Report on a complaint against Mr Sammy Wilson MLA

S-and-P-Wilson.pdf (5.78 mb)

Introduction

1. The Committee on Standards and Privileges has considered a report from the Assembly Commissioner for Standards on his investigation into a complaint against Mr Sammy Wilson MP MLA. The Commissioner's report, which includes a copy of the complaint, is included at Appendix 1 of this report.

The complaint

2. The complaint was made by Mrs Dolores Kelly MLA and related to Mr Wilson's conduct at a meeting of the Committee for Social Development on 16 October 2014. At that meeting the committee heard evidence from Mr Stephen Brimstone (the then Special Adviser to the Minister for Social Development) as part of its inquiry into the allegations made in a Spotlight programme in relation to Housing Executive contracts. Mr Jim Allister MLA had been questioning Mr Brimstone when Mr Wilson interjected to object to Mr Allister's approach. It was Mr Wilson's subsequent comments and his tone about which Mrs Kelly complained.

3. Mrs Kelly drew attention to four specific aspects of Mr Wilson's conduct which she asserted breached provisions of the Code of Conduct. These were:

I. Mr Wilson's reference to witnesses as 'dodgy'. Mrs Kelly asserted that this breached the Code principles of Objectivity and Respect;

II. Mr Wilson's behaviour towards the Committee Chairperson, Mr Alex Maskey MLA, whom he accused of partiality. Mrs Kelly asserted that this breached the Good Working Relationships principle;

III. Mr Wilson's reference to Mr Allister as a 'thug' which Mrs Kelly asserted breached the Respect and Good Working Relationships principles; and

IV. Mr Wilson's aggressive tone and language.

4. Mrs Kelly said that "...this is the second time Mr Wilson's unacceptable outbursts have led to the suspension of the Social Development Committee..." She further asserted that Mr Wilson's conduct had done damage to the reputation of other members of the committee and to the committee itself.

The Commissioner's investigation and findings of fact

5. As part of his investigation the Commissioner interviewed Mr Allister, Mr Maskey and Mr Wilson. He also, inter alia, read the Hansard report of the committee meeting of 16 October 2014 and considered an audio and video recording of that meeting. Having done so the Commissioner then established a number of facts which are set out in paragraph 7 of his report and which include the following:

• At the DSD Committee on 16 October 2014 Mr Wilson was at all times acting in his capacity as an MLA.
• The DVD of that meeting is a true and unedited audio and video recording of events.
• Hansard of that meeting is a substantially accurate transcript of what was said during the relevant part of that meeting.
• The conduct of Mr Wilson at that meeting received widespread coverage on TV, the radio and in the printed media.
• Mr Wilson has offered no apology for what he said at that meeting: nor has he any intention of so doing.
• Near to the start of his speech to the DUP Conference on 22 November 2014 Mr Wilson, in a reference back to what he said at the meeting on 16 October 2014, said 'Thank you very much for the welcome. It's nice to know that I am amongst friends and not amongst thugs. Are there any thugs here today?'

The Commissioner's decision

6. The Commissioner has pointed out that the facts of this case were not in dispute and that the sole issue is whether the admitted conduct of Mr Wilson at the meeting of the Committee for Social Development on 16 October 2014 was in breach of the provisions of the Code of Conduct.

7. The Commissioner has also pointed out that at his interview with him Mr Wilson did not accept that he had broken any provisions of the Code. Mr Wilson asserted that his right to free speech entitled him to say everything he had. The transcript of this interview is at document 9 of the Commissioner's report. The Commissioner said that the right to free speech asserted by Mr Wilson as his defence to the allegations against him is more properly described as the right to freedom of expression. It exists in common law and is also enshrined in Article 10 of the European Convention on Human Rights.

8. The Commissioner has drawn attention to the judgement in Heesom v Public Service Ombudsman for Wales in which the case law on freedom of expression under Article 10 in the context of statements by elected representatives was summarised. From that judgement and the authorities referred to in it, the Commissioner has advanced a number of propositions relevant to this complaint. These are set out at paragraph 15 of his report. Having done this, the Commissioner has said that due regard must be paid to the rights enshrined in Article 10 when considering whether the admitted conduct in this complaint breached the provisions of the Code of Conduct

9. In relation to Mr Wilson's description of witnesses as "dodgy", the Commissioner has said that this is at worst a mild form of abuse and does not amount to "an unreasonable and excessive personal attack". Nor in his opinion does it amount to a breach of the Objectivity principle. The Commissioner's analysis is set out at paragraphs 17 – 21 of his report. The Commissioner did not consider that Mr Wilson's description of witnesses of "dodgy" in itself constituted a breach of the

Code of Conduct

10. In relation to Mr Wilson's accusation that Mr Maskey was biased or partial in the way he chaired the Committee, the Commissioner was satisfied that Mr Wilson was, by virtue of Article 10, entitled to make the accusation of partiality even if it was wholly untrue. The Commissioner concluded that Mr Wilson did not breach any provision of the Code by the making of the accusation. His analysis of this is set out at paragraphs 22 to 25 of his report.

