Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 100
P302/13	OPINION OF LADY SCOTT in Petition of JAMES DICKSON Petitioner; For judicial review of decisions of the Standards Commission for Scotland ________________

Petitioner: Halley; Wilson Terris & Co SSC

Respondent: Munro; Shepherd and Wedderburn LLP

21 June 2013

[1] This is a petition for judicial review of a decision of the Standards Commission for Scotland to refuse an application for expenses made by the petitioner.

[2] The petitioner served as a councillor on West Lothian Council and was a member of the SNP. The respondents are the Standards Commission for Scotland and are the body established under the Ethical Standards in Public Life etc (Scotland) Act 2000 (the 2000 Act). The Standards Commission promotes and enforces codes of conduct for councillors and members of devolved bodies in Scotland.

[3] Allegations were made against the petitioner and others, which were then investigated by the Public Standards Commissioner (the PSC or Commissioner). Following upon a report by the Commissioner the respondents decided to hold a hearing in terms of section 16(b) of the 2000 Act. At a meeting on 2 October 2012, the respondents decided to take no action against the petitioner. The petitioner then applied for expenses for attendance at that meeting and for the production of documents. The respondents' decision to refuse to award expenses is the subject of this petition.

[4] The petitioner seeks, firstly, declaratory that the proper construction of the relevant statutory provisions and rules is habile to provide for payment of the petitioner's expenses and the respondents acted ultra vires in the refusal to pay same; and, secondly, seeks reduction of the decisions to refuse payment.

Statutory scheme

[5] The overall purpose of the statutory scheme is the promotion and enforcement of high standards in public life. The scheme provides for the investigation and reporting of complaints regarding alleged breaches of the code, by the Commissioner and further provides for an enforcement role for the Standards Commission, in response to reports made by the Commissioner.

[6] In particular the scheme provides under section 16 that upon receipt of a report on the outcome of any investigation the respondents may: (a) direct the Commissioner to carry out further investigations, (b) hold a hearing to uphold the Commissioner's findings or, (c) do neither.

[7] Where the Commission decides to hold a hearing under section 16(b), the procedure is governed by section 17 of the Act, which provides as follows:

"Hearings before Commission

(1) Subject to subsections (2) to (10) below, the procedure at a hearing held under section 16(b) above shall be such as the Commission determines.....

(3) A hearing shall be conducted by not fewer than three members of the Commission selected by the convener of the Commission.

(4) A councillor or member of a devolved public body whose conduct is being considered by a hearing is entitled to be heard there either in person or represented by counsel or a solicitor or any other person.

(5) The members of the Commission conducting a hearing may-

(a) require any person to attend the hearing, give evidence and produce documents;

(b) administer oaths.

(6) A person shall not, however, be compelled to give any evidence or produce any documents which that person could not be compelled to give or produce in civil proceedings in the Court of Session.

(7) A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (5)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8) The Commission may pay persons appearing at a hearing or attending it for the purpose of giving evidence or producing documents such expenses or allowances as it, with the approval of the parliamentary corporation, determines."

[8] Under this scheme the Standards Commission devised "Rules for the Conduct of Hearings Held by the Standards Commission to Consider Alleged Contraventions of Codes of Conduct by Councillors or Members of Devolved Public Bodies" (2000) (the rules). These rules provide, inter alia, the following:

"3.3. Within 10 days of the Standards Commission's decision to hold a Hearing, the Executive Director will write to the Respondent:

(a) advising the Respondent of the following matters:

·      The Standards Commission's decision to hold a Hearing;

·      The complaint made and the relevant section of the Code of Conduct that is alleged to have been breached;

·      The names of the Members of the Hearing Panel and of the Chair appointed to hold the Hearing;

·      The date on which and the location at which the Standards Commission has provisionally arranged that the Hearing will take place. In the event of a Hearing expected to last more than one day, an estimate of the likely duration of the Hearing. Where practicable, in the event that the Hearing is expected to last more than one day, an estimate of the likely duration will be given.

