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Guidance |
ETHICAL STANDARDS IN PUBLIC LIFE IN SCOTLAND - GUIDANCE NOTE TO LOCAL AUTHORITIES IN SCOTLAND
Contents
Introduction Paragraphs 1 - 6
Part A: The New Ethical Framework The Relationship between the Commission
and Councils Paragraphs 7 - 11
Part B: The Duties of Councils to Promote High Standards Of Conduct Paragraphs
12 - 39
Part C: The Registration of Interests Paragraphs 40 - 46
Part D: The Activities of Suspended Councillors Paragraphs
47 - 55
Review Paragraph 56
Circulation Paragraph 57
1. The Ethical Standards in Public Life etc. (Scotland) Act 2000 ('the Act') introduced a new ethical framework for public life in Scotland. As one of the earliest statutes passed by the Scottish Parliament, the Act underlines the strong commitment to the promotion of high standards in public life by the Scottish Executive and the Parliament itself.
2. The Code of Conduct for Councillors and the individual Codes of Conduct for Devolved Public Bodies have been approved and the Scottish Ministers have fixed 1st May, 2003 as the date on which they will come into effect. 1
3. The Standards Commission for Scotland ('the Commission') is responsible for the enforcement of the Codes. It also has responsibility for issuing guidance to assist Councillors and Members in observing the Codes.
4. The Commission has held a series of meetings with Councils and Public Bodies throughout Scotland. In the course of these a number of issues were identified which, it was generally accepted, could usefully be the subject of guidance from the Commission.
5. Having consulted on its draft proposals, the Commission now issues guidance in respect of the following issues:-
Part A - The New Ethical Framework: The Relationship between the Standards Commission and Councils.
Part B - The Duties of Councils to promote high standards of conduct.
Part C - The Registration of Interests.
Part D - The Activities of Suspended Councillors.
6. This guidance is directed to Councils and Councillors. It is also directed to co-opted Members of committees and sub-committees who are not elected Councillors. Separate - although similar - guidance is being issued to Devolved Public Bodies and to their Members.
Part A - The New Ethical Framework: The Relationship between the Commission and Councils
7. The promotion of high standards in public life is essential to ensure and reinforce public confidence in the activities and responsibilities of Councils. The Commission wishes to work in partnership with those who serve the people and communities of Scotland to ensure that, together, the highest possible standards of conduct in public life can be secured.
8. The Commission, therefore, wishes to support the work of Councils in striving to achieve the highest standards of conduct and, with this in mind, wishes to make itself readily available to facilitate this. The Commission's address and contact numbers are set out in Appendix 1 to this Note. In addition the Commission has established a web-site at www.standardscommissionscotland.org.uk , which is in course of being developed and is intended to become an important source of information about the new ethical framework in Scotland in general and the work and activities of the Commission in particular.
9. The Commission wishes to stress the importance which it attaches to Councils embracing the new ethical framework and ensuring that they have effective support systems in place to assist Councillors in applying high standards of conduct.
10. Councils are reminded of the importance of high standards of conduct as a key part of arrangements for corporate governance. In this connection, the Commission commends the advice given by Audit Scotland in its Code of Audit Practice dated July, 2001.
11. Councils also have a part to play in ensuring that the public are made aware of the new ethical framework in Scotland and how it is to be regulated. With this in mind, the Commission advises Councils to facilitate the process by ensuring that information about the Act, the Councillors' Code of Conduct, and the roles of the Commission and its Chief Investigating Officer is widely available at their various offices and public buildings. Councils are further invited to ensure that this information is available at all public libraries and that the Code of Conduct is available directly, or through links, on their own web-sites.
Part B - The Duties of Councils to Promote High Standards of Conduct
12. All Councils have duties of -
a) promoting the observance by their Councillors of high
standards of conduct, and
b) assisting them to observe the Councillors' Code of Conduct.
Code of Conduct and Guidance
13. In the first instance, Councils should ensure that all Councillors have their own copies of the Councillors' Code of Conduct and this Guidance Note. Attention should be drawn to the additional material which the Commission will provide from time to time on its web-site.
14. During the consultative process, certain areas in relation to the Code were identified where guidance was sought and the Commission has considered it would be useful to provide such guidance in a number of such areas. The following paragraphs 15 to 29 contain this guidance. The guidance on Taking Decisions on Individual Applications in paragraphs 21 to 29 is issued on an interim basis and the Commission will welcome comments on this interim guidance.
Application of the Code
15. The Act and the Code apply only to elected Councillors and not to co-opted Members of local authority committees. Co-opted Members are, however, expected to apply the same high standards of conduct as elected Councillors.
16. Local authorities should, therefore, expect co-opted Members to comply with the Code and this should be a condition of appointment. In cases where the authority has no discretion over the appointment (such as the Church of Scotland and Roman Catholic Church representatives on education committees) the authority should seek confirmation from the appointing authorities that they will require their appointees to comply with the Code.
Gifts and Hospitality
17. A Councillor must record any gifts or hospitality received with the proper officer in the same way as recording any registerable interests (see Part C below). It is not, however, necessary to record any gifts or hospitality as described in paragraph 3.7 (a) to (c) of the Code.
