Complaint Number: LA/CES/1956
Date case started: 25 Nov 2016
Decision issued: 23 May 2017
Allegation against: Councillors Gordon Murray, Charlie Nicolson, Catherine MacDonald, Angus Morrison, Donald Crichton, Iain Mackenzie and John Mackay
Complaint Categories: 5.7, 4.22
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 4 (Registration of Interests) and section 5 (Declaration of Interests) of the Code.
Decision by Commissioner
Decision that Councillors Gordon Murray, Charlie Nicolson, Catherine MacDonald, Angus Morrison, Donald Crichton, Iain Mackenzie and John Mackay had not contravened the Councillors’ Code of Conduct.
NOTE OF DECISION WEB VERSION
Complaint no. LA/CES/1956 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillors Gordon Murray, Charlie Nicolson, Catherine MacDonald, Angus Morrison, Donald Crichton, Iain Mackenzie and John Mackay of the Western Isles Council.
1. Complaint number LA/CES/1956 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) byCouncillors Gordon Murray, Charlie Nicolson, Catherine MacDonald, Angus Morrison, Donald Crichton, Iain Mackenzie and John Mackay (“the respondents”).
2. It was alleged that the respondents hadcontravened the Code, in particular, section 4 (Registration of Interests) and section 5 (Declaration of Interests) of the Code.
3. The person complaining (“the complainer”) lodged the complaint on behalf of the group Families into Sport for Health (FiSH) and alleged that a number of the respondents failed to register an interest in respect of church membership in their Register of Interests, in contravention of section 4 of the Code of Conduct (Registration of Interests). It was also alleged that, at a meeting of the full Council on 5 October 2016, all seven of the respondents failed to declare a non-financial interest, namely their membership of certain churches. Their membership and their religious beliefs were said to have influenced them to vote against Sunday opening of the Ionad Spors Leodhais (ISL) (the sports and leisure centre in Stornoway, Isle of Lewis), so that their failure to declare their interests was in breach of section 5 of the Code of Conduct (Declaration of Interests).
4. In relation to Councillors Murray and MacDonald, there was no evidence that either held any office within their churches. Councillor Murray did not state the extent to which he attended church. Councillor MacDonald stated that she was not the holder of any office within her church. There is no requirement in the Code to register a religious belief and the guidance makes no reference to membership of religious organisations. In regard to paragraph 4.22, it is a matter for the individual councillor to consider whether they should register their non-financial interest.
5. I was satisfied that there was no requirement for Councillor Murray or Councillor MacDonald to register church membership under part 4 of the Code. The other respondents had registered their elderships. I therefore concluded that none of the respondents breached the requirements of part 4 of the Councillors’ Code of Conduct in relation to the meeting of the Council held on 5 October 2016.
6. In terms of section 5 of the Code, councillors are responsible for deciding whether to declare an interest. They must always comply with the objective test in paragraph 5.3. In terms of paragraph 5.7 of the Code, a non-financial interest must be declared if that interest has been registered, or if the interest would fall within the objective test. There is no need to declare an interest which is so remote or insignificant that it could not reasonably be taken to fall within that test.
7. Councillor Murray expressed the opinion in his response that, while religious faith remains important to many people living in the Western Isles, many people of no religious persuasion did not want and did not expect services or facilities to be provided on Sundays. Councillor Murray considered that, as this issue was not an application under section 7 (regulatory or quasi–judicial), he was entitled to give a view on the FiSH campaign. He explained that he listened to the views of the wider community who had spoken to him about the issue, many who held no religious faith but still opposed Sunday opening from a cultural or other perspective, such as securing a work - life balance. He indicated that in the lead up to the meeting he gave serious consideration to the views of his constituents.
8. Councillor MacDonald in her response also stated that she voted against the Sunday opening because the majority of her constituents preferred to keep the status quo.
9. The complainer asserted that the respondents made their decision to vote against the Sunday opening of the sports centre on the basis of historical Sunday policies and, for some, their roles as Elders of the Free Kirk opposed to Sunday opening on religious grounds. The respondents all stated in their individual responses to the complaint that they took into account the details provided in the report by the Chief Executive in regard to the Sunday opening of the sports centre. There was no reference to religious beliefs in the Chief Executive’s report.
10. Specifically, Councillors Nicolson, Morrison, Crichton and Mackenzie all stated in their responses that they took into account the employment, financial and operational implications stated in the Chief Executive’s report in their decision making.
11. Councillor Murray stated that he made an objective assessment of the financial costs and the employment and operational issues. Councillor Macdonald stated in her response that she took into account the views of her constituents and the views of the employees of the sports centre. Councillor Mackay stated in his response that he took into account the operational and employment matters detailed in the report.
12. In relation to Councillors Nicolson, Morrison, Crichton, Mackenzie and Mackay, who had registered an interest by virtue of holding a church office, I found that those registered interests did not, in this context, fall within the objective test as set out in paragraph 5.3 of the Code. In my opinion, the relevant facts included the terms of the Chief Executive’s report and the stated reasoning of the respondents.
13. I did not consider that either Councillor Murray or Councillor Macdonald had a registrable interest. In these circumstances, I was satisfied that any interest which they might have had did not fall within the objective test.
14. The decision before the full Council was not a quasi–judicial or regulatory application under section 7 of the Code. The churches of which the respondents were members had not submitted any representations and were not to derive any benefit from the decision.
15. Having considered the information that arose from my investigation, I concluded that Councillors Gordon Murray, Charlie Nicolson, Catherine MacDonald, Angus Morrison, Donald Crichton, Iain Mackenzie and John Mackay had not contravenedthe Councillors’ Code of Conduct.
91 Haymarket Terrace
23 May 2017