A SCOTTISH Labour councillor embroiled in a freedom of speech row has seen a judge rule against the ethics watchdog's bid to block key documents from being admitted as evidence.
Fiona Higgins, a Glasgow city councillor, has been attempting to block disciplinary action being taken against her over critical social media posts.
She reportedly posted an accusation that senior council officials have misled councillors about proposed cuts to the education budget.
It is understood that she made the comments after obtaining internal council emails about the proposals through freedom of information requests.
In one post from August last year, Higgins accused a former city council finance director of abusing influence to "wilfully and cynically mislead councillors and the public" over proposed teacher cuts before calling for an investigation.
The Standards Commission for Scotland, the country's ethics watchdog, had refused to admit seven documents Higgins had hoped to use as evidence in her case.
Lord Sandison has now ruled that the commission had no lawful basis for refusing them.
Sandison said the seven documents would be important in establishing a factual basis for her comments, allowing the court to assess whether her right to freedom of expression had been unlawfully interfered with.
The documents include email chains and budget materials relating to a presentation on the council's education budget proposals.
The ruling means the documents must now be admitted and can be used in the proceedings.
Lord Sandison said the commission had "shut its ears" to Higgins's proposed submissions by preventing the disputed material from being used at the substantive hearing.
He ruled: "By refusing to allow the productions in issue to be used at the substantive hearing, the commission was not allowing the petitioner to be properly heard. It had shut its ears to her proposed submissions and in so doing acted unlawfully."
And he warned that excluding material which might be relevant "risks creating the impression, accurate or not, that the issue has been pre-judged".
He found the commission’s decisions had "no logic to them, and were therefore irrational".
Peter Watson, solicitor advocate for Higgins described the judgment as an "important outcome both for Fiona Higgins personally and for the principle that those facing disciplinary proceedings before public bodies are entitled to place before the decision-maker the evidence they consider material to their defence".
Higgins added: "I have always maintained that I am entitled to a fair hearing and that the documents I sought to rely upon were directly relevant to my position.
"The court has agreed with that assessment in respect of the key documents. I look forward now to the opportunity to present my full case before the Standards Commission with those documents in place.”
The Standards Commission's misconduct hearing would aim to determine if her comments breached Glasgow's Councillors' Code of Conduct.
Higgins has sought to use the protection of Article 10 of the European Convention on Human Rights, which protects freedom of expression, in her defence.
Higgins has also argued that the material contained within the seven documents places her statement into a wider context and explains why she made the statement.
Lord Sandison agreed that the Article 10 issue meant the factual background to the post was important.
He said: "A close assessment of the facts and circumstances would be necessary in order to determine the application of Article 10 to the post."
He added that the excluded productions demonstrated "the strength of the factual basis for the value judgments in the post" and showed "the seriousness of the issues and the acuity of the public interest" in the matters to which they related.
The judge's ruling does not determine whether Higgins breached the code of conduct. Instead, it determines what evidence the Standards Commission must be permitted to consider when it hears the case.
The misconduct proceedings against Higgins will therefore have to proceed on the basis that the seven documents cannot be excluded in the way the commission had sought.
