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Complaint no. LA/R/338 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor John McDowell of Renfrewshire Council

1. Complaint number LA/R/338 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor John McDowell ("the respondent").

2. It was alleged that the respondent had contravened the Councillors' Code of Conduct, and, in particular, had failed to act in accordance with the key principles of the Code of Conduct.

3. The person complaining ("the complainant") alleged that the respondent, as Chair of the Regulatory Functions Board of Renfrewshire Council, was not fair and impartial in dealing with licensing applications before him at a meeting on 18 November 2004 and would not allow witnesses to speak or offer testimony. In addition, he would not allow one of his fellow councillors nor the Chief Executive of the Council to be called as witnesses.

4. The respondent denied any misconduct on his part and alleged that he took his role as Chairman of the Regulatory Functions Board very seriously and made sure that all applicants got a fair hearing to present their case before the Board made its decision. He referred to the length of time between the meeting complained of and the lodging of the complaint.

5. I found that my powers, and that of the Standards Commission, were in respect of the Councillors' Code of Conduct which dealt with the individual conduct of Councillors. The operation of a taxi licensing system, in terms of the Civic Government (Scotland) Act 1982, rested with each Council as a corporate body. Decisions were taken by the corporate body and the legislation set out the remedy for applicants who were aggrieved about decisions or how they were taken. This was by means of judicial proceedings in the Sheriff Court. It was not a mechanism that was unfamiliar to the complainant. A number of the complainant's detailed representations sought to import to the respondent, as an individual, responsibilities and duties which were clearly the responsibility of the Council as a corporate body and confirmed as such by statute.

6. As regards the particular preliminary matter of arranging for the Convener of the Commercial Operations Policy Board and the Chief Executive of the Council to be called as witnesses for the complainant, I was clear that there was no corporate responsibility on the Council as licensing authority, nor more to the point, on the respondent as an individual Councillor to do any such thing. It was a matter entirely for the complainant to deal directly with the individuals concerned. Any other expectation on the part of the complainant was surprising in view of the complainant's undoubted knowledge about the taxi licensing system.

7. I had also to observe that, in considering the individual conduct of the respondent as Convener of the Board in this instance, regard must be had to the general powers and duties and responsibilities of any Convener or Chairman. The primary responsibility was to ensure the proper conduct of the meeting with a view to completing the business which had been set down for decision in an efficient, organised and appropriate manner. It was particularly important that decisions were made in such a way so as not to render them open to challenge and be declared invalid. The subject matter of any meeting affected how the meeting proceeded. Each Convener would reach his/her own conclusion on what was required. It was quite clear that the special and extensive experience of the respondent was more than ample to have qualified him to discharge his responsibilities as a Convener in the circumstances outlined in this case. It was beyond doubt that he was well aware of the particular need to ensure fairness, if for no other reason than that such a standard would place any decision reached by the Board beyond judicial challenge on that point.

8. It could not be said there was an automatic entitlement for an applicant to have any and all witnesses heard. Any Convener responsible for the proper conduct of the meeting had to take a view on how the proceedings were to be run and what was required to ensure effective and fair decision making. As a general rule there was no prohibition on any Convener asking for evidence to deal with the key aspects of the case only. Duplication of evidence and efforts to revisit matters already determined could, with justification, be rejected by any Convener.

9. In this case a number of the complainant's lessees and drivers were in the public gallery. They were concerned as to the Council's policy on wheelchair accessible vehicles. This was by no means a new policy. It had been in existence for several years. It was clear that the Convener allowed the complainant and the complainant's representative to be heard at some length regarding the applications before the Board and in particular their views that the policy should not apply as the Licensing Authority had intended. After hearing these submissions, the Board adjourned to consider the matter. That was for the discretion of the Convener to decide and I had no evidence before me that in the circumstances of the meeting he was not entitled to take that step. The Board determined to continue the applications. Thereafter, the applications were subsequently granted. If they had been granted in terms that were not acceptable to the complainant, the correct and obvious remedy was to appeal the decision to the Sheriff Court.

10. In considering the allegations regarding the individual conduct of the respondent, I had to assess these against the specific obligations narrated in the Code of Conduct. I had no evidence that the key principle of Objectivity in taking decisions solely on merit has been breached. The fact that the complainant disputed the decisions made and that there may have been a number of people who agreed did not translate into misconduct on the part of the respondent. As regards the key principle of Openness, the respondent intimated the decision at the meeting of 18 November 2004 after the meeting resumed. The legislation set out a specific mechanism for applicants to obtain a statement of reasons from the Council, as licensing authority, when applications had been determined. In the circumstances, I made no finding of fault on the part of the respondent. In connection with the final duty of the respondent in terms of paragraph 3.14 of the Code to show respect to members of the public in the Chamber, as read with the specific guidance issued by the Standards Commission, it was clear that this obligation referred to abusive situations or disruption of the conduct of meetings. There was no evidence before me of any such wrongdoing on the part of the respondent.

11. Having considered the information that arose from my investigation, I concluded that Councillor John McDowell had not contravened the Councillors' Code of Conduct.

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