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Complaint no. LA/WL/172 concerning an alleged contravention of the Councillors' Code of Conduct by Councillor Joseph Thomas of West Lothian Council

1. Complaint number LA/WL/172 alleged a contravention of the Councillors' Code of Conduct ("the Code") by Councillor Joseph Thomas (Labour) ("the respondent").

2. It was alleged that the respondent contravened the Code, in particular, the key principles in section 2 and paragraph 3.14 of the Code.

3. Councillor Thomas is Provost of West Lothian Council and chairs meetings of the Council. The person complaining, Councillor Peter Johnston (SNP) ("the complainant"), alleged that Councillor Thomas's conduct of the 14 December 2004 and 10 February 2005 Council meetings breached key principles of the Code and fell below the standards expected of the chair who has a duty to act fairly and impartially and to treat all members with respect.

4. In October 2004 an SNP MSP tabled a motion in the Scottish Parliament referring to the Union flag as a "butcher's apron" and demanding that it be banned from the Scottish Parliament. Following this, Councillor Duncan MacLean (IND) moved a motion at the Council meeting on 14 December 2004 condemning the MSP's remarks and asking where the SNP Group stood on the matter. Councillor Peter Johnston then submitted an amendment to the motion. He spoke to his amendment; it was seconded by Councillor Malcolm and, while the latter was making his speech, Provost Thomas reached a belated decision that the amendment was not competent. Most unusually, the Provost made his ruling after the amendment had been moved and seconded. Councillor Johnston was taken aback by this and asked for an opportunity to submit a further amendment, which was refused. He then challenged the Provost's ruling on competency, but the voting went against him and the motion was agreed. In dealing with the item, the Provost omitted to take a roll call vote which had been requested. Councillor Johnston said that he and other members and officers were left unclear about the status of the item and the grounds on which the Provost had ruled that the amendment was incompetent.

5. The lateness and lack of clarity of the Provost's ruling on the amendment, and his refusal to accept another amendment from the SNP Group, perhaps not surprisingly attracted an angry response from Councillors Johnston and Malcolm. In the days following the Council meeting, Councillor Johnston asked for a meeting with Provost Thomas and the Chief Legal Officer. He wanted the Provost to reopen the debate on the item at the next Council meeting on 10 February 2005. The Provost consulted the Chief Legal Officer, but he declined to hold a meeting with Councillor Johnston. Initially, he said that he would hold a roll call vote at the February meeting. However, he subsequently indicated that he would make a statement to the Council at that meeting.

6. At the meeting of the Council on 10 February, the Provost made a statement to the Council and offered an apology to Councillor MacLean for failing to take a roll call vote as requested by him on 14 December. The Provost then moved approval of the minute of the December meeting, whereupon Councillor Johnston challenged the accuracy of the minute and submitted an amendment to that effect. On a vote, the Provost's motion was approved. Under Business Arising on the agenda, Councillor Johnston attempted to move another motion re-opening the debate on the original motion relating to the Union flag. However, this was ruled incompetent under Standing Order 28 because it had been considered by the Council within the previous six months.

7. In reaching a decision on the complaint, I considered that Provost Thomas's actions did not amount to a breach of the Code of Conduct. It was recognised that he did not immediately formulate a judgement on the SNP amendment when it was tabled; it was only while he listened to the speeches and considered both them and the amendment in the light of the motion, that he arrived at his decision on competency. It was unfortunate that this took longer than normal and that those present at the meeting were left in doubt as to the reasons for the decision. However, it was felt that this was due to a short lapse in judgement and delay by Provost Thomas in gathering his thoughts, rather than an unfair or biased decision or the incorrect application of Standing Orders. While there was some confusion about the reasons for the Provost's decision, there was no doubt that he formed (and remained of) the view that the amendment did not address the motion. He acted according to his powers under Standing Orders and Councillor Johnston took the appropriate steps open to him to challenge the decision.

8. The Provost's refusal to agree to a meeting with Councillor Johnston exacerbated the sense of grievance. This, taken together with the Provost's initial proposal to give members an opportunity of a roll call vote at the 10 February meeting, heightened Councillor Johnston's concern that the matter had been badly handled. A roll call vote would not, of course, have been possible without re-opening the debate. Ultimately, the Provost made an apology at the next Council meeting but he adhered to his decision not to reopen the matter and it was within his remit to do so. While Councillor Johnston and SNP members could reasonably feel there were grounds to criticise the handling of the matter, that did not in itself amount to a contravention of the Code. Provost Thomas's actions or decisions were not so inappropriate, biased or intended to show disrespect for other members as to constitute a breach of the Code.

9. However, the complaint serves to illustrate the importance of the role of the Chair. The manner in which the Chair conducts Council or Committee meetings is of great importance. He or she must be able to ensure that the business of the meeting is progressed effectively and without undue delay or disruption. The Chair also has a responsibility to ensure fairness in debate and to allow the views and opinions of participants at the meeting to be expressed. This can sometimes be a difficult balance and in difficult situations, it will often be helpful to seek the advice of appropriate senior officials.

10. Having considered the information arising from my investigation, I concluded that Councillor Joseph Thomas had not contravened the Councillors' Code of Conduct.

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