Derogatory remarks do not enjoy enhanced rights of expression simply because they are uttered by politicians

It is scarcely possible to turn on the news without being confronted with new allegations of impropriety in politics, entertainment, and now the charitable sector.

As more and more women provide personal testimony of their experience, people are left to wonder at the exploitative attitudes of men in positions of power or authority and whether measures can be taken to ensure that sexual abuse, harassment, or bullying do not go unchecked.

For those in public life, elected or appointed and at a national and local level, there are clear Codes of Conduct. Even so, questions are being raised as to whether the ethical standards framework allows action to be taken about some of the types of behaviour which are now the subject of widely voiced complaints.

Take for instance the use of social media for intimidation and harassment. Late last year the Committee on Standards in Public Life in England published a report which stated: “The widespread use of social media has been the most significant factor accelerating and enabling intimidatory behaviour in recent years.” 

That Committee is currently conducting a review in which it asks, “What, if any, are the most significant gaps in the current ethical standards regime?”  and “Do the codes cover an appropriate range of behaviours?”.

It has asked the Standards Commission for Scotland, (SCS), to provide a perspective on the ethical standards framework north of the border.  It makes sense to establish if we already have measures in place before advocating new ones. At the same time we should be alert to the need for improvements.   

Councillors and those serving on the boards of national public bodies, such as the Scottish Police Authority, Scottish Enterprise, as well as NHS and colleges boards, are all subject to statutory Codes of Conduct with which they must comply.  MSPs, on the other hand, have a separate framework - alleged breaches are not dealt with by the SCS, but rather by a Standards, Procedures and Public Appointments Committee of the Parliament.

All of the Codes of Conduct are underpinned by nine key principles of public life: duty, selflessness, integrity, openness, objectivity, honesty, leadership, respect, and accountability and stewardship.

These overarching values are given effect by specific guidance and advice issued by the SCS. For example, on the use of social media, our guidance warns: “You should be mindful that your perception of when you are carrying out official business and when you are acting privately may be different to the view of the public.” It also highlights the need to consider whether what is posted may bring the individual or their body into disrepute.

Of course, despite our guidance, complaints of misconduct are made which have to be investigated and alleged breaches are considered at quasi-judicial Hearings. SCS Hearings are held in public. The proceedings are formal, with the Commissioner for Ethical Standards in Public Life in Scotland, (CESPLS), presenting the case that a breach has occurred, while the Councillor or board member, who is the subject of complaint, is given the opportunity to respond.

Both sides can call witnesses and evidence is given under oath. The SCS then decides whether the breach has occurred. It is important to note that the test here is on the balance of probabilities, rather than establishing beyond all reasonable doubt that a breach occurred. Breaches give rise to a sanction which can range from censure and suspension to disqualification.

In recent times it has been shown that this framework can be used to tackle some of the behaviours most recently in the spotlight. Councillors were found to be in breach for:

• using sexual innuendo when making a derogatory comment to a female political opponent 
• using social media to make a homophobic comment about a local LGBT+ activist
• using their political role inappropriately to seek a personal relationship with a member of staff
• intruding into operational matters, by exerting pressure on junior staff on matters which involved confidential child protection issues

As a result, Councillors have been suspended from participation in council meetings, often for several months, in some of the cases mentioned above. However, it would be complacent not to recognise that there are limitations and inhibitions.  

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The framework applies to those elected or appointed, when acting in their official capacity. Public Hearings can, and do, take place in circumstances where a councillor or board member has resigned or failed to be re-elected. The only likely sanction in such cases is one of censure, as the option of suspension is not available. Even so, the publicity surrounding some of these cases can cause reputational harm to the wrongdoers, so providing some redress for the complainants.

The system is also designed to be activated by complaints. Unless there is a complaint made, the CESPLS cannot institute an investigation. This means that the SCS cannot hold a hearing or impose a sanction even if poor conduct is suspected or publicly alleged.

In Scotland most complaints relate to Councillors. This may be due to the adversarial nature of politics and the public nature of local authority decision making. In 2017 the CESPLS received 161 complaints of which 158 related to Councillors, meaning that less than one per cent concerned members of devolved public bodies.

Are we to assume that the boards of such public bodies operate with hardly any significant failings?  Or where there are potential breaches, are members reluctant to complain, particularly as complaints cannot be made anonymously? Of course, both may be true.

Finally, when it comes to addressing language which may be regarded by some as bullying, harassing or intimidating there is a balance to be struck as to whether it breaches the ethical standards concerning Leadership or Respect.

On the one hand, as the Committee on Standards rightly advocates: “Those in positions of power and leadership in public life have a particular responsibility to consider how their tone is likely to shape public debate and must not engage in political debate in a derogatory, dehumanising, or abusive way.” However, we must have regard to the right of freedom of expression enshrined in the European Convention of Human Rights.

In the political sphere the Courts have found that: “In a political context, a degree of the immoderate, offensive, shocking, disturbing, exaggerated, provocative, polemical, colourful, emotive, non-rational and aggressive, that would not be acceptable outside that context, is tolerated.”

Even so, as our decisions have shown, personal, derogatory remarks do not enjoy enhanced rights of expression simply because they are uttered or posted by politicians, and sanctions can and will be imposed.

Suggestions to improve the ethical standards framework in Scotland should be welcomed, but it is currently capable of tackling some of the egregious behaviours complained of just now. 

Kevin Dunion is Convener of the Standards Commission for Scotland, an independent public body, responsible for encouraging high standards of behaviour by councillors and those appointed to boards of devolved public bodies.