At a recent meeting Edinburgh councillors from all parties agreed a no confidence motion in the Standards Commission, the body which formally hears any complaints about elected members.
The Standards Commission for Scotland has now responded saying that they believe councillors can carry out their duties and scrutinise effectively without breaching the Councillors’ Code of Conduct – the code which provides that elected members must behave with courtesy and respect, and that they must not undermine any employee in public.
Edinburgh councillors, within their debate, quite rightly raised the importance of being able to scrutinise their organisation’s performance and the actions of council officers.
The Standards Commission believes that it is possible for all elected councillors to carry out their vital scrutiny role without breaching the Councillor’s Code of Conduct; a Code, approved by the Scottish Parliament, which every councillor commits to upholding when they accept office.
The Code states that councillors must treat everyone with courtesy and respect, and that they must not undermine any individual employee or group of employees, or raise concerns about their performance, conduct or capability in public. We maintain that any councillor can scrutinise effectively without breaching these two elements of the Code.
The Standards Commission notes that the vast majority of complaints made to the Ethical Standards Commissioner about councillors are made by fellow councillors and members of the public. Only a very small percentage are made by council officers.
We note that speakers within the debate referenced the Commission’s decision to appeal the recent judgement by Lord Sandison at Judicial Review. This is not a decision which we took lightly. However members of the Commission believe that further clarity is required because we are concerned about the impact it could have on our ability to run fair, proportionate and efficient hearings. We are also concerned that the judgement has wider serious implications for other organisations that regulate the conduct of individuals. Unfortunately, we consider the only way that we can gain that clarity is through lodging an appeal.
Councillors also raised concerns about feeling threatened, by their own council officers, with being reported to the Ethical Standards Commissioner if they exercise their scrutiny function.
The Standards Commission has been made aware of these concerns, and this is an issue which councillors need to address within their own organisations, with their senior staff teams. The responsibility for council culture is a shared one and a partnership between councillors and their officers.
We note that Edinburgh Council is to ask COSLA to request a review into Scotland’s ethical standards framework and the work of both the Ethical Standards Commissioner and the Standards Commission, and we would of course be happy to contribute to any review should one be held.
Cllr Adam Nols-McVey, who proposed the no confidence motion to the council, said: “The Standards Commission’s response is, as expected, completely tone deaf to the issues.
“It’s telling that nobody in the Standards Commission was willing to put their name to this statement. The reality is: time’s up for them.
“Apart from their inability to protect the public and let democracy function, it’s now emerged that they’re deleting case files which also needs to be properly investigated. Unfortunately they are not fit for purpose and not fit to oversee public life in Scotland.
“More councils and COSLA are set to debate this in the coming weeks and I can see nothing that they’re doing to show they understand the seriousness of the situation. They are not willing or able to reform their approach.”
Vote of no confidence
Cllr Nols-McVey tabled a motion of no confidence prompted by a Court of Session case involving Glasgow councillor, Fiona Higgins, who had penned a social media message stating that a council officer had not told the truth – and the Standards Commission found that to be a breach of the councillors’ code of conduct.
But Cllr Nols-McVey explained to councillors that the information was not actually true.
The judge, Lord Sandison said at the judicial review that the Standards Commission had not acted within its powers when it prevented Cllr Higgins from tabling documents as evidence in a case about her possible misconduct. He said that Cllr Higgins case was not properly heard. This judicial review is now being appealed by the Standards Commission.
After a short debate Edinburgh Council agreed: “2.1 Edinburgh formally declares it has no confidence in the Ethical Standards Commissioner and the Standards Commission.
2.2 Council agrees that this case shows that the Standards Commission failed in its duty to give a councillor a fair hearing by allowing the submission of relevant evidence in her defence and, by doing so, potentially restricted her rights to article 10 ‘Freedom of Speech’ and her ability to stand up for the residents who elected her.
2.3 Council notes the work being undertaken through COSLA to discuss this matter via a report at the next COSLA leaders meeting and instructs the Council Leader to respond to that report by setting out that the Council has no confidence in the Ethical Standards Commissioner and Standards Commission, and to invite other local authorities to support that position in order to build momentum for change.
2.4 Further notes that the outcome of the Judicial Review brought by Cllr Fiona Higgins against the Standards Commission has been appealed by the Standards Commission and requests the Leader of the Council also raises at COSLA the need for a review into cases where the Standards Commission has investigated Councillors for carrying out scrutiny into Council decisions, or proposals by officers; and that any outcome be remitted to Council for consideration.
