24th May 2018
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Councillors must make collective judgement on windfarm for sake of democracy

Democracy will have “utterly failed” if councillors agree on Wednesday to adopt the “untenable” position that they cannot make a formal recommendation to Scottish ministers about the Viking Energy project, according to Shetland’s two parliamentarians.

Councillors are due to discuss a report from legal head Jan Riise which suggests that members have an irreconcilable conflict of interest due to their simultaneous role as trustees of Shetland Charitable Trust, which owns 45 per cent of the Viking Energy Partnership, and are therefore unable objectively to debate and comment on the application.

But North Isles MP Alistair Carmichael and Shetland MSP Tavish Scott have both taken issue with the notion that the council’s planning officials should submit a report directly to ministers in Edinburgh, bypassing the elected members.

The only input councillors would then have could be in being invited to take part in a series of informal “hearings” to gather views on all sides, which would then be transcribed and submitted along with the planners’ report.

Mr Scott said it would be an “absolutely extraordinary” stance for councillors to take, particularly at this late stage after the project had been under way for three years. He said in his view the only councillors who should not take part in any vote would be the trio – Bill Manson, Alastair Cooper and Allan Wishart – who are also directors of Viking Energy.

“I would broadly presume that all the other 19 members would be entirely within their democratic responsibilities to debate the matter and give a view on it,” said Mr Scott. “The implication of all councillors saying they cannot sit as democratically-elected members, and have a view on it, is that democracy has utterly failed.”

Mr Carmichael said that while he thought Mr Riise’s analysis of the problem was “faultless”, the proposal coming from that would be “untenable”.

He said: “This is the most important issue to hit Shetland for almost 40 years since the coming of Sullom Voe and for the council not to take a view on it risks rendering them irrelevant. There must be a solution; it’s not easy and it’s not immediately obvious but to say that there is no democratic and accountable decision to be taken here is just not an option.”

Mr Carmichael said he could understand why people might start asking what the point in electing councillors was, adding: “If questions of that sort start to be asked, the damage could be more significant than we realise even at this stage.”

At the weekly media briefing by senior council officials on Tuesday, Mr Riise staunchly defended his report, stating that there would be no chance of a special dispensation being granted for members to take part in a debate because it related to the planning process.

He said the legal basis for his recommendation was section 7 of the councillors’ Code of Conduct which states, among other things, that “you must not act on behalf of, or as an agent for, an applicant for planning permission with the council other than in the course of your professional role which you have registered”.

If councillors are found to have breached the code they can face sanctions by the Standards Commission such as suspension for a year or even disqualification for a period of up to five years.

Executive director of infrastructure Gordon Greenhill suggested that staging four hearings – perhaps in Aith, Brae, Dunrossness and Lerwick – would actually enhance the democratic process by freeing up members to represent their constituents’ views without having to worry about their capacity as a planning authority.

In view of his directorship, Mr Wishart has previously declared an interest and not taken part in charitable trust votes on Viking Energy, but has stated he found the situation whereby councillor-trustees were unable to fulfil their public duty “absurd”, but he said he had no problem with Mr Riise’s suggestion, which he insisted did not inhibit elected members from having their say on the project.

“I can still sit at a hearing and give my views, as can all the other councillors,” he said. “People are not inhibited as individual councillors from saying what they say, but there wouldn’t be a consolidated council decision.”

But Mr Scott suggested that councillors should follow the lead of convener Sandy Cluness, who said recently he believed the windfarm was too big in its current form, in expressing their view one way or the other.

If there was such a gaping democratic deficit, he continued, it would increase the chances of Scottish ministers giving the project the thumbs up, and it may leave many people in Shetland wondering “quite what the point of electing councillors is”.

Mr Scott fears that “if locally-elected members cannot give a view on it, the government will override all the public concern that exists” and said it would serve to make the case for a locally-held public inquiry “unanswerable”.

The convener said he did not see any problem with conflicts of interest and would be happy with having a vote on the issue. “It seems to me the case that the local authority members would have to express a view on something as big as Viking Energy. I would like to be able to represent the views of the folk that represent me.”

Planning board chairman Frank Robertson said he had “kept strictly out of” decisions relating to the project to date and was entirely comfortable with Mr Riise’s suggestion, which if adopted “frees the planning board and allows for a more independent hearing process, which in turn allows members to advocate for their community, be it for a windfarm or be it against it”.

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