Information on Investigations

Which Sector? > Local Authorities > West Lothian Council > LA/WL/726

Note Of Decision Web Version

Complaint no. LA/WL/726 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Tom Kerr of West Lothian Council

1. Complaint number LA/WL/726 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Tom Kerr (“the respondent”).

2. It was alleged that the respondent had contravened the Code, in particular, the key principles of Leadership and Respect set out in section 2 of the Code, and the provisions in section 3 on Conduct in the Chamber or in Committee.

3. Councillor Neil Findlay, (“the complainant”), alleged that when chairing a meeting of the Council on 25 March 2008 the respondent (first allegation) failed to comply with Council Standing Orders by refusing to allow members an opportunity to put questions to a deputation, and subsequently ruling that a related motion by the complainant was out of order; (second allegation) acted outwith Standing Orders and showed political bias in his consideration of the complainant as having left his seat during the course of the meeting; (third allegation) acted outwith Standing Orders by imposing a time limit for explanation of a challenge by the complainant to a ruling from the Chair; and (fourth allegation) showed political bias in his allocation of time allowed for response and supplementary questions. The complainant also alleged that (fifth allegation) the respondent had threatened him with expulsion without good cause.

4. The issues raised by this complaint related essentially to the powers given to the Chair under the Council’s Standing Orders to ensure the efficient and equitable conduct of business.  The personal experience and character of the Chair will of course influence their effectiveness in this role and it is self-evident that good chairmanship will contribute to the public perception of the Council.  I noted that in this case the respondent had sixteen years of experience and as the sole Conservative member on the Council he could offer a degree of independence in a political environment.

5. Council Standing Orders are not part of the Councillors’ Code of Conduct, although both may be breached by some forms of conduct.  It is of course desirable that elected members observe their own internal regulatory framework and that resort to the Code should only occur in extreme circumstances. In this connection, paragraphs 32 to 40 of the Standard Commission’s Guidance Note to Councillors and Local Authorities are particularly relevant and helpful.

6. In this case it was evident that a degree of frustration has built up between the complainant who felt that his role as a ward councillor was being constrained by the respondent’s application of Standing Orders, and the respondent who perceived that the complainant was persistently testing his patience and detracting from the smooth conduct of business.  I was pleased to note however that this tension did not extend to their personal relationship and was confined to interaction within the context of Council meetings.  I then considered the specific components of the complaint.

7. First Allegation:  Two related items were included on the agenda – a deputation from the Willow Wood Residents Association and a motion by the complainant.  Given that these essentially covered the same ground, and that the complainant was fully aware of the deputation, I was bound to conclude that the submission of his notice of motion was intended further to highlight the issue by prompting discussion at two points on the agenda.  No exception could be taken to this course of action but the effect was to cause a procedural complication which led to the respondent making a ruling that no questions could be put to the deputation due to the complainant’s motion which was to be considered at a later point on the agenda.  While this was acknowledged as an error by the respondent, and could have understandably confused or disappointed the members of the public who had addressed the members, I did not consider that any deliberate motivation to frustrate debate on the issue could be attributed to the respondent’s actions.  The fact was that a procedure had been put in place by the Council for the creation of additional footpaths, a request for the Willow Wood footpath was being considered with others for funding priority, and the matter was therefore already in hand. 

8. In making his statement that no questions or discussion would be permitted after the delegation had been heard, the respondent may well have given rise to an impression on the part of members that these were being deferred until the complainant’s notice of motion was heard.  Given that the motion had not been withdrawn and remained on the agenda it was difficult to see how procedurally this could have been handled differently.  If the deputation and motion, which so obviously related to the same issue, could have been taken together, this would have allowed the respondent to clarify his ruling and avoid giving an impression of deliberately preventing any discussion on either item. 

9. The refusal of the respondent to accept the complainant’s motion was correct in terms of Standing Orders, and the complainant, as was his right, challenged that decision.  Procedure was correctly followed in putting the challenge to the vote.  The respondent subsequently reviewed his earlier decision on not allowing questions to the deputation and tendered an apology to members.  It was a matter for the respondent as to whether he considered it necessary or appropriate to extend this apology to the Residents Association but I did not consider that his failure to explain his actions, or issue such an apology, were such as to constitute a breach of section 3.14, or the key principles of Leadership or Respect contained in section 2 of the Code, and I found accordingly. 

10. Second Allegation: This element of the complaint related to the conduct of Council meetings and whether the occasional departure of members from their seats or the Chamber should be permitted.  Practicality requires that from time to time it may be necessary for members to leave their seats and it will be desirable to ensure that this does not cause unacceptable disruption.  In some instances merely seeking permission to leave their seats could interrupt the flow of debate and a discreet withdrawal will be preferable; in others courtesy to the Chair will make a brief apology appropriate.  Clearly repeated departures and returns, or asides to members of the public, Council officers or others present, will be distracting and can lead to an impression of inattention to the point under discussion.  In general excessive movement of this nature should be discouraged and adoption of an agreed protocol would assist in maintaining consistency in this respect. 

