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Note of Decision - Case No. LA/WL/17 & 19

Concerning an alleged contravention of The Councillors' Code of Practice
by
(i) Councillor Carol Bartholomew
(ii) Councillor William Russell
(iii) Councillor Willie Dunn
(iv) Councillor Graeme Morrice
(v) Councillor John McGinty
(vi) Councillor Cathy Muldoon
(vii) Councillor Wendy Mutch
(viii) Councillor Danny Logue
(ix) Councillor David McGrouther
(x) Councillor Bert Gamble
(xi) Councillor Bruce Ferrie
(xii) Councillor Neil Findlay
(xiii) Councillor Hugh Owens
(xiv) Councillor Jim Swan

of West Lothian Council

1. Complaints number LA/WL/17 and number LA/WL/19 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.

2. In complaint number LA/WL/17 the person complaining is Councillor Peter Johnston ("the first complainant") and he has alleged a contravention of the Code by the 14 Councillors listed above ("the respondents"). All the Councillors are elected members of West Lothian Council ("the Council") who have their principal office in Livingston and all of whom have signed a declaration of acceptance of the office of councillor under the Local Authorities (Councillors) (Declaration of Acceptance of Office) (Scotland) Order 1990 as amended in terms of which they undertake to meet the requirements of the Code.

3. In complaint number LA/WL/19 the persons complaining are Mr and Mrs A ("the second complainants") and they allege the same contravention of the Code by the same 14 respondents as in complaint LA/WL/17.

4. The complainants allege that at a meeting of the Council's Children's Services and Lifelong Learning Committee on 7 October 2003 ("the Committee") the application of the Labour Group whip effectively prejudged a decision regarding a request by the second complainants that the Council should support and fund a home-based education programme for their son, who is autistic. It is further alleged that this was a breach of the Council's Standing Orders and therefore a breach of section 1.5 of the Code which states:

"Councillors hold public office under the law and must observe the rules of conduct stemming from the law, this Code and any guidance from the Standards Commission and the rules, standing orders and regulations of the Council. It is your personal responsibility to comply with these and review regularly, and at least annually, your personal circumstances with this in mind, particularly when your circumstances change. You must not, at any time, advocate or encourage any action contrary to the Code of Conduct."

5. The relevant Standing Orders for the purpose of this case are Standing Orders 13 and 17. Standing Order 13 is headed DEPUTATIONS and reads:

"(1) The Council may hear a deputation on any matter that is included in its power and duties or delegation.

(2) Every request for a deputation shall be submitted in writing by the individual, or a representative of the organisation or group, wishing to be heard.

(3) A request for a deputation which does not relate to a matter to be included on the agenda for a meeting shall be delivered to the Clerk by noon no less than six clear days before the meeting. A request for a deputation which relates to a matter included on the agenda doe a meeting shall be delivered to the clerk no later than the working day before the meeting. A request submitted later than these times may be considered if the chair so rules in terms of Standing Order 7 or 11 as appropriate.

(4) The Council shall decide whether to hear a deputation. A member may move that the deputation be not heard. The member shall explain briefly the reason for so moving and the motion shall be put to the vote without amendment or discussion.

(5) A deputation shall have five minutes to present its case and shall confine itself to the matter contained in the request to be heard. The Chair may rule that deputations be heard together if the Council decides to hear more that one deputation on the same subject. When deputations are heard together, the Chair shall rule how much time to allow.

(6) After the deputation has spoken, Members may put relevant questions to the deputation. The Chair shall rule how much time to allow.

(7) The Council shall consider the views of the deputation and a report by officers of the Council before reaching a decision on any matter raised by a deputation."

Standing Order 17 is headed VOTING INTENTIONS and reads:

"Members shall not agree before a meeting to be bound to cast their vote in a particular way when:-

• the meeting is dealing with a matter where the decision may affect the interests of any person as an individual; and
• the decision is made after a hearing by the committee where the person has a right to be heard (in person or through a representative)

This paragraph does not apply to deputations."