11. In relation to Mr Wilson's description of Mr Allister as a "thug", the Commissioner said that, despite the fact this comment was made in a political context by one politician about another, he did not accept it was protected by the right to freedom of expression enshrined in Article 10 of the Convention. The Commissioner said that untruthfully describing someone as a "thug" is an abusive and gratuitous personal comment, that it amounted to an unreasonable and excessive personal attack on Mr Allister and that it contravened the Respect principle set out in the Code. The Commissioner's analysis of this issue is set out at paragraph 26 of his report.

12. Finally, the Commissioner has considered Mr Wilson's conduct in the round. In doing so he has had regard to everything that took place after Mr Wilson first intervened in the proceedings. Having done so he has concluded that Mr Wilson's conduct was unacceptable and fell well below the required standard. He said that Mr Wilson's conduct most certainly did not strengthen the public's trust and confidence in the integrity of the Assembly and he was satisfied that his conduct would tend to weaken such trust and confidence. The Commissioner was also satisfied that Mr Wilson's actions would be likely to bring the Assembly into disrepute. The Commissioner therefore concluded that by his failure in this duty, Mr Wilson broke the provisions of the Code of Conduct. His analysis of these matters is set out at paragraphs 27 to 31 of his report.

The Committee's considerations

13. In line with the usual procedure, Mr Wilson was provided with a copy of the Commissioner's report. Mr Wilson was informed that he may provide the Committee on Standards and Privileges with his comments in respect of any matter raised within the report. He was also advised that he may choose to appear before the Committee to make his comments in person and to respond to any questions that members of the Committee may have. Mr Wilson neither chose to appear before the Committee nor to provide it with any additional comments.

14. The Committee considered the report at its meeting on Wednesday 18th March 2015 when the Commissioner attended and answered members' questions. The Committee noted that Mr Wilson had cited his right to freedom of expression as a defence to the allegation that by his comments he had breached the Code of Conduct. The Commissioner again acknowledged that due regard must be paid to Article 10 of the Convention when considering whether Mr Wilson's comments had breached the Code. However, the Commissioner set out how he had done this and was satisfied that Mr Wilson's 'thug' comment was not protected under Article 10.

15. The Committee was already aware that a public authority is entitled to restrict a person's right to free expression provided that the restriction is (i) prescribed by law and (ii) is necessary in a democratic society for the protection of the reputation or rights of others. However, the Committee decided to commission its own legal advice which it then considered at a meeting on 15 April. After reflecting on its legal advice, the Committee discussed whether in this case a finding that Mr Wilson had breached the Code would be both prescribed by law and necessary in a democratic society for the protection of the reputation or rights of others. The Committee agreed to give further consideration to this issue and the other matters arising from the Commissioner's report at its next meeting.

16. This meeting took place on 20 May 2015. At this meeting, before reaching its final decision on the complaint, the Committee gave very careful consideration to all the relevant factors in this case and to a number of specific questions. Having done so, the Committee was unable to reach unanimous agreement on its position. However, following divisions, the Committee agreed that:

• leaving aside any Article 10 considerations, Mr Wilson's use of the word "thug" was a breach of the Code of Conduct;
• this "thug" comment was a form of expression protected by Article 10 and that a finding of breach of the Code of Conduct would therefore amount to a prima facie interference with Mr Wilson's Article 10 rights;
• a finding by the Committee of a breach of the Code of Conduct in this case would be prescribed by law; and
• the "thug" comment was a gratuitous personal comment rather than a form of political expression.

17. When concluding that Mr Wilson's "thug" comment was a gratuitous personal comment rather than a form of political expression the Committee considered the context of the meeting and what Mr Wilson had said before and after this comment.

18. The Committee was not persuaded that the "thug" comment was an expression or critique by Mr Wilson of the adequacy of performance of public duties by Mr Allister. The Commissioner has pointed out that the ordinary meaning of the word thug has criminal and violent overtones and has reported that Mr Wilson accepted this at interview. However, although Mr Wilson does not believe Mr Allister to be a criminal or violent person, Mr Wilson has at no time publicly clarified that he did not mean his "thug" comment in this way. Mr Wilson told the Commissioner that his comment referred to the manner in which Mr Allister was treating witnesses – he said that Mr Allister had behaved in a bullying way and that Mr Allister "was violently using words". Mr Wilson said that he did not think his comment needed or required an explanation as it was clear the context in which it was being used.

19. The Committee believes that Mr Wilson's decision to not clarify his comments is instructive. The Committee believes that in calling Mr Allister a "thug" Mr Wilson was trying to insult him by making an untrue and gratuitous personal comment.

20. The significance of concluding that this was a gratuitous personal comment rather than a form of political expression is that political expression is given enhanced protection under Article 10 of the Convention. The Committee is satisfied that Mr Wilson's "thug" comment did not attract this enhanced protection.

