(Image: NQ)
A leading public law professor has raised serious concerns about whether Scotland’s ethics body is complying with the law protecting freedom of speech.
Professor Adam Tomkins, John Millar Professor of Public Law at the he University of Glasgow, said he had been aware of growing concerns about the watchdog’s approach and questioned whether it understood the legal protections or was declining to apply them.
His warning comes amid a wider debate about Scotland’s system for investigating and disciplining councillors, with cases involving public criticism of council decisions and senior officials raising questions about how freedom of expression is balanced against the rules governing conduct in public office.
The Herald has there were 244 distinct councillor code of conduct cases investigated in 2024/25, compared with 111 ten years earlier, sparking concerns over the curbing of the human rights of elected representatives in Scotland who are elected to fight for their communities.
“I do not know if this is because the Standards Commission does not understand the law or if the Standards Commission understands it perfectly well but for some reason declines to apply it,” said Mr Tomkins, who specialises in constitutional law.
The former Tory MSP has been on the other end of Scotland's ethics system five years ago when he was accused and cleared of a code of conduct breach in a tweet about another member of Holyrood.
The Ethical Standards Commissioner initially concluded the former MSP had breached parts of the Code of Conduct for MSPs which relate to “courtesy and respect” in a tweet posted on March 1. But the parliamentary standards committee convener Martin Whitfield said it did not agree with those findings – adding that this was a unanimous decision.
Mr Whitfield noted that the code of conduct “specifically excludes” comments where members are expressing political views in their capacity as a member of a political party or organisation.
The decision came six months after Mr Tomkins, who had been an MSP for the Glasgow region, left the Scottish Parliament.
In a general assessment of the current protection given to political speech, he said: “I have the gravest concerns that the Standards Commission is not acting compatibly with the law of free speech in the UK.”
Tomkins said elected representatives did not have unlimited freedom to say whatever they wanted, but argued that political speech could be punished only where there was a compelling justification.
“Freedom of political speech does not mean that even elected representatives have the licence to say anything they please, but it does mean that their speech can be sanctioned only if a compelling countervailing consideration makes the sanction absolutely necessary. This is a very high bar to clear."
The legal protection at the centre of the debate is Article 10 of the European Convention on Human Rights, which protects freedom of expression and is given effect in UK law through the Human Rights Act 1998. It is not an absolute right, but any restriction must be justified in law and necessary and proportionate in a democratic society.
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The Standards Commission adjudicates on alleged breaches of the councillors’ code of conduct, while the separate Ethical Standards Commissioner investigates complaints and can refer cases to the commission. The code requires councillors to treat others with courtesy and respect and includes provisions governing public criticism of council employees. The Commission’s own guidance recognises that freedom of expression must be considered when councillors are disciplined for political speech.
But questions about how the rules affect political criticism have continued, particularly where councillors challenge council leaders or senior officials over matters of public interest.
North Lanarkshire councillor David Crichton was suspended for one month after a Standards Commission panel found that a Facebook post about a review of council facilities breached the code. The panel found that the post breached provisions concerning courtesy and respect, and the treatment of council employees.
North Lanarkshire councillor David Crichton
The case is significant because the Ethical Standards Commissioner had argued that restricting Mr Crichton’s freedom of expression could not be justified. The hearing panel disagreed and found that a restriction on his rights under Article 10 was justified. The decision became important in the subsequent case involving fellow North Lanarkshire councillor Greg Lennon, whose comments concerned the same review of council facilities.
Mr Lennon was suspended for two months after a hearing in December 2024. The panel found that he had breached the code through comments about the review and the council’s communications operation. It concluded that his statement about the role of the chief executive was misleading and that naming the official amounted to an unfair personal attack.
In Mr Lennon’s case, the Ethical Standards Commissioner initially concluded in his report that restricting the councillor’s Article 10 rights could not be justified. At the hearing, however, he departed from that position, saying he felt obliged to treat the panel’s findings in the earlier Crichton case as a precedent.
The case has since prompted questions about the weight given to freedom of expression, the use of earlier panel decisions and the process by which the commissioner’s position changed.
The most recent court challenge to the system involves Glasgow councillor Fiona Higgins, who faced a complaint after posting comments on social media about council budget proposals and allegations that information about cuts to teaching posts had been presented misleadingly. The complaint was made by former council finance director Martin Booth.
Glasgow councillor Fiona Higgins has been fighting for for freedom of speech for councillors
Before the disciplinary hearing, the Standards Commission refused to admit a number of documents Ms Higgins wanted to use in her defence. She argued that the material was relevant to the factual basis for her comments and to whether any restriction on her freedom of expression would be justified.
In August 2026, the Court of Session ruled in Higgins’s favour on the dispute over evidence, finding that the commission’s handling of the documents was unlawful. The judgment highlighted the importance of considering the context behind a councillor’s words when deciding what evidence should be admitted, particularly where the right to freedom of expression is engaged.
Ms Higgins has spoken about the personal impact of the proceedings and warned that the experience of facing a complaint can affect how councillors approach their work. Her case has raised concerns about whether disciplinary processes can deter elected representatives from publicly questioning decisions taken by council officials.
The legal issue is not whether councillors should be free to make any statement without consequence. The code exists to uphold standards in public life and protect people from unacceptable conduct, including bullying, harassment and personal abuse. The question is whether sanctions for political expression are justified under Article 10 and whether the decision-making process gives proper weight to the public interest in scrutiny and debate.
The Standards Commission said its approach to Article 10 is as set out in its advice notes which has also been tested by the courts.