6. For the purpose of this investigation, interviews were undertaken on 20 January 2004.

7. The Committee is comprised of 3 religious representatives, 1 teachers' representative and 24 councillors. The political balance of the committee is 1 Independent member, 1 Conservative member, 7 SNP members and 15 Labour members - 14 of whom are the respondents. Councillor Johnston is the Leader of the SNP Group and a member of the Committee.

8. The first complainant, Councillor Johnston, expressed the view that the respondents had breached the Council's Standing Orders by applying the whip. The fact that the whip was applied in this case is not in dispute.

9. Councillor Johnston accepted that Mr and Mrs A's presentation to the Committee took the form of a deputation with the aim being to persuade the Committee to support and fund a home-based education programme - known as Son-Rise - for their son. The item of business which included the hearing of the deputation and the subsequent discussion and decision took some two hours. He believes that it is a "fine point" whether there is a difference between a hearing and a deputation and in any event the same standards as apply to a hearing should apply to a deputation if it is heard.

10. Councillor Johnston agreed that the Committee decided to hear Mr and Mrs A's deputation in terms of Standing Order 13(4). His view is that the Committee then failed to proceed as it should have in terms of Standing Order 13(7) because of the application of the Labour Group whip. He acknowledges that Standing Order 17 does not apply to deputations but states that this is not a "get out clause". He accepts that the Committee could have adjourned after hearing the deputation to enable the Labour Group to reconsider its position on the matter, but considers such a course of action was unlikely. In his view the Convener should not have agreed to hear the deputation on the basis that the request contained within it was considered to be contrary to Council policy. He summarised his position by saying that Standing Order 17 should not "take away from the duty contained in Standing Order 13(7)".

11. Mr and Mrs A, the second complainants, agree that the presentation they made to the Committee on 7 October 2003 took the form of a deputation. Their aim was to persuade the Committee to provide the Son-Rise programme for their son. They complain that the respondents breached Standing Order 13(7) in that they reached a decision before considering the views of the deputation and a report by the Director of Education. They take the view that the terms of the Voting Intentions Standing Order 17 are irrelevant as the Committee was proceeding in terms of the Deputations Standing Order i.e. Standing Order 13.

12. At interview Mr and Mrs A expressed the view that their presentation had been prejudged by virtue of the application of the Labour Group whip. They consider that they were subjected unnecessarily to a harrowing and humiliating experience and that the appropriate course of action would have been for the Convener to refuse to hear their deputation. They believe that as the respondents failed to comply with the terms of Standing Order 13(7) they breached the Code by failing to act in a fair, open and honest manner.

13. In his response Councillor Morrice who is the Leader of the Council and who acted on behalf of all the respondents stated that as the issue raised by Mr and Mrs A in their deputation was one of policy it was legitimate for the policy whip to be applied.

14. Councillor Morrice further stated that the specific issue of providing facilities for the second complainant's son could not be divorced from the general issue of providing facilities for children across the autistic spectrum in West Lothian. The decision on Mr and Mrs A's case effectively became part of the overall decision, and the request by Mr and Mrs A was asking the Committee to breach the Council's policy.

15. Councillor Morrice added that the Director of Education and Cultural Services had, having heard the deputation, re-affirmed her recommendation to refuse the request for funding. If, however, she had recommended granting the request then that recommendation would have been given full consideration by the respondents.

16. This item - in respect of which the Committee had resolved to exclude the public - concluded with a vote on the matter. The motion was "To approve the recommendations in the report and the additional recommendation by the Director of Education and Cultural Services that the Committee refuse the request to fund the "Son-Rise" programme as outlined by the Deputation" and was moved by Councillor Bartholomew and seconded by Councillor Mutch (two of the respondents). The amendment was "To bring back in three months time, a further report on an assessment conducted by Education Officers, of the progress made by the child on the "Son-Rise" programme" (as the parents intended to continue to fund the programme themselves). To also attempt to find out from other Local Authorities what progress or evaluation had been made by participants, if any, on the "Son-Rise" Programme" and was moved by Councillor Kerr (Conservative member) and seconded by Councillor Maclean (Independent member). The motion was approved by 15 votes to 6 and became the decision of the meeting.

