A senior Scots judge has ruled that the country’s ethical watchdog acted unlawfully by blocking key evidence from a misconduct hearing against a Glasgow councillor over claims she criticised a senior council official, according to a report today in The Glasgow Herald.
Lord Sandison found the Standards Commission for Scotland had no lawful basis for refusing to admit seven documents which Fiona Higgins said were central to her defence over a social media post accusing a former Glasgow finance director of misleading councillors and the public.
Ms Higgins has been trying to stop an allegedly unfair disciplinary hearing over social media posts accusing senior Glasgow City Council officials of misleading councillors about proposed education cuts, arguing the watchdog had barred key emails and budget documents that explain why she made the comments.
The judge said the seven documents would be needed to establish the factual basis for her comments and assess whether her right to freedom of expression had been unlawfully interfered with.
These documents include email chains and budget materials relating to the presentation of education budget proposals.
Lord Sandison said the commission had “shut its ears” to Ms Higgins’ proposed submissions by preventing the disputed material from being used at the substantive hearing.
He ruled: “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.”
And he warned that excluding material which might be relevant “risks creating the impression, accurate or not, that the issue has been pre-judged”.
He found the commission’s decisions had “no logic to them, and were therefore irrational”.
Peter Watson, solicitor advocate for Ms Higgins, described the judgment 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 added: “I have always maintained that 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.”
During the Court of Session hearing, the judge had already questioned whether Scotland’s ethical watchdog could properly assess the councillor’s free speech defence to misconduct allegations, and that has fed its way into his judgment.
The hearing marked the latest stage in a long-running legal battle that some consider has become a test case over the powers of the Standards Commission and the extent to which elected councillors can rely on freedom of expression when criticising senior public officials.
The case stems from social media posts made by Ms Higgins after she obtained internal council emails through Freedom of Information laws.
The Standards Commission is due to hold a misconduct hearing into whether those comments breached the Councillors’ Code of Conduct. However, Ms Higgins argued the hearing would itself be unfair because she had been prevented from relying on emails and other documents which she says explain why she made the statements.
She argued that the material was central to her claim that her comments were protected by Article 10 of the European Convention on Human Rights, which protects freedom of expression.
Lord Sandison agreed that the Article 10 issue meant the factual background to the post was important.
He said: “A close assessment of the facts and circumstances would be necessary to determine the application of Article 10 to the post.”
He added that the excluded productions demonstrated “the strength of the factual basis for the value judgments in the post” and showed “the seriousness of the issues and the acuity of the public interest” in the matters to which they related.
The documents at the centre of the dispute included an email chain involving Mr Booth, Glasgow’s chief executive, and senior education officials about how the budget proposal might be presented to councillors.
Other material dealt with the potential effect of teacher cuts on Scottish Government grant funding, the impact of the budget on a programme for disadvantaged young people, education budget templates and documents showing the development of the proposals.
When asked to reconsider its decision in February, it said it did not consider the documents directly relevant to the limited issue of whether Ms Higgins’ social media comment amounted to a breach of the code.
It said the matter was closed and that it had taken proportionality and fairness to the ethical standards commissioner into account.
But Lord Sandison rejected that approach in relation to seven of the documents.
He found that an email chain discussing the presentation of the budget was “potentially relevant” to establishing what happened and who contributed to decisions about how the proposed budget was presented to councillors.
The judge also found documents dealing with the potential significance of the proposed education cuts were potentially relevant to the proportionality assessment required under Article 10.
However, he rejected Ms Higgins’ challenge in relation to several other documents.
He said a duplicate copy of her original X post had properly been refused.
Lord Sandison said a key consideration when excluding material from a substantive hearing was that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.
He said any substantial doubt about whether evidence was relevant should normally be resolved in favour of admitting it, subject to proportionality.
The judge also criticised the commission’s handling of proportionality.
He said there was “no very obvious indication of where and why the balance between these considerations was struck” when the commission decided that admitting the disputed documents would be disproportionate.
Lord Sandison said that right was “a fundamental element of the ability to participate fully in a democratic society”.
The judge’s ruling does not determine whether Ms Higgins actually breached the code of conduct. Instead, it determines what evidence the Standards Commission must be permitted to consider when it eventually hears the case.
The misconduct proceedings against Ms Higgins will therefore have to proceed on the basis that the seven documents cannot be excluded in the way the commission had sought.
Paul McManus, the drummer with Scots rock band Gun and multi- millionaire businessman tycoon who funded the case said: “ I’m absolutely delighted to win this case and for justice to prevail.
“We took this case on as it was crystal clear that very senior people within government conspired against and used state levers to silence a democratically elected councillor who was simply doing her job by exposing their outrageous behaviour.
“Had we not taken on the case, Councillor Higgins’ life would have been ruined by these charlatans and they would have gotten away with it. I’m delighted for her and her family…”
A Standards Commission spokesman said they would “carefully consider the detail “of the judge’s comments and look to reschedule the hearing to conclude the complaint against Ms Higgins.
“The Standards Commission considers this to have been an important case in respect of the extent to which it can make decisions based on both fairness and proportionality in respect of how its hearings are to be conducted. It will consider its procedures and the implications for its resources going forward in light of the judgment, ” the spokesman added.