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Note of Decision Web Version

Complaint no. LA/SI/622 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Caroline Miller of Shetland Islands Council

1. Complaint number LA/SI/622 alleged a contravention of the Councillors' Code of Conduct (“the Code”) by Councillor Caroline Miller (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the provisions of Section 4 of the Code which deals with Registration of Interests and of Section 5 of the Code which deals with Declaration of Interests.

3. The person complaining (“the complainant”), alleged that at the meeting of Bressay Community Council which was held on 4 July 2007 Councillor Miller failed to declare and register interests when she was nominated to represent Bressay as a member of the Fixed Link Bressay Project Group.

He continued “Councillor Miller is a board member of Lerwick Port Authority which body has consistently opposed the Shetland Islands Council in its efforts to build a bridge or other fixed link to Bressay.” and finally he says

“Councillor Miller and her husband have recently purchased land in Bressay which may have to be compulsorily purchased to provide approach roads and other earthworks in connection with any bridge or tunnel.”

4. In her written response to the complaint the respondent explained that she is both an elected Shetland Islands Councillor and an elected Bressay Community Councillor and that it was in her role as a Bressay Community Councillor that, at the relevant meeting, she was nominated to represent Bressay Community Council on the Bressay Fixed Link Group.

The respondent also explained that her membership of the Board of the Lerwick Port Authority is registered in the Shetland Islands Council Register of Interests and that the Community Council has no similar requirement in respect of registration of interests. She wrote that she was not aware that any Declaration of Interest required to be made by her in her capacity as a Bressay Community Councillor when in that capacity she accepted the nomination of the Community Council to be a member of the Bressay Fixed Link Group.

Councillor Miller denied that she and her husband had recently purchased land in Bressay which may need to be compulsorily purchased to provide approach roads and other earthworks in connection with any bridge or tunnel. She explained that all the land which she and her family own was duly registered and that although she had been negotiating with a neighbour for over two years regarding the purchase of various parcels of land the ultimate length and outcome of these negotiations was not yet known.

5. At the centre of this complaint was a project to build a bridge linking the island of Bressay with Lerwick, the main town centre for Shetland Islands area. This project had been under consideration for some thirty years but it was in the last decade that the real prospects of proceeding with the construction of a bridge became likely. As transportation to an island is its life line, Bressay Community Council had been consulted throughout and the proposal only gained Council support after a questionnaire involving all of the islanders of Bressay gave an indication that the majority favoured the construction of a bridge. However, those opposed to the building of a bridge who sought to maintain the current ferry service were also a large fraction of the Bressay community and the division between the two camps had from time to time had supporters, one way or another, as representatives on Bressay Community Council. The respondent, throughout her time as an elected member of Bressay Community Council, had supported the creation of a fixed link.

It was against this background that the decision was taken to set up the Bressay Link Group to which the respondent was nominated by Bressay Community Council, and which held its first meeting on 6 July 2007. The respondent wrote :- “Bressay Link Group's remit is “to identify means of providing sustainable efficient transport links between Bressay and mainland Shetland for the long term and identify the most appropriate measures to carry forward to implementation for the benefit of Shetland as a whole.”” She resigned as a member of the Working Group on 26 September 2007.

6. Interest as a Member of Bressay Community Council

I was satisfied that at the meeting of Bressay Community Council which was held on 4 July 2007 the respondent was acting in her capacity as a Bressay Community Councillor when she accepted the nomination of the Community Council to represent it on the Bressay Link Project Group. There was no legal impediment to the respondent being an elected member of the local authority and an elected community councillor and this dual membership neither automatically created a conflict of interests nor constituted a breach of any part of the Councillors' Code. (This part of the complaint , which raises a wider issue of principle in relation to the desirability or otherwise of dual membership, is dealt with more fully in Note of Decision Web Version LA/SI/625).

7. Interest as a Member of Lerwick Port Authority

Another important issue of principle which arose from this complaint related to the respondent's dual membership of Shetland Islands Council and Lerwick Port Authority. Councillor Miller was one of three members of Shetland Islands Council nominated and appointed as a board member of the Port Authority. The Port Authority is a statutory public body and once again in this context the respondent found herself having dual membership of two bodies/ authorities. This, however, did not necessarily create any personal conflict even if the authorities held differing or divergent or indeed opposing positions on issues. In this case, the dispensation set out in paragraphs 103 to 108 of the Standards Commission for Scotland Guidance and Dispensations Note to Councillors and Local Authorities in Scotland which was published in April 2007, relating to the Membership of Outside Bodies, was also relevant.

Essentially, the dispensation was issued in the public interest and allows councillors to participate in discussion and voting on matters relating to certain outside bodies to which they have been appointed directly by, or on the nomination or with the approval of, their own local authority. Lerwick Port Authority being a public body established under statute is an “outside body” for the purpose of the dispensation and the respondent had correctly registered her interest as a member of that authority in her Register of Interests which she is also required to do in order to benefit from the dispensation.

The respondent in this complaint was entitled to rely on the terms of this dispensation if and when Shetland Islands Council were discussing and voting on matters relating to Lerwick Port Authority. Her participation in such discussion and voting was however, dependant upon her complying with the terms of paragraph 106 of the dispensation which made it necessary for her to declare her interest at all meetings where matters relating to the Lerwick Port Authority were to be discussed. It should also be observed that the dispensation does not apply in respect of any matter of a regulatory nature (such as, for example, if the Port Authority were applying to Shetland Islands Council for planning permission).

8. Interests in Land

With regard to Councillor Miller's land interests on Bressay, I was satisfied that at present she does not have a registerable interest under section 4 of the Code or seperately an interest which she required to declare under section 5 of the Code in respect of any land which may require to be purchased in relation to the creation of a fixed link between Bressay and the mainland. The respondent made it clear that she is aware that her position with regard to registerable and/or declarable land interests on Bressay may change in the future depending upon two factors. Those factors were firstly the outcome of her current negotiations to purchase further land on Bressay, and secondly the final decision with regard to a fixed link to Bressay and in particular the location of the access to the fixed link on the island of Bressay .

I noted that on three occasions since May 2007 the Bressay link had been an item on the agenda of a meeting of the Shetland Islands Council Infrastructure Committee. Councillor Miller was present at two of those Committee meetings but, in any event, as the Committee was on those occasions merely noting progress reports prepared by various officials, the respondent had no land interests which required to be declared.

9. Additional Comment

Finally I wish to record - and commend - that the complainant emphasised at interview that his complaint was in no way a personal complaint about Councillor Miller, rather it was about issues of principle. The respondent, for her part, was able to confirm that the complainant, in the recent past, had expressed the view to her that she was “doing well” in the performance of her Shetland Islands Council duties.

10. Conclusion

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

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

5 March 2008