(Image: NQ)
Scotland’s ethics watchdog has defended a decision to destroy councillor freedom of speech case files after just 12 months, insisting that keeping them for five years was unnecessary.
The Herald revealed that the Standards Commission for Scotland is facing a formal investigation by the nation's records regulator over the destruction of records from dozens of 'freedom of speech' disciplinary cases.
National Records of Scotland has confirmed there are “sufficient grounds” to examine whether the Standards Commission for Scotland failed to comply with an agreed records management plan.
The commission destroyed 24 case files in June after it changed its retention policy, meaning records of hearings held between January 2024 and July 2026 are no longer held.
It came as a judge found it had acted unlawfully in the handling of 'freedom of speech' evidence involving a misconduct case against Glasgow councillor Fiona Higgins.
The Standards Commission said the files were destroyed after it reviewed its retention policy to comply with data protection requirements not to retain personal information for longer than necessary.
Lorna Johnston, the Standards Commission for Scotland’s executive director, has told The Herald that while the data protection law does not specify how long hearing case files must be retained, the watchdog had judged 12 months to be appropriate.
A leading public law professor 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 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.
Adam Tomkins (Image: PA)
Fiona Higgins, who is engulfed in a battle with the commission over her own 'freedom of speech' misconduct case, said: “The retention period was cut drastically from five years to one, without notifying councillors, while three court cases raising human rights and procedural fairness issues were live. That timing demands explanation.
“Keeping the final ruling cannot substitute for preserving evidence of how the process was shaped. Accountability must include the commission staff’s role. "
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The decision has drawn criticism from councillors who fear that shorter retention periods will undermine transparency and make it harder to scrutinise disciplinary proceedings. It comes amid wider concerns that Scotland’s standards system is restricting councillors’ freedom of speech and deterring elected representatives from challenging those in power.
Ms Johnston said the published decisions record the evidence considered, submissions made and reasons for rulings, while files involved in appeals are retained until a year after the final court decision.
The Herald learnt that as of mid-August, the Standards Commission had only one retained case files in respect of 15 hearings held between January 1, 2024 and July 18, 2026. Files for the remaining 24 cases held between those dates were destroyed in June.
The new policy has raised questions about how long records underpinning disciplinary proceedings should be kept, particularly when councillors dispute the evidence used against them or argue that decisions have restricted their freedom of speech.
In her response to questions, Ms Johnston admitted neither the UK General Data Protection Regulation nor the Data Protection Act 2018 specified how long organisations should retain hearing case files.
She said data protection rules included requirements to limit the purpose for which personal information was held and to avoid retaining more information than necessary.
Quoting guidance from the Information Commissioner’s Office, Ms Johnston wrote: “information can become a liability if it is not properly managed. You should know what information you hold, why you hold it, how sensitive it is, and how it should be managed. You should keep information for as long as you need it and dispose of it when you no longer have a reason to keep it.”
Glasgow councillor Fiona Higgins has been spearheading a fight for freedom of speech for elected representatives (Image: Colin Mearns)
Ms Johnston said the commission had considered 12 months to be an appropriate retention period because the written decisions contained a detailed account of the evidence and submissions considered by hearing panels, together with their approach, findings and reasoning.
She said those decisions also included any consideration of Article 10 of the European Convention on Human Rights, which protects freedom of expression.
The commission’s case files contain correspondence between the watchdog, the Ethical Standards Commissioner and the councillor involved, or their representative. They also include documents submitted by the parties for consideration by a hearing panel, standard correspondence notifying councils and complainants of decisions, and internal correspondence and information about administrative arrangements.
Ms Johnston argued that the substantive information held on a case file was provided to the parties before a hearing and that the written decision was sent to them afterwards.
She also pointed to the statutory right of councillors to appeal against hearing decisions within 21 days under section 22 of the Ethical Standards in Public Life etc. The grounds for an appeal include an error of law, procedural impropriety in the hearing, an unreasonable exercise of the Commission’s discretion, or a finding that was not supported by the facts found to be proved.
Ms Johnston said that, where an appeal was lodged, the case file would be retained for a year after the final court decision.
She said: “As such, no information is destroyed before any appeal has concluded.”
She said that, because written decisions were detailed and files were retained beyond the initial 21-day appeal period — and for a further year after a final court decision where an appeal took place — the commission did not consider it necessary to keep hearing case files for five years.
Minutes of the Standards Commission’s meeting in May show the changes were intended to ensure records contained a suitable level of detail, retention periods were in line with statutory and business requirements, and policies reflected current practice.
However, the record does not provide a detailed explanation of why members settled on a 12-month retention period rather than a longer period.
Ms Johnston said there was no requirement to consult the Information Commissioner’s Office or National Records of Scotland before changing the policy. She said the retention schedule formed part of the supporting evidence for the commission’s records management plan, which is subject to a progress review by National Records of Scotland every two years.
The Commission’s defence comes amid wider concerns about the operation of Scotland’s system for investigating and disciplining councillors, including disputes about freedom of expression, evidence and procedural fairness.
Greg Lennon, a North Lanarkshire councillor suspended for two months after a standards hearing, has criticised the use of the code of conduct against elected representatives who scrutinise those in power.
He said: “The more important point is the arbitrary "code of conduct" is now the weapon of choice for suppressing scrutiny, what a chilling thought for any democratic society.”