17. Both Councillor Morrice and Councillor Bartholomew stated that they were satisfied that all the correct procedures were followed in this case and that there was no breach of the Code. They expressed the view however that the deputation system may not be the most efficient way of dealing with individual issues and that the Council should look at different ways of allowing individuals to address Committees.

18. The Council's Monitoring Officer expressed the view that the decision of the Committee met the needs of West Lothian's children on the autistic spectrum, as opposed to meeting those needs through the facilities available at another school was a policy matter relating to how best to use the council resources to meet the special needs of such children. As such, it was a matter on which the whip could be applied by a political group on the council. Policy matters invariably affect the interests of individuals, but are not for that reason banned from being whipped under Standing Order 17. This Standing Order makes it clear that whipping is not allowed where individuals have the right to be heard, and that Standing Order 17 does not apply to deputations. Since the presentation by Mr and Mrs A was by way of a deputation, they did not have the right to be heard and the ban on whipping did not apply. The Director's report and its two recommendations dealt in policy terms with the merits or otherwise of the council supporting and funding the 'Son-Rise' programme and, then, having heard the deputation, the Director made a further recommendation that the parent's request for funding be refused i.e. that there was nothing put forward in the deputation to persuade her to depart from the policy recommendations contained in her report. The Committee therefore heard the deputation and reports, both written and verbal by the Director before reaching a decision. There was, therefore, no breach of Standing Order 13(7).

19. This case deals with the sensitive issue of an autistic child whose parents are determined that he should receive the best education possible. The Council share that wish but - unfortunately as can happen - the parents and the Council are not agreed on how that is to be achieved.

20. Having considered the whole circumstances of this complaint, I have found that the request by Mr and Mrs A for a home-based education programme for their son was properly dealt with by the Council at the Committee meeting on 7th October 2004 by way of deputation and that the Administration were entitled - as they did - to apply the whip requiring members of the Administration to vote - again as they did - in line with Council policy.

21. I have also found that the request by Mr and Mrs A was given careful consideration by the Committee which met in private and which took some two hours to deal with the relevant item of business, including hearing the deputation and receiving both written and verbal reports from the Director of Education recommending that the request for funding be refused and making the final decision.

22. Having reached these conclusions, it is fully appreciated that Mr and Mrs A felt aggrieved having learned that the Administration had agreed a whip in advance to refuse the request and that, to them, the whole process of the deputation had been pre-determined and was, therefore, a waste of time. The Administration have stated that, although the decision was taken to refuse the request in line with policy, they would have given full consideration to any recommendation by the Director of Education to approve the request. This, however, was not clear to Mr and Mrs A and I therefore recommend that, in any future cases, the extent to which the whip will be applied - or indeed potentially varied - should be made clear to any deputation before their presentation commences. The Council may also wish to consider reviewing their Standing Orders for the purpose.

23. I also consider that - whilst it is the case that the Committee had the authority to decide the request - it may have been more sensitive and less stressful for Mr and Mrs A for the deputation to have been heard by a smaller sub-committee (rather than the full Committee) particularly bearing in mind the personal details that were necessarily a part of Mr and Mrs A's presentation. Again, the Council may wish to consider this for the future.

24. Accordingly, I have decided that the respondents did not contravene the Councillors' Code of Conduct in terms of these complaints and I find to that effect.

D Stuart Allan,
Chief Investigating Officer.
Forsyth House
Innova Campus
Rosyth Europarc
Rosyth
Fife
KY11 2UU
26 February 2004