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Note of Decision - Case No. LA/WD/04

Complaint against (i) Councillor James McCallum (ii) Councillor Linda McColl and (iii) Councillor Geoffrey Calvert

1. This case is a complaint by Councillor Craig McLaughlin alleging that (i) Councillor James McCallum (ii) Councillor Linda McColl and (iii) Councillor Geoffrey Calvert breached the Councillors' Code of Conduct by acting with bias in considering a licensing application relating to Nightingails nightclub, Balloch contrary to the provisions of the Code set out in section 2 on Selflessness, Objectivity and Honesty and by failing to declare an interest under section 5 of the Code. All these councillors are elected members of the West Dunbartonshire Council who have their principal offices in Dumbarton.

2. Section 2 of the Code of Conduct sets out the general principles of the Code. With reference to Selflessness, it provides that councillors have a duty to take decisions solely in terms of the public interest. With reference to Objectivity, it provides that councillors must make decisions solely on merit when carrying out public business. With reference to Honesty, it provides that councillors have a duty to act honestly and that they must declare any private interests relating to their public duties and take steps to resolve any conflicts arising in a way that protects the public interest. Section 5 of the Code sets out rules requiring councillors, in certain circumstances, to declare interests which might influence, or be thought to influence, their actions as councillors.

3. Following the local government elections in May 2003, the constitution of the Council is made up of 17 Labour members (including the respondents), 3 SNP members (including the complainant), 1 SSP member and 1 Independent member. The West Dunbartonshire Licensing Board, appointed by the Council following the elections, comprises 6 Labour members (including the respondents) and 1 SNP member with a further position for a member of the opposition currently unfilled.

4. Mr Ronald McColl, the proprietor of Nightingails at the time, had applied for a renewal of a regular extension of permitted hours for a further period of 12 months and the application was heard at the meeting of the Licensing Board on 17th June 2003. The Board members who were present were the respondents, Councillors McCallum, McColl and Calvert, Councillor Jack Duffy (a Labour member) and Councillor Raymond Young (an SNP member). Mr Ronald McColl had been an SNP member of the Council until the elections in May 2003. Councillor McLaughlin was the manager of Nightingails at the time of the application. He is no longer the manager as the premises have since closed.

5. Essentially the complaint is to the effect that Councillors McCallum, McColl and Calvert did not make their decision on the licensing application on its merits but in an improper way being biased against the interests of Mr McColl and Councillor McLaughlin.

6. There were two applications submitted to the Licensing Board in respect of Nightingails. The first application was for the renewal of Nightingails' entertainment licence; there were no objections to this, and the application was duly granted.

7. The second application was for the grant of a regular extension of permitted hours namely from Monday to Wednesday from 11pm to 1am and from Thursday to Sunday from 11pm to 3am.

8. A Licensing Board may grant an application for the regular extension of permitted hours if, having regard to the social circumstances of the locality in which the premises are situated or to activities taking place in that locality, the Board consider it is desirable to do so. The Board must not grant an extension of permitted hours if it considers that the extension is likely to cause undue public nuisance or to be a threat to public order or safety. Furthermore, a Licensing Board must not grant an application for an extension of permitted hours unless it is satisfied (a) that there is a need in the locality in which the premises are situated for a regular extension of the permitted hours and (b) that such an extension is likely to be of such benefit to the community as a whole as to outweigh any detriment to that locality. In determining whether to grant an application for a regular extension in respect of any premises it is not a relevant consideration for the Board to have regard to whether any application relating to any other premises in its area has, at any time, been granted or refused or the grounds on which any such application has been granted or refused.

9. The Chief Constable of Strathclyde Police submitted a formal objection dated 27th May 2003 to the application for extended hours on the grounds that there would be a threat to public order and safety and that the detriment to the locality far outweighed any benefit to the community. In support he cited 33 offences which had been detected between July 2002 and May 2003 in the vicinity of Nightingails. After submitting his objection, a major disturbance took place on 8th June 2003 outside Nightingails which resulted in 8 arrests and the Chief Constable accordingly submitted a further letter of objection dated 13th June 2003. The latter objection was a late objection and the applicant accepted that this could be taken into account by the Board.

10. Mr McColl, as the applicant, attended the meeting along with his solicitor. Councillor McLaughlin did not attend any part of the meeting.

11. The Board, at the meeting on 17th June 2003, took over an hour to consider the application; this included hearing the applicant's solicitor and the Police in support of the objections and the viewing of a CCTV recording of the incident which had taken place on 8th June 2003.

12. Having considered the evidence from all members of the Board present at the meeting, the complainant, the local Chief Superintendent of Strathclyde Police and the Clerk to the Board, I am satisfied that the Board dealt with the application thoroughly.

13. After hearing the submissions by the applicant's solicitor and the representations by the Chief Superintendent, Councillor McCallum moved that the application be refused on the grounds there would be a threat to public order or safety. In so doing he did point out that it was accepted that, in all probability, the disturbances would have involved persons who had been at other premises than Nightingails prior to the disturbances in question.

14. Councillor Duffy moved that the application be granted but only for the period until the October meeting of the Board in 2003. No motion was put forward to grant the application as submitted, namely for a period of 12 months.

15. On the vote being taken Councillors McCallum, McColl and Calvert voted for the motion that the application be refused and Councillors Duffy and Young voted for the motion that the application be granted until October 2003. The Board's decision was, therefore, to refuse the application. It is not competent to re-apply for a grant of extended hours within 12 months of a refusal unless the Board makes a direction to the contrary. The Board did, in this case, direct that a new application could be submitted to the next meeting in October 2003.

16. Councillor McLaughlin has alleged that Councillors McCallum, McColl and Calvert, as long time political opponents of Mr McColl (when he had been an SNP member of the Council) and also of himself, had been biased against them and had been unable to deal fairly with the application for extended hours that had been before them at the Board meeting on 17th June 2003. Councillor McLaughlin evidenced occasions at meetings of the Council in December 2002 and January 2003, when the respondents had voted against Mr McColl and himself on matters relating to their (Mr McColl and Councillor McLaughlin's) conduct and on matters relating to Mr McColl's financial relationship with the Council, to show that the respondents were opposed to them. He also suggested that the application could have been discussed at a meeting of the Labour Group (which is a meeting of all Labour members of the Council). He was not, however, able to produce any supporting evidence for this assertion and he did concede that he was drawing conclusions when he said there had to be bias on the part of the respondents.

17. Councillors McCallum, McColl and Calvert have strenuously denied any question of bias and they have said that their decision was taken on the merits, having regard to the statutory criteria relating to the granting of regular extensions in respect of permitted hours.

18. Councillor Duffy and Councillor Young who moved that the application be granted (albeit for a restricted period up to October 2003) both said that, in their opinion, the decisions that had been taken by all members of the Licensing Board - that is including Councillors McCallum, McColl and Calvert - had been taken fairly and impartially. The Clerk also gave evidence that, in his opinion, all members of the Board had acted entirely properly and fairly in their consideration of the application. He was also supported in this by the Chief Superintendent of Strathclyde Police.

19. I have, therefore, come to the conclusion that Councillors McCallum, McColl and Calvert acted entirely properly during their consideration of the application for the regular extension of permitted hours in respect of Nightingails, that they were entitled to participate in the discussion and to vote on the application and that there was no contravention of the Councillors' Code of Conduct. I should also add that I came to this conclusion without difficulty given that Councillor McLaughlin could bring forward no real evidence to justify his complaint.

20. Accordingly I have decided that Councillors McCallum, McColl and Calvert have not contravened the Councillors' Code of Conduct in terms of this complaint and I find accordingly.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
21st October 2003