Complaint Number: LA/I/2010
Date case started: 23 Feb 2017
Decision issued: 30 Jun 2017
Allegation against: Councillor Stephen McCabe
Complaint Categories: 3.1, 3.2
Nature of allegation
Breach of the provisions in the Councillors’ Code of Conduct set out in section 3 (General Conduct) of the Code.
Decision by Commissioner
Decision that Councillor Stephen McCabe had not contravened the Councillors’ Code of Conduct.
Complaint no. LA/I/2010 concerning an alleged contravention of the Councillors’ Code of Conduct by Councillor Stephen McCabe of Inverclyde Council
1. Complaint number LA/I/2010 alleged a contravention of the Councillors’ Code of Conduct (“the Code”) by Councillor Stephen McCabe (“the respondent”).
2. It was alleged that the respondent hadcontravened the Code, in particular, paragraphs 3.1 and 3.2 dealing with general conduct.
3. The person complaining (“the complainer”) Councillor Jim MacLeod alleged that during a debate on the nomination of a councillor to the Greater Glasgow and Clyde Health Board, the respondent made defamatory remarks about the leader of the SNP group and insinuated that he would engage in an illegal act of influencing a government minister in connection with the nomination.
4. The events alleged to have occurred took place during a meeting of the full Council on 29 September 2016, during a debate on the Council’s nomination for an appointment of an elected member to the Greater Glasgow and Clyde NHS Board. The criteria for nomination for membership restricted the field to the Leader or Depute Leader of the Council and the Convener of the council’s Health and Social Care Committee. At the time of the meeting in September 2016, none of those post-holders included any member of the SNP group on the Council.
5. It appeared that the SNP group, as an amendment to the proposed nomination, nominated a member of their group. During a debate on this issue, the respondent was heard to make comments about the leader of the SNP group and to allude to improper influence over the appointment to the NHS Board
6. The respondent also made disrespectful comments towards the leader of the SNP group during the same debate.
7. I had to consider whether the behaviour of the respondent amounted to a breach of the Code.
8. The allegation was that the respondent showed disrespect towards the leader of the SNP group by alluding to possible improper behaviour by influencing a Scottish Minister in the appointment to a Health Board, and showed disrespect by referring to him as ‘a stupid wee boy’, contrary to paragraph 3.2 of the Code.
9. In this regard, I made the following findings of fact:
· the respondent spoke during a debate on the nomination of an elected member for appointment to the Greater Glasgow and Clyde NHS Board at a meeting of the Council on 29 September 2016;
· during this debate, the respondent uttered the following words, identifying Councillor X (the leader of the SNP group) “will give a nod and a wink to the Government Minister and go behind closed doors to nobble the process”;
· during the same debate, the respondent when addressing the leader of the SNP group referred to him as “a stupid wee boy” and thereafter said “shut up son, you’re just a daft wee boy”;
· on 3 October 2016 the Monitoring Officer wrote to the respondent referring to the meeting on 29 September and advising him that his comments did not meet the standards set out in the Councillors’ Code;
· the respondent conceded in a response to the Monitoring Officer that his comments regarding the leader of the SNP group should not be taken to imply any impropriety. He also claimed that he was attempting to caution the Council that, if the SNP amendment was accepted, the SNP leader would have had to use his considerable political influence to persuade the Minister to accept the nomination, as this would be contrary to NHS guidelines;
· the respondent admitted using the words, “a stupid wee boy” and “shut up son, you’re just a daft wee boy”;
· the respondent offered an apology to the Provost and the Council in an email addressed to the Monitoring Officer on 3 October 2016;
· the email containing the apology has not been issued to the SNP group despite requests for the same.
10. Paragraph 3.2 of the Code requires a councillor to respect the Chair, his colleagues and any members of the public present during meetings of the Council and to comply with rulings from the Chair and the conduct of the business of these meetings. On this occasion, the debate as described by the Monitoring Officer was robust and emotions were running high.
11. There appeared to be no dispute as to what the respondent said, either in relation to the relationship between the leader of the SNP group and the Scottish Minister, or the comments about the SNP leader. In such circumstances, I required to consider whether the words used and the import of such words could be considered as being disrespectful and to whom.
12. In political debates, there are often examples of robust exchanges between councillors. In such circumstances a degree of latitude may be afforded to the parties in relation to the language used. In this particular case, the respondent clarified his comments in the response to the MO. He conceded that his comments could have been presented in a better way. I considered the words used and assessed their import in the context of what was accepted as a heated debate. The words were not, in themselves, offensive. The supposed relationship between the leader of a political group and government ministers belonging to the same political party can reasonably be considered to be “political expression”. The term is defined in judgements of the European Court of Human Rights in decisions relating to freedom of speech under Article 10 of the European Convention on Human Rights. I did not, therefore, consider that the respondent’s behaviour in uttering these words could be regarded as so disrespectful as to amount to a breach of paragraph 3.2 of the Code.
13. The respondent also made disrespectful remarks about the SNP leader using the words, “a stupid wee boy” and later, “shut up son, you’re just a daft wee boy”. I was satisfied that these words were uttered by the respondent, who admitted using them in the debate on the appointment of a councillor to the Greater Glasgow and Clyde NHS Board at the council meeting held on 29 September 2016.
14. These words, when spoken by the respondent and referring to a senior politician, displayed a degree of disrespect. As with the remarks referred to at bullet point two of paragraph 9 above, I was required to assess the words in the context of when they were used.
15. When considering statements made by councillors in a political environment which appear to be disrespectful, it is necessary to consider whether the latitude afforded to politicians under Article 10 of the European Convention on Human Rights would offer a degree of protection.
16. There is a considerable volume of case law on what constitutes language to which Article 10 protection can be given. In Heesom v The Public Services Ombudsman for Wales  EWHC 1504, the judge considered that: “in the political context a degree of the immoderate, offensive, shocking, exaggerated, provocative, polemical, colourful, emotive, non rational and aggressive, that would not be acceptable outside that context, is tolerated”. Similarly he stated: “[politicians] are expected and required to have thicker skins and have more tolerance to comment than ordinary citizens”. The words used by the respondent in this case were clearly exaggerated, deprecatory and emotive.
17. I also noted that the respondent, having been advised by the Monitoring Officer that the words used did not meet the standards of the Code, immediately responded with an apology, the import of which was thereafter forwarded to the complainers. Such actions went some way to mitigating the behaviour of the respondent and, in the light of the latitude afforded under Article 10 of the ECHR, I concluded, on balance, that the respondent had not breached paragraph 3.2 of the Code.
18. Having considered the information that arose from my investigation, I concluded that, Councillor Stephen McCabe had not contravened the Councillors’ Code of Conduct.
91 Haymarket Terrace
30 June 2017