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Note of Decision Web Version

Complaint nos. LA/SB/146, 154, 155, 158 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor David Richardson of Scottish Borders Council

1.0 Introduction

1.1 Complaint numbers LA/SB/146, LA/SB/154, LA/SB/155 and LA/SB/158 allege a contravention of the Councillors' Code of Conduct ("the Code"). The Code was issued by the Scottish Ministers in terms of section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ("the 2000 Act") and came into effect on 1 May 2003.

1.2 The complaints have been lodged by four complainants who allege a contravention of the Code by Councillor David Richardson ("the respondent"). The respondent is an elected member of Scottish Borders Council ("the Council").

1.3 It is alleged that the respondent, having been convicted in relation to charges of assault and breach of the peace, has contravened the Councillors' Code of Conduct, and, in particular, the key principles of Duty and Leadership in section 2.1 of the Code.

With regard to Duty the Code states:

"You have a duty to uphold the law and act in accordance with the law and the public trust placed in you. You have a duty to act in the interests of the Council as a whole and all the communities served by it and a duty to be accessible to all the people of the area for which you have been elected to serve, and to represent their interests conscientiously."

With regard to Leadership the Code states:

"You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the Council and its councillors in conducting public business."

2.0 Outline of the Complaints and the Response

The Complaints

2.1 The complaints are set out in correspondence from the complainants who allege that, as a result of his convictions for assault and breach of the peace, Councillor Richardson has failed to uphold the law or act in accordance with the law, that he has rendered himself inaccessible to many of his constituents and that he has failed to maintain the public's trust and confidence in the integrity of councillors. They further allege that, as a result, he has failed to uphold the key principles of Duty and Leadership in section 2.1 of the Councillors' Code of Conduct and that his conduct represents a breach of the Code.

The Response

2.2 The response is set out in a letter from the respondent in which he states that, as the incidents which led to his convictions took place in the course of his private life and as the Code only relates to conduct relating to his duties as a councillor, he has not breached the Code. In addition he refutes the allegation that he has lost the trust and confidence of the electorate.

3.0 The Investigation

3.1 As the complaints all relate to the same incidents of alleged misconduct they have been investigated as part of the same complaint.

3.2 To establish the background to the complaint, I sought and received information from the respondent. In addition I interviewed the respondent, the complainants and the Monitoring Officer of the Council.

4.0 Consideration of the Evidence

4.1 Councillor David Richardson was a Councillor with the former Roxburgh District Council from 1980 to 1989. He was also a member of Scottish Borders Council from 1994 to 1999 and was re-elected to the Council in 2003. He represents the Burnfoot and Mansfield ward on the Council. Burnfoot Community Council is the main Community Council for Councillor Richardson's ward and the Hawick Community Council also covers part of his ward.

4.2 The complaints arise from Councillor Richardson's convictions for assault and breach of the peace at Jedburgh Sheriff Court on 6 December 2004. The conviction for assault relates to an incident involving Councillor Richardson at Diesels Nightclub on 11 April 2004. The breach of the peace incident occurred some time later and involved the person who Councillor Richardson had assaulted. At the time of the assault Councillor Richardson was employed, on an occasional basis, as a bouncer with Diesels Nightclub but he was not on duty on the night of the incident on 11 April. The respondent was fined (other options of disposal would have been available to the Court if it had thought fit) £200 for the assault and £150 for the breach of the peace and was ordered to pay compensation of £300 to the person assaulted.

4.3 One complainant is a member of Burnfoot Community Council but his complaint has been lodged in a personal capacity. Although Burnfoot Community Council discussed Councillor Richardson's conviction at its meeting on 21 January 2005 it has not complained as a body.

4.4 Two of the remaining three complainants are members of Hawick Community Council. At its meeting on 14 December 2004 Hawick Community Council agreed by a majority of 8 to 4 that "the Community Council should write as a body to the Standards Commission rather than make approaches as individuals." The Chair of the Community Council submitted a complaint on 29 December 2004 and this was supported by two further complaints from individual members of the Community Council.