·      That the case against the Respondent will be conducted by the PSC, who may appoint counsel, a solicitor or any other person, to assist him/her or to prosecute the complaint before the Hearing, and who may produce and make available documents;

·      That, unless the Standards Commission requires otherwise in terms of section 17(5)(a) of the 2000 Act, the Respondent is entitled to elect not to appear at the Hearing, but instead to rely on documents previously submitted and/or a written statement of case and/or other documents; but that, if he/she does appear, he/she is entitled to give evidence in person and/or be represented by counsel, a solicitor or any other person, and to call one or more witnesses to make representations on his/her behalf. ...

3.5 The Standards Commission or Hearing Panel may at any time before the Hearing takes place, on its own accord or on an application by the Respondent or the PSC, decide to hold a pre-Hearing meeting for the purpose of discussing procedural arrangements for the Hearing. The PSC and the Respondent will be invited to attend and/or be represented at any such meeting, which shall, unless the Standards Commission or Hearing Panel otherwise directs, be held in private. ...In the event that a pre-Hearing meeting is held, the timescales for the submission of documents prior to the Hearing will be such as is set out in these Rules...

13.0 Payment of Expenses

13.1 The Standards Commission may pay persons appearing at Hearing or attending it for the purpose of giving evidence or producing documents such reasonable expenses or allowances as it thinks fit."

[9] Rule 13.1 derives from section 17(8). It has now been amended to the effect that, as from 1 April 2011, any payments the Commission intends to make under the rule must be approved by Parliamentary Corporation.

The facts
[10] In December 2008, allegations had been made that the petitioner was responsible for breaches of the code of conduct issued by the respondents. These had been investigated by the Commissioner who had reported to the respondents in 2009. No action was taken pending investigation by the Procurator Fiscal into other allegations concerning other councillors. On 10 May 2012, the Procurator Fiscal intimated that no proceedings were to be taken involving the petitioner. The respondents then resumed consideration of the Commissioner's report and the timetable of subsequent events is as follows:

·               On 19 June 2012, the respondents wrote to the petitioner to inform him that, having considered the report by the Commissioner the Commission had decided, in terms of section 16(b) of the 2000 Act, to hold a hearing "to consider the allegations against you" (6/1 of process). The letter advised the petitioner his rights and obligations which included the information set out under the rules as to the conduct of the hearing as rehearsed above.

·               On 28 June (6/6 of process) the respondents wrote to the petitioner to inform him the hearing had been fixed, which date was subsequently discharged and new dates set out for 2 October, 4 October, 5 October and 8 October 2012.

·               Both the Commissioner (by letter of 9 July) (6/7 of process) and the petitioner (by letter of 31 August) (7/11 of process) suggested a "pre-hearing meeting" should be arranged. By letter on 12 September the petitioner was informed that a "pre‑hearing meeting" had been fixed for 26 September. Provision for a "pre‑hearing meeting" is made under rule 3.5 of the rules.

·               The pre-hearing meeting on 26 September was attended by counsel for the petitioner who submitted inter alia that due to the delay in the proceedings it would be incompetent and unfair and in breach of the petitioner's rights under article 6 of the European Convention of Human Rights to proceed to a hearing. Accordingly, the petitioner submitted the hearing should be discharged. The Commissioner indicated his view that the respondents could still decide not to proceed further in terms of section 16(c) of the 2000 Act. The meeting was adjourned to 2 October 2012.

·               The next day, by letter of 27 September (7/2 of process), the respondents wrote to the petitioner to confirm the adjournment and re-iterated that the purpose of the meeting was "to hear representations made on behalf of yourself to discharge the hearing which was scheduled to start [on that date]".

·               At the meeting on 2 October, the petitioner, in accordance with his written submissions (6/9 of process), moved the Commission to discharge the case by exercising its power under section 16(c) of the 2000 Act, on the grounds inter alia of the delay in progressing the allegations, unfairness arising in respect of the delay and the potential costs of any hearing at which evidence may be led. After argument, the Commission decided not to take any action in terms of section 16(c) of the 2000 Act. The petitioner then moved for expenses in terms of rule 13.1, of the said rules, for persons attending that day and for the production of documents. The decision on expenses was reserved by the Commission.

