Information on Investigations

Which Sector? > Local Authorities > Orkney Islands > LA/OI/74A&B

Note Of Decision Web Version

Complaint no. LA/OI/74A&B concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Cyril Annal and Councillor Ann Sutherland of Orkney Islands Council

1. Complaint number LA/OI/74A&B alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillors Cyril Annal and Ann Sutherland ("the respondents").

2. It was alleged that the respondents had contravened the Code, in particular, key principles of Duty, Selflessness, Objectivity, Accountability and Stewardship and Leadership set out in section 2, and the provisions relating to Confidentiality set out in paragraphs 3.15 and 3.16.

3. The person complaining ("the complainant") alleged that in December 2003 the first respondent, Councillor Annal, contacted his neighbours and attempted to solicit a complaint about his actions in attempting to constrain the use of a right of way passing over his property. The complainant was of the view that this amounted to canvassing and inciting opinion that was prejudicial to him. The complainant also alleged that prior to the meeting of the Environment, Planning and Protective Services Committee of Orkney Islands Council on 24 March 2004, at which the issue of the right of way was to be considered in private, information was broadcast on BBC Radio Orkney which potentially influenced the outcome of the meeting. He attributed the broadcast to an unauthorised release of information from Orkney Islands Council and alleged that Councillor Sutherland, as Chair of the relevant committee, was ultimately responsible.

4. A dispute over the extent to which the right of way passes across the complainant's land has continued for several years and, as local member, Councillor Annal had received representations from several members of the community in that connection.

5. The complaint against Councillor Annal related to a telephone call made by the Councillor to the complainant's neighbour around December 2003. In the course of the conversation it was alleged that Councillor Annal suggested that a letter of complaint be sent to the Council regarding the measures taken by the complainant to restrict the use of the right of way which at that point also forms the access road leading to the neighbouring property.

6. Councillor Annal agreed that a telephone discussion took place regarding the road and that this followed upon an earlier conversation during a canvassing visit.

7. The vindication of rights of way is an important function of local authorities. Often they will require to ingather considerable evidence relating to use, take into account often widely divergent accounts and, if necessary, consider raising court proceedings. In the event of a local authority deciding to raise court proceedings, then that is an administrative decision and not a quasi-judicial or judicial one; it is the court that will have the judicial responsibility of making the final judgement on the matter.

8. A local councillor is entitled to propose that the local authority should take action to keep open a right of way in accordance with its established use and the councillor is equally entitled to collect support - particularly from the local community and persons directly affected - for any such proposal.

9. I therefore found that Councillor Annal was entitled to take the action he did in proposing a course of action to any persons who were concerned about the limitation of the right of way concerned in this complaint.

10. The complaint against Councillor Sutherland relies upon two assertions: firstly, that the news item broadcast by BBC Radio Orkney was prepared in whole, or in part, from an unauthorised release of information by Orkney Islands Council; and secondly, that Councillor Sutherland as Chair of the relevant committee could be held responsible. I did not consider that these two assertions are necessarily linked.

11. The majority of the news report referred accurately to prior events which were already in the public domain. There had already been direct contact between the BBC and the complainant who gave an interview on 11 March 2004 specifically about the right of way issue. Reports had also been printed in the local press and the gates, stones and cattle grid erected by the complainant were open to public view. The minute of the meeting of the Environment, Planning and Protective Services Committee held on 11 December 2003 was publicly available, and the agenda for the meeting to be held on 24 March 2004 had also been made available to the press and BBC Radio Orkney. I therefore considered that the news broadcast in so far as it referred to events occurring prior to the meeting on 24 March was within the bounds of normal reportage.

12. The final sentence of the broadcast was of greater concern in that it speculated, as it so happens accurately, on the recommendation of the Environment, Planning and Protective Services Committee. The complainant took the view that the wording implied prior knowledge of the recommendations contained in the report prepared for the Committee's consideration. So far as it can be ascertained, the BBC position is that this part of their report was a reasonable conclusion drawn from the known facts and preceding history of the matter as revealed in the minutes of the Environment, Planning and Protective Services Committee.

13. In regard to the assertion that Councillor Sutherland can be held responsible for the release of information considered in private by her Committee (if in fact any was released) I found, without any hesitation, that Councillor Sutherland was not responsible for any such release. Further, I found that she had no collective responsibility in respect of any such release by other members of the Committee. In any event, in the present case it had not been established that any misconduct relating to the unauthorised release of confidential information took place, or that such release necessarily resulted from the actions of a member of Councillor Sutherland's committee.

14. The complainant also advanced the view that the broadcast could have influenced the eventual decision of the Environment, Planning and Protective Services Committee.

15. While generally the unauthorised release of confidential information prior to discussion in committee is wholly improper, I considered that in this particular case it did not affect the Committee's actual decision and had no other serious consequences. Given the Council's legal duty to assert and protect rights of way, the move to enforcement or court action was likely and would not have been altered by the broadcast of an anticipated decision prior to the meeting on 24 March 2004. The broadcast did, however, reinforce the complainant's existing sceptical view of the Council's objectivity, and the undermining of the assurances that the issue would be dealt with in a fair and proper manner. I was encouraged however that, notwithstanding the mandate to take enforcement action, both the Council, through the Assistant Chief Executive, and the complainant, through his legal agent, were minded to seek a mutually acceptable resolution, and that the Council might assist with the maintenance of the route.

16. Having considered the information arising from my investigation, I concluded that, Councillors Cyril Annal and Ann Sutherland had not contravened the Councillors' Code of Conduct.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
21 July 2004