Borders councillor cleared by Standards Commission

by OUR LOCAL GOVERNMENT EDITOR

An unnamed member of Scottish Borders Council did not breach the councillors' code of conduct, a 16-month investigation by the Standards Commission for Scotland has concluded. A complaint lodged against the councillor in question has been dismissed.

Details of the case are contained in a written decision issued by the Commission's executive director Lorna Johnston. 

The report shows that following his investigation into a complaint received in October 2022 concerning an alleged contravention of the versions of the Councillors’ Code of Conduct by an elected member of Scottish Borders Council (the respondent), the Ethical Standards Commissioner [ESC] referred the matter to the Standards Commission on February 22nd 2024. 

The complaint concerned an allegation that the respondent had failed to declare an interest at two meetings of the Council’s Common Good Fund Sub Committee, held on November 17th 2021 and  November 23rd 2022. The complaint also claimed that the respondent may have accepted a free or reduced-price pitch at a local event held by a local company on common good land, in contravention of the code’s provisions regarding gifts and hospitality.

In his report, Ian Bruce, the ESC advised that he had found: "The respondent had been able to demonstrate that payments were made by his business to the local company for pitches at events in 2018, 2019 and 2022. As such, there was no evidence that any gifts or hospitality had been received. There was also no evidence to suggest that the respondent had sought any preferential treatment for his company."

 The ESC added that while the local company had benefited from the council’s policy not to charge certain organisations for the use of common good land, there was no evidence of a connection between the respondent (and his business) and the local company that went beyond what might be expected of local businesses. 

"In any event, the respondent had paid for his pitch and, therefore, any benefit enjoyed by the local company as a result of the council’s decision was not passed on to him."

The investigation also concluded: "While the respondent knew some of the directors of the local company and that his business had paid for pitches at an event run by it, there was no evidence of any other connection. 

"As such, the ESC was unable to conclude that a member of the public, with knowledge of the relevant facts, would reasonably regard the respondent’s connection as so significant that it would be likely to prejudice his discussion or decision-making at either meeting. The ESC indicated, therefore, that he did not consider that the Respondent had been required to declare an interest at either meeting.

"Having considered the various factors of the complaint and the evidence gathered, the ESC concluded that the respondent’s conduct did not amount to a breach of the code."

After considering the terms of his referral, the Standards Commission did not consider that it was necessary or appropriate to direct the ESC to undertake any further investigation into the matter.

Ms Johnston explains that in making a decision about whether to hold a hearing, the Standards Commission took into account both public interest and proportionality considerations

In assessing the public interest, the Standards Commission noted that a breach of the provisions in the code that required councillors to declare certain interests and to refrain from accepting certain gifts and hospitality could bring the role of a councillor and the council itself into disrepute. 

"In this case, however, the Standards Commission was of the view that, on the face of it, there was no evidence of any such breach of the code. The Standards Commission noted that holding a hearing (with the associated publicity) could promote the provisions of the code and, therefore, there could be some limited public interest in holding a hearing." 

The Commission noted, however, that the option to take no action had been included in legislation to ensure that neither the ethical standards framework, nor the Standards Commission, was brought into disrepute by spending public funds on administrative or legal processes in cases that did not, on balance, warrant such action. 

"In considering proportionality, the Standards Commission noted that the ESC, in his referral, had reached the conclusion that the respondent’s conduct did not amount, on the face of it, to a breach of the code. Having reviewed the evidence before it, the Standards Commission found no reason to depart from that conclusion. 

"Having taken into account the above factors, and in particular the fact that it is not satisfied, on the face of it, that the conduct as established could amount to a breach of the code, the Standards Commission concluded that it was neither proportionate, nor in the public interest, for it to hold a hearing."