Judge rules ethical watchdog unlawfully blocked evidence from councillor’s misconduct case

Lord Sandison found the Standards Commission for Scotland had no lawful basis for excluding documents that Fiona Higgins argued were central to her defence over social media posts criticising a former Glasgow City Council finance director.

Ms Higgins is facing a misconduct hearing over comments made after she obtained internal council emails through freedom of information laws. She accused the former finance director of abusing influence to “wilfully and cynically mislead councillors and the public” over proposed cuts to teacher numbers.

She argued that the documents supported her position that the comments were protected by Article 10 of the European Convention on Human Rights, which guarantees freedom of expression.

Lord Sandison said the factual circumstances surrounding the post would be important in assessing that defence and found that seven of the disputed documents were potentially relevant.

He said the Standards Commission had “shut its ears” to Ms Higgins’ proposed submissions by preventing her from using the material at the substantive hearing.

“By refusing to allow the productions in issue to be used at the substantive hearing, the commission was not allowing the petitioner to be properly heard. It had shut its ears to her proposed submissions and in so doing acted unlawfully.”

The judge said excluding potentially relevant evidence also risked creating the impression that the matter had been “pre-judged” and found that some of the commission’s decisions had “no logic to them, and were therefore irrational”.

The documents include emails concerning how proposed education budget cuts were presented to councillors, as well as material on the potential impact of teacher cuts on Scottish government funding and programmes for disadvantaged young people.

The commission had previously rejected Ms Higgins’ request to reconsider its decision, saying the documents were not directly relevant to whether her social media post breached the Councillors’ Code of Conduct.

Lord Sandison disagreed in relation to seven documents, finding that an email chain concerning presentation of the budget was “potentially relevant” to establishing what happened and who was involved in the decisions.

He said this “must inevitably feed into the Article 10 aspects of the question” before the commission.

The judge also found that material concerning the potential significance of the proposed education cuts could be relevant to the proportionality assessment required under Article 10. He rejected the challenge in relation to several other documents, including a duplicate of Ms Higgins’ original X post.

Lord Sandison said that, when excluding evidence from a substantive hearing, “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

He said substantial doubt over whether evidence was relevant should normally be resolved in favour of admitting it, subject to proportionality.

The judgment does not determine whether Ms Higgins breached the code. Instead, it determines what evidence the Standards Commission must be allowed to consider when it hears the case.

Peter Watson, solicitor advocate for Ms Higgins, described the ruling as an “important outcome both for Fiona Higgins personally and for the principle that those facing disciplinary proceedings before public bodies are entitled to place before the decision-maker the evidence they consider material to their defence”.

Ms Higgins said: “I have always maintained I am entitled to a fair hearing and that the documents I sought to rely upon were directly relevant to my position. The court has agreed with that assessment in respect of the key documents. I look forward now to the opportunity to present my full case before the Standards Commission with those documents in place.”