In a written decision headed "Meeting of 2^nd October 2012" the decision given was:

"The Commission is not persuaded that to proceed with the hearing would be unfair. Nor did we find anything new in the submissions for Councillor Dickson. However, the Commission did re-consider the impact of a prolonged delay on the proceedings, and, in particular, assessed the serious nature of the Commissioner's/PSC's conclusions in his 2009 Report against the fact that no further matters in regard to Councillor Dickson have been referred to the Commission in the intervening period. The reason for the delay was the intervention of the Procurator Fiscal who asked the Commission to defer consideration of the Report pending resolution of a criminal investigation concerning another individual.

It is therefore the decision of the Commission that it would not be in the public interest to hold a hearing. I would emphasise that this was a finely balanced decision."

[11] Subsequently, the respondents refused the application of expenses and gave their decision by letter of 5 October 2012, which stated that:

"The application has been considered by the Standards Commission who would remind you that rule 13.1 relates to hearings and no hearing was held. ...In any event, the Standards Commission considers that it would be inappropriate to order the payment of expenses in respect of the respondent and his representatives. Accordingly, the application for payment of expenses is refused."

[12] By letter of 14 November, the petitioner invited the Commission to re‑consider their decision on expenses to which the Commission replied on 14 December that after re-consideration their decision not to award expenses was upheld.

Submissions for the petitioner

[13] Counsel for the petitioner's submissions fell under two headings. First, he challenged the decision to refuse expenses on the basis that to do so was incompetent under the statutory regime. This, it was submitted, was an error of law by the respondents. Secondly, he challenged the decision that an award of expenses was "inappropriate". This, it was submitted, was unclear and perverse in the whole circumstances.

Error of law

[14] Counsel for the petitioner submitted that, following the Commissioner's report, the respondents had three options as to how to proceed under section 16 of the 2000 Act. They elected to hold a hearing under section 16(b). Such a course was regulated by section 17 of the 2000 Act. Section 17(8) provided discretion to the respondents to pay persons the expenses sought for attending a hearing and/or for producing documents. Rule 13.1 was introduced in respect of this discretionary power. The purpose of this provision was to allow for expenses reasonably incurred for persons attending and affected by proceedings related to the holding of a hearing and for the costs of assisting the respondent to hold such a hearing.

[15] Having decided on this course, it was submitted that all the steps taken by the respondents were directed to the holding of a hearing in terms of section 17. Within the statutory scheme there was only provision for "a hearing". The rules provide for a procedural hearing in addition to the hearing. On 26 September, the petitioner attended what was described as procedural hearing and this took place as such before a single Commissioner. However the next hearing, on 2 October, it was submitted was different and fell to be regarded as a hearing under section 17. This was because:

(a) It took place on the date designated for the hearing under section 17

(b) it was held before the full Commission (3 members) - which was a mandatory characteristic of a hearing under section 17; and

(c) the hearing in fact dealt with substantive matters, not merely procedural issues, and this hearing was determinative of the case and, as such, fell to be viewed as a hearing under section 17.

[16] It was further submitted that it would be illogical and unfair to allow for the award of expenses reasonably incurred by the requirement to appear, with representatives and to produce documents at one hearing and not at another, simply on the basis of whether they are designated as a hearing under section 17. In acting on the question of expenses, the respondents were exercising their statutory jurisdiction and not simply acting in an administrative capacity. The court should intervene where there has been a wrongful exercise of jurisdiction. Reference was made to Milton v Argyll and Clyde Health Board (OH) 1997 SLT 565.

Wrongful exercise of discretion

[17] Counsel for the petitioner initially concentrated his submission under this heading on the absence of adequate reasons and lack of clarity in the use of the term "inappropriate". In the course of his submissions, generally, counsel for the petitioner made a good deal of criticism of the conduct of the proceedings by the respondents and, what he described as, their initial wrong decision under section 16(c) and their "belated abandonment" of the case. The expenses incurred, it was suggested, were entirely avoidable. In this context, the decision to refuse expenses as "inappropriate" was perverse.

Submissions for the respondents

[18] The primary submission for the respondents was that proper interpretation of section 17 of the 2000 Act demonstrated that the respondents had no power to pay the expenses sought and there was no error of law. The plain language of the provision limited the powers of the Commission. Both section 17(8) and rule 13.1, read together, restricted payment of expenses to those incurred in connection with attendance or appearance at a hearing. There was no hearing under section 17.

[19] The purpose of such a hearing was to decide whether or not to uphold the Commissioner's findings and, if so, whether sanctions should be imposed. Under section 17 there are no "proceedings" as such, but simply the holding of a hearing.