11. In this case the complainant alleged that he had been subject to excessive critical attention by the respondent, and further that a lack of consistency in dealing with members who left their seats may indicate political bias.  On the former point I was not persuaded that the respondent’s intervention was anything other than a reasonable enquiry as to whether the complainant was still participating in the debate, possibly exacerbated by a misunderstanding as to the complainant’s intentions either to leave or to remain in the Chamber. On the latter point no evidence was adduced to allow me to reach a justifiable conclusion of bias.  Accordingly I found that the respondent had not breached section 3.14 or the key principles of Leadership or Respect contained in section 2 of the Code.

12. Third Allegation:  In making this allegation the complainant questioned whether the respondent was entitled to impose a ruling on the duration of the explanation of his challenge which went beyond the terms of Standing Orders. It is not part of my role to interpret Council Standing Orders but I was bound to note that Standing Order 11 refers, without specifying a time limit, that the explanation of challenges should be made ‘briefly’.  To expedite business this appeared appropriate and the imposition of a time constraint, if indeed this occurred, was in line with the respondent’s duty under Standing Order 10(3) to ensure the proper and timely conduct of the meeting.

13. The respondent invited me to consider his response to the complainant in the context of the latter’s repeated challenges to his rulings.  While I had sympathy with this sentiment it is an inherent role of the Chair to consider each contribution on its own merits and not allow reaction to one intervention on one issue to intrude on the consideration of a separate matter, or indeed to allow the manner of a member’s contribution to detract from a balanced and consistent response from the Chair.  I did not however consider that the imposition of a limit on the complainant’s explanation of his challenge breached section 3.14 or the key principles of Leadership or Respect contained in section 2 of the Code, and I found accordingly.

14. Fourth Allegation:  The allegation here was that by allowing the Executive Councillor for Social Policy to make a verbal response to the complainant’s questions, and then curtailing the latter’s supplementary questions, the respondent had again breached Standing Orders.  At interview he expanded on this by suggesting that political bias was being demonstrated. 

15. Clearly in both responding to and asking questions there is scope for members to use delaying tactics or obfuscate.  It is the role of the Chair to recognise and control such conduct whether it be intentional or otherwise.  Standing Orders assist by imposing a time limit but this will always be influenced by the complexity of the issue and the degree to which the speaker is interrupted.  Some element of discretion must be applied by the Chair to ensure the proper consideration of business with the thirty minute overall time limit being a guideline.  In the circumstances outlined in this case, and having regard to the notes taken by the Committee Officer which indicated a number of interruptions, I did not consider that the lack of observance to strict adherence with the time limit imposed by Standing Orders, or the curtailment of the complainant’s supplementary questioning could be regarded as demonstrating bias or breaching section 3.14, or the key principles, of Leadership and Respect contained in section 2 of the Code.  I found accordingly.

16. Fifth Allegation:  The final aspect of this complaint related to alleged threats to exclude the complainant from Council meetings.  Unspecific reference was made to alleged threats of this nature, together with alleged urging to the respondent from other un-named members to that effect.  No evidence of specific instances was adduced however and I noted firstly that the Monitoring Officer had no recollection of the respondent making any such threat to exclude the complainant, and secondly that the procedure laid down in Standing Orders required a reasoned and seconded motion and vote which, if successful, results not in exclusion but the withdrawal of the member from the remainder of the meeting concerned.  In the absence of any specific evidence I made no finding on this aspect of the complaint.

Additional Comment

17. The Standards Commission’s Guidance Note (to which reference has already been made) provides helpful advice relating to the Conduct in the Chamber or in Committee. Paragraph 35 of the Note deals with the role of the Chair and provides:

“35 The role of the chair in any Council meeting, which includes a Committee meeting or a meeting of a working group or similar forum, is to ensure that the agenda of business is properly dealt with and clear decisions are reached. To do this the chair has a responsibility to ensure that the views and opinions of other participants (including the advice of officers) are allowed to be expressed and that these contribute to the outcomes of the meeting. At the same time the chair has a responsibility for proper and timely conduct of the meeting which can sometimes mean expediting the business on the agenda and reaching a judgement on the fairness and sufficiency of debate. This includes determining the point at which conclusions should be reached. It requires a balanced approach to ensure fairness to participants while at the same time dealing firmly with any attempt to disrupt or unnecessarily delay the meeting. Members present share the responsibility for the proper and expeditious discharge of business and the role of the chair in reaching such judgements requires to be supported and respected.”

18. Effectively, in this case, I was asked to second guess the decisions of the Chair and that was inappropriate. Only in exceptional cases, should it be necessary to refer such complaints for investigation; whenever possible members of the Council should seek to resolve any difficulties in the application of Standing Orders at their own hand.

19. Having considered the information that arose from my investigation, I concluded that Councillor Tom Kerr had not contravened the Councillors’ Code of Conduct.

D Stuart Allan

Chief Investigating Officer

Forsyth House

Innova Campus

Rosyth Europarc

Rosyth

KY11 2UU

28 July 2008