not reported at all on the first incident at the meeting.  This was somewhat at odds with what might usually be expected given that the first incident involved the Council newsletter item was where, it was submitted, allegations of “bribery” were made involving North Lanarkshire Council.  (The general position was that such allegations tended to be given a high level of prominence in the media.)

d. My assessment of the circumstances at the meeting was not assisted by the differing recollections reported to me. There was no doubt however that the meeting was noisy, fractious and bad tempered at various points. Various comments from persons present not accustomed to attending such meetings attested to that fact and, sadly, to the fact that councillors (by far the majority component of the meeting overall), had failed to make a good impression on those persons present it might have been expected they should have been trying to impress. It had to be said that the respondent, although a key player in the two incidents which arose, could not have been solely responsible for that conclusion being reached by various parties.

6. The starting point for evaluating this complaint was the over-arching matter of the European Convention on Human Rights. In assessing the respondent’s conduct it was necessary to have regard to the right to freedom of expression which was enshrined in Article 10 of the Convention.  Article 10 dealt with freedom of expression; it provided that everyone had the right to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference from a public authority. This, however, was not an absolute right. Article 10(2) further provided that "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...”.

7. The restraints imposed by a Code of Conduct designed to uphold standards in public life were, in principle, likely to be within Article 10(2), but it was important that the restraints (on freedom of speech) should not extend beyond what was necessary to maintain those standards. There had to be justification for the interference with freedom of speech. Accordingly, whether or not a particular restraint on freedom of speech was proportionate had expressly to be considered. In relation to political comment it was the position that there was a higher threshold to be surmounted in establishing that the restraint was proportionate.  Case law had made clear that this right to freedom of expression extended to comments and beliefs which might generally be considered wrong, stupid, provocative or rude.

8. Paragraph 3.14 of the Code required councillors to respect the chair, their colleagues, Council employees and any members of the public who might be present during Council or Committee meetings and to comply with rulings from the chair.  The role of the chair in any meeting was to ensure that business was conducted in a competent manner. It was also the responsibility of the chair to achieve fairness and equality of treatment among councillors and, in particular, to ensure that any member who wished to contribute to the discussion was allowed to do so without being interrupted.  It was clear that the meeting of the Local Area Partnership fell within the range of meetings covered by the Code.

9. The Standards Commission had been particularly concerned to remind all Local Authorities of the critical need for appropriate conduct by councillors in meeting situations. The Commission had considered that high standards in the Chamber or Committee were of fundamental importance to the integrity of Council business and to public perception of local democracy. It was for this reason that the Commission had issued a section (paragraphs 32 to 40) in its formal Guidance Note to councils of May 2007 on the application of the Code which, among other things, explained the role and responsibilities of the chair of a meeting and which stated that disruptive behaviour should not be tolerated. The Guidance made it clear that the chair had a key role in ensuring that the business of a meeting was conducted with fairness, tolerance and an absence of offensive conduct.

10. The Guidance had also made clear that every council should have a set of Standing Orders which should include provisions to regulate procedure at meetings. In particular as regards disruptions in meetings, the Guidance had stated appropriate sanctions should be available “to deal with members guilty of such behaviour, including exclusion from the meeting if necessary to allow Council business to be completed”. It was my assessment that North Lanarkshire Council had appropriate Standing Orders in place which complied with the Commission’s guidance.

11. I considered that the evidence of the Convener (Chair) of the North Area Partnership and Area Committee merited particular note. He was not without experience in such matters.  His considered assessment of the situation was that, as Convener, he had dealt with the Town Centre item in terms of the Council’s Standing Orders which are designed to deal suitably with disruptive behaviour.  He considered that an end of the matter. The Commission’s Guidance had envisaged that such local action and discipline would be involved. It had also to be noted that the Convener dealt with the earlier Lanarkshire News issue (with which the three complaints to me were principally concerned) by simply  ruling the respondent’s line of questioning out of order and moving the meeting business along. Patently, it had been open to the Convener to invoke suspension procedures at this agenda item had he considered the situation merited it at that point. He had not done so.

12. It had not been possible, due to the varying reported recollections, to ascertain with complete certainty the exact words used by the respondent in his attempts to promote his political points of view at the two critical events in the meeting.  It had also to be noted that the respondent was apparently not the only person present to engage in ill-considered verbal outbursts. The Commission had made it clear in its Guidance that each councillor was responsible for his or her own individual good conduct in meetings, irrespective of the behaviour of others present. What was quite clear, however, was that the respondent firstly, sought to publicly involve and criticise representatives of the community Forums in the political dispute he and his SNP colleagues had with the Council’s Labour Administration over the development of North Lanarkshire News. Secondly, he had also sought to contrast his political position with that of the Labour Administration in relation to the current state of Cumbernauld Town Centre. There was little doubt that to do so he sought to provoke a reaction to the remarks he was making.