[20] Even if section 17(8) and rule 13.1 allow for a broader interpretation and in considering whether or not the refusal of expenses as inappropriate was an unreasonable exercise of discretion, it was important to recognise the nature of this statutory scheme. The provisions do not permit and certainly do not oblige the respondents to pay the expenses of a party to a hearing as if it were a matter of ordinary litigation. The expenses sought failed to recognise the regulatory nature of these proceedings. The respondents are a small public authority who act in the public interest. In this context, any provision for expenses in the Act or the rules should be viewed as being confined to the award of modest expenses incurred, which are far removed from legal costs in an ordinary action. Further, it is recognised that awards of expenses against regulatory bodies should only be made where there is good reason to do so - Milton v Argyll and Clyde Health Board (supra; Baxendale-Walker v Law Society [2008] 1 WLR 426 at 435H).

Decision

[21] There was no dispute that this action turns on the proper interpretation of section 17 of the 2000 Act and rule 13.1 of the rules. The starting point is to comprehend this provision in the context of the whole statute and with regard to its purpose. The purpose of this part of the 2000 Act concerns a regulatory scheme of enforcement. The powers of the respondents fall to be viewed in the context of this regulatory scheme and I agree with the respondents' submissions that in this context their powers fall to be construed narrowly.

[22] The essential point of division between parties was whether or not the proceedings before the Commission on 2 October was an appearance at a hearing under section 17. The petitioner sought to characterise this meeting as a hearing under section 17 on the basis of how it looked (being held on the same date fixed for the hearing and being constituted by three Commissioners) and by how it acted in the making of a determinative decision. I am not persuaded these features provide a reasonable basis upon which to properly characterise this event. It is contradicted by other facts and features of this meeting. The meeting followed an adjournment of what was conceded to be a "pre-hearing meeting" on 26 September. It involved a debate about whether the Commissioner's report should proceed to "a hearing". The decision made, as recommended by the Commissioner, was to change to another option under section 16, namely, to take no action. The substantive decision made was not a determination as provided for under section 17, namely, whether or not to uphold the recommendations of the Commissioner's report. Rather it was a decision in respect of procedure.

[23] I am satisfied, therefore, that the respondents' submissions are well-founded and that no hearing under section 17 in fact took place. That being so, there is no provision under the 2000 Act or the rules to allow the expenses sought. The plain words of section 17(8) provide a discretion to the Commission only to pay persons appearing at a hearing or attending it for the purpose of giving evidence or producing documents such as expenses or allowances. It seems clear that the respondents' discretionary power is deliberately restricted to paying expenses incurred by appearance or attendance at a hearing. If that discretion was intended to be any wider, then the section would have said so, by, for example, specifying for "matters incidental to the hearing". Informed interpretation supports this restriction of powers as it fits with the regulatory nature of the proceedings and the limited function of the Commission.

[24] On occasion, the petitioner's submissions suggested that such limited provision for costs reasonably incurred by a party, who required to contest a report, was unreasonable or unfair. Even if that was a valid criticism, it is a failing arising from the legislation and not from the conduct of the Commission. An action for judicial review cannot seek to fill the gaps in a statutory provision or rectify the statute. Under section 17(8), it is plain no provision is made for the expenses sought here and the Commission, in my view, would have committed an error of law if it had awarded the expenses sought. This is sufficient to dismiss the petition.

[25] Finally, I would observe that I had some sympathy with the petitioner's submissions under the second heading of challenge, that the further reason given by the respondents for refusal of expenses as "inappropriate" was unclear. However, no case of inadequate reasons was pled in this petition.

[26] The petitioner then sought to pray in aid this absence of reasons to support his submission that the decision to refuse expenses as inappropriate was perverse. But the substance of this argument appeared, again, to be the complaint that refusal of payment of expenses reasonably incurred as a result of the respondents' "belated abandonment", was unfair and unreasonable. For the reasons given above at [24], I reject this argument.

[27] I repel the first and second pleas-in-law for the petitioner; repel the first plea-in-law for the respondents, no argument having been advanced in respect thereof; sustain the second and third pleas-in-law for the respondents; and reserve meantime the question of expenses.