Exclusive: Standards Commission for Scotland prevails in first substantive appeal against one of its decisions

The case concerned a councillor who was suspended for making inappropriate remarks to a taxi driver seeking to renew his licence.

David MacDiarmid said to the applicant, WH, that he did not “understand why two women would live with you never mind get married to you” and that “I think this man is a bully and I don’t want bullies driving people around in taxis in Fife”, at a meeting of the council’s Regulation and Licensing Committee on 15 December 2015. His application was refused, with the committee finding that he was not a fit and proper person to hold a licence.

WH’s application for renewal had prompted a letter from Police Scotland, which was not an objection to his application, but detailed allegations of violence, controlling and abusive behaviour and stalking in relation to his relationship with his estranged wife and stepson.

WH appealed the decision to the Sheriff Court. The sheriff at Kirkcaldy allowed the appeal on the basis, among other things, that the committee had acted contrary to natural justice. The sheriff reversed the committee’s decision and ordered Fife Council to grant WH a licence immediately.

WH then complained about Mr MacDiarmid to the Commissioner for Ethical Standards in Public Life in Scotland, who found that he had fallen foul of the Councillors’ Code of Conduct. The commissioner submitted a report to the Standards Commission for Scotland, whose panel also found that Mr MacDiarmid had breached the code and suspended him for two months from the committee from 23 May 2018.

Mr MacDiarmid challenged that decision in an appeal.

Senior counsel for the appellant, Mungo Bovey QC, instructed by Scott Martin, the solicitor for the Scottish National Party, argued that the panel had failed to make appropriate and adequate findings both about what Mr MacDiarmid had said and the context in which it was said.

He also said that the panel erred in deciding Mr MacDiarmid’s remarks did not benefit from the enhanced protection afforded to politicians by article 10 of the European Convention on Human Rights, which deals with freedom of expression. That protection applies to political comments, commercial observations or remarks made in the public interest

Senior counsel for the respondent, Mark Lindsay QC, instructed by Shepherd and Wedderburn, said that the panel had made adequate and comprehensible findings in fact, in particular as to what was said and the context in which it was said.

Sheriff Principal Marysia Lewis, at Perth Sheriff Court, said in her decision: “The panel was meticulous in its assessment of the comment noted by the officers and the context in which the comments were made.”

On the issue of the enhanced protection under article 10, she added: “It is abundantly clear that the comments were made in the course of determining an application for renewal of a taxi driver’s licence, a quasi-judicial setting – not the debating chamber of the council or in any other forum. There is nothing in the material before me suggestive of the appellant indulging in political commentary, or engaging in commercial observation or discussing council policy or matters of public concern.”

Convener of the Standards Commission for Scotland, Kevin Dunion, told Scottish Legal News: “In recent times the Standards Commission has held a number of Hearings which have resulted in the censure or suspension of Councillors for offensive statements made in person or online so we welcome the Sheriff’s comprehensive decision in this case, which upholds the Standards Commission approach to balancing the right of freedom of expression with the requirements of the Councillors Code of Conduct.

“In particular, it should be noted that when acting in a quasi-judicial capacity the enhanced protection for political comment is less likely to be engaged.”