13. As regards the professional advice given to all parties in the meeting about “talking up” the Town Centre, by his own admission, the respondent had refused in direct terms to cooperate in such an approach.  It was clear that the respondent was entitled to adopt such a political stance, irrespective of the professional advice given or the contrary views of others attending the meeting who considered such advice had merit. Again whilst it had not been possible to establish fully the exact phraseology used by the respondent at this point, I had little doubt that the import of the respondent’s remarks had sought to portray himself as the local councillor who was “telling it like it is” and contrasting this approach with others who had spoken more optimistically about the Town Centre. The outcome of this agenda item was that the respondent was suspended from the meeting in terms of the Council’s Standing Orders.

14. The central issue in all three complaints was the respondent’s admitted proposition that the complainants, individually, or their respective community organisations were somehow complicit in, or partially responsible for the Council’s changes in the North Lanarkshire News to the detriment of the local newspapers. The respondent’s political stance was not supportive of the Council’s Newsletter and it was clear that he was seeking to take a further public opportunity to promote that point of view.  To do so, he had sought to link this to the Community Forums reports item on the agenda. It was, to say the least, a spurious link and one that any experienced convener would rule out or order once the line of debate being pursued became evident.  That was what indeed occurred.

15. Decisions regarding any such changes to the newsletter were, as a matter of fact, solely within the remit of the Council to take.  It was the case that these changes had indeed included the allocation of article space to the various local Community Forums in the area who participated in the Council’s Community Planning process to publicise their work. Community Groups generally did not have financial resources available for newspaper or other media advertising so it was somewhat tenuous for the respondent to seek to suggest that such groups could have an economic effect on the general media.

16. The three complainants (and indeed the Chair of another Community Forum who was not a complainant) have made clear that they were unhappy and irritated by the respondent’s manner of attempting to involve their organisations in promoting his ongoing criticism about the Council’s changes to its newsletter.  That standpoint was entirely understandable. Most informed observers would have seen the benefits of cooperation between any local authority and community groups it sought to engage with in the Community Planning process.  Highlighting the work of community groups in a council newsletter should have reasonably been seen as a positive benefit. As regards the suggestion by the respondent of current or past membership of the first and second complainants of the Labour Party, this had a factual basis. 

17. Making any allegation of criminality, such as bribery, in a public meeting was a singularly ill-considered course of conduct for anybody to pursue. The differing accounts of those present meant that I had been unable to make any determination of the exact words or phrases used by the respondent and others in relation to his line of attempted questioning on the matter about the Council newsletter.  In this instance however, I had not been persuaded that any remarks passed by the respondent had the intent to allege actual criminality on the part of any individual or organisation.   Rather, any remarks made were attempting to highlight his political views and to seek to suggest some community group office bearers were somehow “aligned” with the Council’s Labour Administration.

18. The key principles contained in section 2 of the Code were not in themselves substantive terms of the Code but were to be read in conjunction with the prescriptive provisions contained in section 3. Leadership and Respect were inherently desirable qualities in those who engaged in public service and it was regrettable when personal emotion or ill-considered comments were allowed to detract from the normal standards of conduct.

19. I had taken into account that the respondent was a relatively inexperienced councillor.  He was entitled to promote his political stance. He stood for election seeking to make changes in his locality. That did not excuse bad or disruptive behaviour. His approach to dealing with these two particular incidents in the one meeting had done him little personal credit. It was ill-considered and ill-advised and obviously was one of the key factors in the adverse perception of North Lanarkshire Councillors that a number of persons attending the meeting had gained.  I counselled the respondent to seek early guidance from more experienced political colleagues on amending his debating style with a view to ensuring that his political views could be articulated as he wished without rendering him liable to be suspended from the very Council proceedings he needed to attend in order to promote his views and influence democratic debate. It was my assessment that should the respondent continue to develop his debating style along the lines of his approach at the Local Partnership Meeting on 14 August 2008, he would render himself liable to further  deserved criticism and potential action by the Council and also to further potential complaints to me.

20. I had to make the general observation that it was not unknown for relationships between Local Authority Members, Community Councillors or members of other Community Groups to become strained due to the different roles and responsibilities carried out in the locality by each group or, on occasion, due to  political differences. It had also to be said that experienced councillors had generally found a collaborative and diplomatic approach beneficial in the long run when dealing with Community Groups. I considered that the respondent should be particularly mindful of his responsibilities in taking forward the business of the community he was elected to serve and exercise considered judgement on what public comments were made about, and also his approach to dealing with, community representatives.

21. In this instance the outcome of the North Lanarkshire Council Local Area Partnership meeting of 14 August 2008 in respect of the respondent was that he was suspended from the meeting at Agenda Item 13 following on a formal democratic decision being taken by that meeting in terms of the Council’s Standing Orders designed to regulate the conduct of its meetings. In cases of “one-off” disruption, this was the correct action and, critically, also the sanction which had been envisaged by the Standards Commission in the formal Guidance it had issued as applying in such circumstances.

22. Having considered the information that arose from my investigation, I concluded that, Councillor Alan O’Brien had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

23 March 2009