21. The Committee weighed up whether in this case a finding by it of breach of the Code of Conduct was necessary in a democratic society for the protection of the reputation or rights of others. In doing so, the Committee took into consideration all the relevant factors. The Committee balanced Mr Wilson's right to freedom of expression and the public interest in this freedom against the public interest in proper standards of conduct by Members in order to protect the reputation and rights of others.

22. Having done so the Committee was unable to reach agreement unanimously. However, following a division, the Committee agreed that a finding of breach was necessary in a democratic society for the protection of the reputation or rights of others. While the Committee acknowledges the importance of Mr Wilson being able to exercise his right to freedom of expression, this right did not outweigh the public interest in this case in ensuring that Mr Allister's reputation and rights were protected.

23. The Committee has therefore agreed that Mr Wilson's "thug" comment amounted to an unreasonable and excessive personal attack upon Mr Allister and that Mr Wilson had contravened the Respect principle set out in the Code of Conduct. Although this finding interferes with Mr Wilson's Article 10 rights this interference is justified. This aspect of the complaint against Mr Wilson is therefore upheld.

24. The Committee did not agree, however, that Mr Wilson's conduct had brought the Assembly into disrepute. Mr Wilson's conduct was unacceptable and fell below the required standard. However, the Committee has never previously found that a Member's conduct has brought the Assembly into disrepute and has decided that it is not going to do so on this occasion either. The Committee has previously recognised that the 'disrepute' provision in the Code of Conduct is subjective – it means very different things to different people. The Committee has therefore agreed, as part of its review of the Code, that the new Code should not include as an enforceable rule provision requiring Members not to undertake any action which would bring the Assembly into disrepute.

25. The Committee agreed with the Commissioner that the other aspects of Mrs Kelly's complaint should not be upheld. However, the Committee noted Mrs Kelly's claim that Mr Wilson's "outbursts" had on two occasions led to the suspension of meetings of the Committee for Social Development. The new Code of Conduct brought forward by the Committee provides, at Rule 13, that Members shall not act in any way which improperly interferes, or is intended or is likely to improperly interfere, with the performance by the Assembly of its functions, or the performance by a Member, officer or staff of the Assembly of their duties. Therefore, under the new Code, if a Member's behaviour in committee was so improper, unreasonable and persistent that a committee was unable to exercise its functions, that Member could be in breach of Rule 13.

26. The Committee wrote to Mr Wilson on 20 May 2015 informing him of the Committee's decision that he had breached the Code of Conduct and telling him that he should apologise to Mr Allister for his comment. The Committee had agreed that an appropriate apology from Mr Wilson to Mr Allister would allow it to report that the matter had been resolved. Its correspondence to Mr Wilson explained this position. The correspondence went on to state that should Mr Wilson not apologise to Mr Allister by 29 May 2015, the Committee would have to give consideration to recommending to the Assembly that a sanction be imposed.

27. Mr Wilson did not apologise to Mr Allister by 29 May. He informed the Committee that he would not apologise to Mr Allister for this comment.

28. It is highly regrettable that Mr Wilson did not apologise to Mr Allister. Both the Commissioner and the Committee had concluded that he had breached the Code of Conduct. Mr Wilson should have acknowledged and accepted this outcome and apologised for his comment. An appropriate apology from Mr Wilson to Mr Allister would, in the Committee's view, have provided a fitting and proportionate resolution to the matter.

29. Standing Order 69B (2) provides that, in consideration of a report from the Committee on Standards and Privileges where the Committee has found that a member has failed to comply with a provision of the Code of Conduct, the Assembly may impose a sanction upon that member. The Committee believes that Mr Wilson's decision not to apologise means it should recommend that the Assembly impose a sanction upon him for his failure to comply with the Code.

30. Having considered the matter carefully, and having had regard to Mr Wilson's failure to apologise, the Committee has agreed that Mr Wilson should be censured by the Assembly. This is a proportionate sanction relevant to the seriousness of the breach.

31. The Committee is satisfied that the imposition of this sanction is both prescribed by law and necessary in a democratic society for the protection of the reputation or rights of others. In coming to this position, the Committee again balanced Mr Wilson's right to freedom of expression and the public interest in such freedom against the public interest in proper standards of conduct by Members in order to protect the reputation and rights of others.

32. The Committee shall therefore bring forward a motion for the Assembly to censure Mr Wilson.

33. The Committee takes this opportunity to remind all Members of the importance of treating others with respect. The Committee has brought forward a new Code of Conduct for the Assembly's agreement and it continues to include principles of Respect and Good Working Relationships. These principles respectively provide that Members should show respect and consideration for others at all time and should work responsibly with other Members of the Assembly for the benefit of the whole community. And, while the new Code upholds Members' right to freedom of expression, Members are nonetheless required not to subject anyone to unreasonable and excessive personal attack.

Download the full report here.