Standards Commission says it is ‘no longer fair, proportionate or in the public interest’ to proceed with new hearing in Comhairle Leader case

In a written decision issued Tuesday, SCS said that it was “no longer fair, proportionate and in the public interest to proceed with a Hearing” in the case, and that the alleged breaches of the code were “of a technical nature” with “no suggestion” that Mr MacKay “had been attempting to conceal the interest nor any suggestion of any adverse consequences as a result”.

The decision notice from SCS stated that following receipt of a complaint in the matter, the Commissioner for Ethical Standards in Public Life in Scotland (ESC), had referred a report to the Standards Commission for Scotland in January 2020, under the terms of the Ethical Standards in Public Life etc. (Scotland) Act 2000 as amended.

The ESC had reported that Cllr MacKay had failed to declare an interest at a full Council meeting on 3 October 2017 when a report from the Council’s Sustainable Development Committee, recommending that the Council authorise its Chief Executive to conclude the financial arrangements to implement the sale or lease amendments for a property, in which relatives of the Cllr MacKay had an interest, was considered.

The ESC reported that while the respondent was a member of the Committee, he had not been present at the meeting when the recommendation was made.

SCS’s decision notice states that the ESC had reported that Cllr MacKay had declared an interest and left the room while an item concerning the property was considered by the Council’s Policy and Resources Committee on 2 October 2018.

The ESC reported that Mr MacKay had also then declared an interest (for the same reason) at a full Council meeting the same day, when the Policy and Resources Committee’s recommendation that a decision on matters concerning the tenancy be deferred, was considered and approved.

The ESC advised, however, that Cllr MacKay had not withdrawn from the room.

The ESC further reported that between 5 May 2017 (when he was first elected as a councillor), and 21 May 2019, Cllr MacKay had failed to register a shareholding in a company, although he had registered that he was a director of that company.

The ESC advised SCS that she had concluded that the Cllr MacKay “had failed to comply with the provisions of the Code” and SCS decided in January 2020, to hold a Hearing.

The Hearing was scheduled to take place on 18 March 2020 at the Council Headquarters in Stornoway,the decision notice states, but that hearing was unable to proceed ‘due to the restrictions on travelling and meeting with others arising from the Coronavirus outbreak’.

The Standards Commission noted that there was ‘public interest’ in the matter and, in particular, in the determination of the question of whether a councillor should have to declare an interest and leave the room at full Council when the Council ‘was only being asked to approve a report from a Committee without debate, but which included a matter on which the councillor had declared an interest’.

SCS concluded that it would normally reschedule any hearing that it had not been able to convene but recognised that rescheduling the hearing in the current circumstances would ‘give rise to issues of fairness and proportionality’, with it being ‘unlikely’ that one could be convened before July 2020, at the earliest, due to the current guidance against travel and public gatherings associated with the ongoing Coronavirus epidemic and the requirement for the Standards Commission to give the parties proper and sufficient notice of any hearing date.

Furthermore, the Standards Commission expressed concern in its decision notice that the ongoing issues arising from the Coronavirus outbreak could ‘easily result’ in further delays, particularly given the uncertainty of the situation and the real risk that any convened hearing may have to be cancelled again.

In its notice of the decision, SCS noted that the original complaint against Cllr MacKay had been made to the ESC in October 2018 and he had been informed that the investigation had been completed in early Autumn 2019.

The Standards Commission noted, however, that the ESC’s final report had not been issued and sent to the Standards Commission until 16 January 2020, meaning that the matter had been outstanding against the Respondent for 17 months.

The Standards Commission stated that it had noted submissions from Cllr MacKay and the Chief Executive concerning ‘the stress this had caused the Respondent’, and ‘in the circumstances’, the Standards Commission concluded, it was ‘no longer fair, proportionate and in the public interest’ to proceed with a Hearing and they would therefore take no further action on the referral.