Renfrewshire councillor successfully challenges disqualification preventing him standing for re-election

Lady Dorrian

About this case:

• Citation:
  [2022] CSIH 15
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

It was argued by Paul Mack, a councillor on Renfrewshire Council since 2012, that the initial period, which would have prevented him from standing for re-election in the 2022 council elections, was disproportionate.

The appeal was heard in the Inner House by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Doherty and Lord Matthews. Dean of Faculty, Roddy Dunlop QC, appeared for the appellant while Lord Keen of Elie QC appeared for the respondent.

Excessive in the circumstances

One of the complaints against the appellant related to a series of emails accusing other councillors of assisting the daughter of a councillor to obtain a council house, while the other related to an email criticising a decision of the council’s Emergency Board in March 2020 in which he said to another councillor who took objection to his comments that “in any decent society someone would simply have come round to your hoose, amputated your right arm with a blunt spoon and hit you over the heid with the soggy end”.

A hearing panel convened by the respondent in the absence of the appellant, found him to be in breach of the Councillors Code of Conduct and disqualified him from being a councillor, or being elected as one, for a period of 17 months. The appellant successfully challenged the decision in the Sheriff Appeal Court, which ordered a new hearing. The second panel imposed a disqualification period of 16 months, however it noted that the sanction would have 20 months were it not for the fact that the appellant had already served four months of the previously imposed period.

An appeal of the second decision to the Sheriff Appeal Court was unsuccessful. On appeal to the Inner House, the appellant maintained that, while the panel was entitled to make the findings that it did, a disqualification that prevented him from participating in the May 2022 election was excessive in the circumstances. He invited the court to substitute a disqualification of 10 months, after giving credit for the 4 months he had already served.

The position of the respondent was that the sanction imposed was one open to the panel and to the sheriff principal. There had been no serious flaw in the decision-making process and the decision was not plainly wrong or wholly unreasonable. As such, there was no basis for the court to interfere with the decision.

Significant weight

Delivering the opinion of the court, Lady Dorrian began: “We proceed on the basis of the findings made by the panel, including: their assessment that these were serious breaches; that the appellant had no basis for the allegations he was making; that they constituted gratuitous personal abuse; [and] that the breaches were deliberate in nature, intended to be disrespectful, to cause offence and to harass.”

Turning to whether it was appropriate to prevent the appellant from standing for re-election, she continued: “The weight to be given to the fact that a disqualification period extends past the date for nomination for the next election will vary from case to case. Plainly, since the maximum available disqualification is 5 years, the 2000 Act envisages that in some cases an appropriate sanction may, because of the normal cycle of elections, prevent someone from contesting the next election.”

Assessing the reasoning of the panel, Lady Dorrian said: “On the final page of its decision the panel ‘noted’ that a disqualification of that length would preclude the appellant from standing at the 2022 election, but it does not appear to have attached any significant weight to that consideration. Rather, it reasoned that ‘any effect arising from the timing of the election should not obstruct what the panel considered to be the fair, just and reasonable period of disqualification’.”

She went on to say: “In the particular circumstances of this case the proximity of the 2022 election was a very material factor, and we consider that the panel erred in not giving it significant weight. When it determined the sanction on 10 May 2021 the panel ought to have been alive to the fact that it could have selected a headline disqualification period (before allowing for discount) of up to 14 months and 22 days (instead of 20 months) without disabling the appellant from standing in the 2022 election, and that it could have discounted that by just over 4 months to reflect time already served.”

Lady Dorrian concluded: “It is also worthy of note that had the appellant not appealed the first tribunal’s decision he would have been able to participate in the election. That is part of the context in which a proportionate sanction requires to be determined. Unless there are cogent reasons to the contrary (and we see none here), the appellant should not be penalised for having succeeded in the first appeal.”

The appeal was therefore allowed. The appellant’s existing disqualification was quashed and substituted with one of 10 months.