4.5 Following his conviction Councillor Richardson resigned from his position as Chair of the Council's Teviot and Liddlesdale Area Committee. In his letter of resignation he stated that this was so that the Committee could "retain its respect and function properly for the people of the area." He remains as a member of the Area Committee. He explains that he continues to serve as a member of Scottish Borders Council because he considers that he has not lost the trust and confidence of the electorate and because he has been reassured by some of the electorate that they are happy with the work he is doing within the community and still support him. He also claims that the vast majority of the members of Burnfoot Community Council still support him.

4.6 Councillor Richardson's view is that the Councillors' Code of Conduct applies to conduct relating to his duties as a councillor but does not apply to conduct relating to his private life. He considers that, as his convictions relate entirely to his private life, the conduct which led to them falls outwith the Code and, consequently, that he has not breached the Code.

Findings and Conclusion

5.1 The complainants allege that Councillor David Richardson contravened the Councillors' Code of Conduct, as outlined in paragraph 1.3 above.

5.2 The facts underlying the complaint are not in dispute. Councillor Richardson has acknowledged that the acts of misconduct which led to his convictions were wholly inappropriate and unacceptable although they occurred in the course of his private life. All other parties to the complaint are agreed that his conduct was reprehensible. I have, therefore, found (i) that the respondent committed the offences and was convicted at the Sheriff Court, as described in paragraph 4.2 above and (ii) that the acts of misconduct occurred in the course of his private life and not at a time when he was acting as, or undertaking duties and responsibilities in his capacity as, a councillor of the Scottish Borders Council.

5.3 The issue is, therefore, whether his conduct, which occurred in the course of his private life, is covered by the Councillors' Code of Conduct. The complainants are strongly of the view that Councillor Richardson has failed to uphold the law, that he has rendered himself inaccessible to many of his constituents and that he has failed to maintain the public's trust and confidence in the integrity of councillors. They consider that, as a result, he has failed to uphold the key principles of Duty and Leadership in paragraphs 2.1 of the Code and that his conduct represents a breach of the Code. In contrast, it is Councillor Richardson's contention that the Code does not extend to conduct which relates solely to his private life and, therefore, that the issue of whether he has contravened the Code does not arise.

5.4 The first point to be made is that the Code is intended to apply to the conduct of councillors whilst undertaking their Council duties. In other words it applies to persons acting in their capacity as councillors and not as private individuals. The key principles set out in section 2 and upon which the Code is based apply to formal and also informal Council business or conduct. Paragraph 2.2 of the Code refers to the requirement to apply the key principles to informal dealings with Council employees, party political groups and others as well as at formal meetings but does not expressly extend this requirement to private conduct and section 3 of the Code dealing with "General Conduct" makes no reference to matters which are unconnected with the Council.

5.5 Private interests - as distinct from private conduct - are covered by the Code for the purposes of registration and declaration of interests. These rules are intended to produce transparency in regard to interests that might be thought to influence councillors, when they are acting in that capacity on Council business.

5.6 If it had been intended that private or unofficial conduct should be covered by the Code, then it would have been a comparatively straight-forward matter to have made the appropriate provision. In England, the Model Code of Conduct (the equivalent of the Councillors' Code in Scotland) provides that a councillor must not in his official capacity, or in any other circumstance, (my emphasis) conduct himself in a manner which could reasonably be regarded as bringing his office or Council into disrepute (paragraph 4 of schedule 1 to the Local Authorities (Model Code of Conduct) (England) Order 2001) but there is simply no equivalent provision in Scotland.

5.7 I would also observe that the Code was not intended to cover all aspects of councillors' behaviour; it is limited to the areas prescribed within it. There will be aspects of misconduct not covered by the Code where other sanctions may be brought into effect, such as, for example, the Council removing a councillor from a position or office within the Council (in this case Councillor Richardson resigned his position as a Committee Chairman). Such misconduct may also well be taken into account in due course by the public in the electoral process.

5.8 In this particular case, the misconduct in question did not take place when the respondent was acting in an official capacity and that is accepted by all the complainants.

5.9 I have, therefore, concluded that, having regard to the findings in section 5 of this Note of Decision, the misconduct by Councillor Richardson which led to his conviction was not in any way related to his duties and responsibilities as a councillor, and, accordingly, falls outwith the application of the Councillors' Code of Conduct. I, therefore, find that Councillor Richardson has not breached the Code in terms of these complaints.

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