Factual and Procedural Background
The Petitioner, an elected member of the City Council, sought judicial review of decisions by the Respondent refusing to accept certain documents for use at a disciplinary hearing concerning an alleged breach of the Councillors’ Code of Conduct. [1]
The complaint arose after the Petitioner reposted a social-media article concerning proposed reductions in teacher numbers and alleged that a Council officer had misleadingly softened the wording of budget material. The officer complained that the post breached provisions of the Code concerning courtesy, bullying or harassment, public criticism of employees, and councillor-employee relations. [2][3][4][5][6][7]
The Ethical Standards Commissioner concluded that the Petitioner had breached the Code, following which the Respondent arranged a hearing. The Petitioner sought to lodge 20 productions; the Respondent refused 12 of them and maintained that refusal after reconsideration. [8][9]
Legal Issues Presented
- Whether the judicial review petition was competent despite the statutory appeal to the Sheriff Principal. [10][11]
- Whether the proposed disciplinary hearing engaged Article 6 of the European Convention on Human Rights. [12][13]
- Whether refusal of the productions breached natural justice and the common law requirements of fairness. [14][15][16]
- Whether the Respondent’s decisions involved an error of law, irrationality, or inadequate reasons. [17][18][19]
Arguments of the Parties
Petitioner’s Arguments
- The statutory appeal was not an effective alternative remedy because it could not prevent an unfair hearing or protect against an unlawful sanction before the hearing concluded. [10][20][21]
- The proposed hearing engaged Article 6 because suspension or disqualification affected the civil right to perform the elected office of councillor. [12][13]
- The refused documents were relevant to the factual basis, public importance, and proportionality of the social-media post, particularly under Article 10. [22][15]
- The Respondent acted unfairly, irrationally, and contrary to its own guidance, and gave inadequate reasons for excluding the material. [16][18][23][19]
Respondent’s Arguments
- The 2000 Act created a self-contained statutory scheme, including an eventual appeal capable of addressing procedural unfairness arising at the hearing. [24][25]
- The absence of suspensive effect was a deliberate legislative choice and did not justify intervention by the Court of Session. [25][26]
- The Respondent had broad procedural discretion and reasonably determined that the admitted affidavits sufficiently covered the Petitioner’s position. [27][28][29]
- The decisions were neither irrational nor inadequately reasoned. [28][30][31]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| British Railways Board v Glasgow Corp | Alternative statutory remedies may restrict judicial review, subject to exceptions. | Considered in determining competency. [32] |
| Tehrani v Argyll and Clyde Health Board (No 2) | The alternative-remedy principle depends on the circumstances of each case. | Considered in determining competency. [32] |
| R (Ford) v Coventry Magistrates’ Court | Judicial review may be available where an appeal would not prevent procedural unfairness. | Supported the conclusion that the statutory appeal was ineffective at this stage. [21][33] |
| R (Redgrave) v Metropolitan Police Commissioner | An appeal may be inadequate where it requires a person to undergo an unfair hearing first. | Applied to the present disciplinary proceedings. [34][35] |
| Kennedy, Petitioner | Practical delay may justify judicial review despite statutory review machinery. | Supported prompt supervisory intervention. [34][36] |
| Re McAleenon | The court should examine whether the alternative remedy addresses the precise mischief complained of. | Used in analysing the statutory appeal. [37] |
| Niles v Judicial and Legal Service Commission | An alternative remedy must be effective, efficient, and apt to address the alleged irregularity. | Adopted in concluding that the petition was competent. [38][39][40][41][42][43] |
| Calvin v Carr | An alternative appellate remedy must confer full and adequate jurisdiction. | Supported the competency analysis. [44] |
| Brown v Executive Committee of the Edinburgh District Labour Party | Applied the principle in Calvin v Carr. | Considered in relation to adequacy of alternative remedies. [44] |
| Tarmac Econowaste Ltd v Assessor for Lothian Region | Alternative remedies and exceptional circumstances in judicial review. | Considered in evaluating the Scottish approach. [45][46] |
| Eba v Advocate General | The supervisory jurisdiction is broad and equitable. | Informed the court’s description of its jurisdiction. [45][47] |
| King v East Ayrshire Council | Remedies under the supervisory jurisdiction are discretionary. | Considered in characterising the court’s role. [48] |
| McCue v Glasgow City Council | Alternative remedies may be treated as a matter of competency. | The court questioned whether that terminology fully captured the jurisdiction. [49][25] |
| R (Privacy International) v Investigatory Powers Tribunal | Supervisory jurisdiction is ousted only by clear and express words. | Supported intervention where the statutory remedy was not effective. [49] |
| Van de Hurk v The Netherlands | Article 6 requires proper examination of submissions, arguments, and evidence. | The court held that the common law imposed an equivalent duty. [12][50] |
| Tehrani v United Kingdom Central Council for Nursing Midwifery and Health Visiting | Disciplinary proceedings may concern civil rights. | Considered but not treated as directly analogous to elected office. [13][50] |
| Le Compte, Van Leuven and De Meyere v Belgium | Professional disciplinary proceedings may engage Article 6. | Considered in the Article 6 analysis. [13][50] |
| Janik v Standards Board for England | Disciplinary proceedings may engage civil rights. | Considered in the Article 6 analysis. [13][50] |