2.5 Finally, instructs the Council Leader to write to the First Minister to call for a thorough review by the Scottish Government of the roles of the Ethical Standards Commissioner and the Standards Commission and of the purpose and application of the Code of Conduct as it relates to democratically elected councillors, so that it instils public trust, upholds and protects democratic values and the Nolan principles, and does not unreasonably and disproportionately restrict the ability of councillors to represent residents on issues affecting their local community.”
Chamber discussion
Cllr Nols-McVey opened the discussion in the City Chambers saying that the body’s position is now untenable, and they have “fallen so irretrievably far from delivering” their job – which is to uphold the Nolan principles of public life. These encompass duties of any elected member of a council or government as well as the civil service and policing. The duties include acting with objectivity, openness, integrity and honesty.
The Edinburgh Council Leader has been asked by councillors to write to the First Minister to call on the government to dissolve the Standards Commission, but to replace it with a body which can “instil public trust, protect the public and democratic values and uphold the Nolan principles of public service”.
During the debate – the current Council Leader, Cllr Jane Meagher, said: “It is important to note that the Court of Session found the Standards Commission had acted unlawfully in refusing to admit certain evidence to be considered at a hearing. We recognise that concerns have been expressed across local government regarding the impact of the case on democratic accountability, on freedom of expression, and the ability of elected members to scrutinise decisions and represent constituents effectively, and I know this is something that all of us will share across this chamber.”
The Labour administration raised the matter of a possible appeal on the Judicial Review case and noted that a report will be made to the Local Authority body, COSLA at their next meeting.
Cllr Phil Doggart (Conservative), said: “I do have a concern that what we have seen from the Standards Commissioner recently is a reflection of a wider problem in public life in Scotland.
“I think you only need to look at some of the evidence that’s been given at the NHS Tayside inquiry to see that there are concerns about those who think they are unaccountable, and that is a significant worry that our institutions can feel, and there is no willingness to accept individual responsibility.
“We have also seen that in Holyrood recently, where some of the performances at committee have been appalling, not taking our responsibilities seriously.
“It’s important that we can exercise our duties without fear of pressure from officers, without fear of, dare I say, bullying from officers, because going to the Standards Commission is nothing that any of us want to do. I was reported last year. I didn’t know what was in that email when I saw it. I was cleared. That was fine for something I had said in here that the commissioner said was an exercise of scrutiny.
“But the problem is that if officers hang the threat of a Standards report over our heads, we cannot do our job properly, and that is an imbalance which we need to redress.”
Response
The Standards Commission batted back any concerns that Edinburgh councillors have about their own organisation and feeling threatened by a referral to the Commission. In their statement the body acknowledges that the Commission has been made aware of concerns by councillors who are threatened by their own council officers about being reported to the Ethical Standards Commissioner.
The Standards Commission say that this matter needs to be “addressed within their own organisations”.
Debate
Cllr Jack Caldwell, (Liberal Democrats) said in the City Chamber: “We are to serve our constituents without fear or favour. I’m aware from conversations I’ve had my four years of councillor that there are councillors across the spectrum who are in fear of being able to do their duties. I don’t believe that is acceptable at all, as we represent our constituents.
“As a member of the Licensing Sub Committee, I’m very aware that giving a fair hearing is of the utmost importance of what we do. We must come to a measured judgment on all matters, and there are times in this chamber, where I have been concerned that perhaps we’ve came close to overstepping that line in terms of scrutiny.”
Conservative councillor Joanna Mowat added that this matter is not new to her, pointing out that a call for a new way of dealing with the scrutiny of elected members at all levels was included in the Conservative manifesto ahead of The Scottish Parliamentary election.
She said: “This is a concern not only for councillors in this chamber, but across councillors across Scotland. It has been a matter of such concern that it made it into the Conservative manifesto for Holyrood that we would have to review the Standards Commission because too often we were getting examples of people in other councils being told if they pursued that line of questioning, they would be reported to the Standards Commission.”
Cllr Mowat also went on to lament the lack of openness at the Commission where decisions are made without transparency. She said: “No one knows quite where the lines are, and that is not a system in which councillors or officers can safely operate in.”
Complaints about councillors
In the first place complaints, which can be made by anyone, are made to the Ethical Standards Commissioner (ESC) through an online form. The complaint must centre on a potential breach of the Code of Conduct which has happened in the last 12 months.
If the complaint is judged appropriate then the ESC investigates and writes a report for the Standards Commission for Scotland.
It is then up to the Standards Commission to decide whether or not to take action.