| General Medical Council v Pembrey | Professional disciplinary sanctions may engage Article 6. | Considered in the Article 6 analysis. [13][50] |
| Selvarajan v General Medical Council | Proceedings threatening livelihood may engage Article 6. | Considered but distinguished from the elected-office context. [13][50] |
| Lombardo v Malta | Article 10 requires close assessment of the factual basis for expression. | Supported admission of evidence relevant to the post’s factual basis and public interest. [15] |
| R v Secretary of State for the Home Department, ex parte Doody | Administrative powers carry a presumption of procedural fairness. | Supported the requirement for a fair evidential process. [51] |
| Greater Glasgow Health Board v Chair of the Scottish Hospitals Inquiry | Fairness ordinarily requires consideration of material evidence on core issues. | Used to assess the Respondent’s exclusion of documents. [16][30] |
| British Oxygen Co Ltd v Board of Trade | A decision-maker must not unlawfully shut its mind to relevant submissions. | Relied upon in the Petitioner’s fairness argument. [16] |
| Asim v Secretary of State | Irrationality requires a decision lacking logical justification. | Considered in the challenge to the exclusion decisions. [18] |
| Bank Mellat v HM Treasury (No 2) | Evidence should generally be excluded only where plainly irrelevant. | Considered in the relevancy analysis. [52] |
| Paton, Petitioner | Reasons must adequately explain the decision under challenge. | Considered in assessing the Respondent’s reasons. [19] |
| Wordie Property Co Ltd v Secretary of State for Scotland | The informed reader must not be left in real and substantial doubt about the reasons. | The court held that the reasons would have failed this test if separately determined. [19][31][53] |
| Brechin Golf and Squash Club v Angus District Licensing Board | Reasons must not be confused or ambiguous. | Considered in the reasons challenge. [19] |
| West Lothian Council v Scottish Ministers | Reasons need not be lengthy or elaborate and must be read in context. | Applied in the Respondent’s reasons analysis. [54][31] |
| Uprichard v Scottish Ministers | Reasons are assessed in context, including the knowledge of the intended reader. | Applied alongside Wordie Property Co Ltd. [54][31] |
| Dante v Assessor for Ayr | Historical basis for treating judicial review as a remedy of last resort. | Reviewed in the court’s discussion of competency. [55] |
| R (Cart) v Upper Tribunal | The boundary between jurisdictional limits and discretionary refusal may be permeable. | Used to explain difficulties with the language of competency. [56] |
| Moss’ Empires Limited v Assessor for Glasgow | The supervisory jurisdiction keeps inferior bodies within their lawful powers. | Used to define the relevant rule-of-law mischief. [41] |
Court’s Reasoning and Analysis
The court held that the existence of a statutory appeal does not bar judicial review unless the alternative remedy is effective and apt to address the complained-of wrong. The statutory appeal arose only after a finding following a hearing, whereas the Petition challenged pre-hearing decisions. It therefore could not provide relief against the allegedly unlawful procedure before the hearing occurred. [56][41][42][36]
The right to participate as an elected member of a representative assembly was held, as a matter of principle, to be a civil right for Article 6 purposes. However, the court considered that Article 6 added no greater obligation than the Scottish common law duty requiring a judicial or quasi-judicial tribunal to examine relevant submissions, arguments, and evidence properly. [57][50]
The Respondent had procedural discretion under section 17(1), but that discretion did not extend to refusing evidence that was legally relevant. Doubts about materiality should generally be resolved in favour of admission, subject to proportionality. The court also stressed that exclusion of arguably relevant evidence could create an appearance of pre-judgment and undermine the legitimacy of the hearing. [58][59][60][61][62]
Because Article 10 was engaged, the Respondent had to consider the factual background to the social-media expression, the public interest, and the proportionality of any interference with freedom of expression. The Respondent’s reasoning did not demonstrate that it had undertaken that assessment. [63][64]
Document 1 was properly rejected because it duplicated material already lodged. Documents 19 and 20 were properly rejected because they concerned collateral criticisms of the Council officer. Documents 5 and 6 could be excluded on proportionality grounds because their relevant points could be made from more focused material. [65][66][67]
Documents 2, 3, 4, 7, 8, 9, and 10 were potentially relevant to what had occurred, the significance of the proposed cuts, and the Article 10 assessment. Their exclusion exceeded the Respondent’s lawful powers. Documents 11, 19, and 20 were within the Respondent’s lawful power to reject. [65][66][68]
The court noted shortcomings in the Respondent’s stated reasons, including apparent inconsistency and conclusions that were not adequately explained. It did not require separate determination of that ground because the relevancy analysis already identified the documents that should have been admitted. [69][53]
Holding and Implications
PETITION COMPETENT AND PARTIALLY GRANTED. The court reduced the Respondent’s decisions insofar as they refused to admit documents 2, 3, 4, 7, 8, 9, and 10, and repelled the Respondent’s pleas. [70][71]
The direct consequence was that those seven documents were to be admitted as productions for the disciplinary hearing. The refusals concerning documents 1, 5, 6, 11, 19, and 20 remained undisturbed. [68][71]
The opinion confirms that a statutory appeal will not necessarily be an effective alternative remedy where it cannot prevent an allegedly unfair hearing, and that procedural discretion does not permit exclusion of evidence that is legally relevant. [41][36][59][60]