Declaration of Interests - Dispensations
18. The Commission considers there are circumstances where the Code may prohibit Councillors from participating in discussion and voting on certain matters within the Council Chamber due to certain financial or non-financial interest but where it may be in the public interest to allow such participation.
19. The Commission has, therefore, decided to issue general
dispensations in respect of Councillors who are-
(a) council house tenants, or
(b) members of certain outside bodies,
in order to allow them to participate in Council business dealing with matters relating to council houses or those outside bodies respectively.
20. The terms of these general dispensations - and the arrangements proposed for dealing with individual dispensations - are set out in the Commission's separate Dispensations Note dated 31st March, 2003.
Taking Decisions on Individual Applications
21. Section 7 of the Code deals with decisions which Councillors have to make in relation to individual applications, particularly in relation to planning applications.
22. The principles set out in these provisions relating to the need to ensure a proper and fair hearing for applications do not apply only to planning applications, but to a number of other applications of a quasi-judicial or regulatory nature which the local authority may also have to consider.
23. These will include applications for taxi, betting and gaming, liquor, theatres and cinemas and street trader's licences and a range of other similar applications where the issuing of a statutory approval or consent is involved.
24. As already indicated, section 7 deals in particular with planning matters. Councillors have a key role in establishing planning policies for their area and they are fully entitled to express their views or advocate proposals on the making, approval or amendment of the development plan (that is the structure plan and the local plan).
25. When it comes to dealing with planning applications, different considerations apply. The Code emphasises the key importance of ensuring that all applications are dealt with fairly and - equally importantly - are seen to be dealt with fairly. In dealing with a particular application Councillors must have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. They must disregard considerations that are immaterial for planning purposes and be careful to avoid giving any impression of bias.
26. Where a Councillor has a responsibility - either at a committee or at the Council - for dealing with planning applications, then he or she must not have - or be seen to have - prejudged any application before the proper occasion for deciding on the application, that is when all the relevant material considerations will be before the meeting that will determine the application.
27. A Councillor should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular recommendation on a planning application, (or on a planning agreement or on taking enforcement action) where the Councillor has a responsibility for dealing with the planning application. If the Councillor does so, then he or she should declare an interest and not take part in the debate.
28. This should not, however, be taken as precluding the Councillor from raising issues or concerns on any of these matters with the planning officers concerned. Indeed, a Councillor may well have an important contribution to make in respect of an individual planning application or on what the Council should include in a planning agreement. It is entirely appropriate for Councillors on the planning committee to make known what representations they have received on a pending planning application, to attend public meetings and to assist constituents in making their views known to the relevant planning officer, provided that at no time does the Councillor express a "for" or "against" view by advocating a position in advance of the planning committee meeting to decide upon a particular application.
29. Councillors may be asked to attend site visits in connection with a pending planning application. If they do, they should follow the procedures for such visits set out by their authorities. These procedures should be consistent with the provisions of the Code and this guidance.
30. The Councillor may also be the person who is first made aware of unauthorised development and he or she might - quite properly - wish to refer the matter to the Council for possible enforcement action.
31. If a Councillor who does not have a responsibility for dealing with planning applications wishes to support, oppose, or promote a particular recommendation on an individual application, he or she should do so in an open and transparent manner consistent with proper planning procedures. The Councillor should not, however, seek privately to lobby other Councillors who have a responsibility for dealing with the application in question.
32. All local authorities will have their own procedures for dealing with planning applications. A number adopt a system in which most applications are dealt with by local or area planning committees with the remaining being dealt with by a central Planning Committee. Some also have procedures where decisions can be referred from a Planning Committee to the full Council for final determination.
33. In the circumstances described in paragraph 31 above, it is perfectly in order for Members to make their provisional views known as part of the discussions at these earlier meetings. As indicated in paragraph 26 above, Councillors who have responsibility for the decision should only make a final judgement on the application when all the relevant material considerations are before the meeting that will, in fact, determine the application. These considerations can quite appropriately include the views of a local or area Committee for a central Planning Committee, or the views of a Planning Committee for the full Council.
Training
34. Councils should also make arrangements to hold or attend training and induction sessions on ethical standards and they should strongly encourage attendance by all of their Councillors and senior officials at such sessions. The Standards Commission is not in a position to provide training programmes itself but it is willing to facilitate any such programmes organised by established training providers, (such as representative, professional or training associations). It also wishes to work with Councils (and others including COSLA and professional associations) on the development of good practice guidelines to assist Councillors in achieving high ethical standards in the conduct of Council business.
35. The training sessions should cover the new ethical framework, including the Act, the relevant Code of Conduct and the enforcement regime, and they should emphasise the personal responsibilities of Councillors. Training sessions should be offered to Councillors as soon as possible after the elections on 1st May, 2003 and all Councillors should have been offered the opportunity of attending such sessions not later than by the end of September, 2003.
36. When Councils are re-constituted (for example, after local government elections) arrangements should be made to hold training sessions for new Councillors.
37. Councils should also make suitable arrangements for periodic refresher courses for Councillors.
Advice from Senior Officials
38. As part of the support provided to them, it is important that Councillors should have ready access to advice from nominated senior officials (such as the Chief Executive or the Monitoring Officer) on the new framework in general, and on the relevant Code of Conduct in particular.
39. It should always be clearly pointed out by officials to Councillors that it is the latter's personal responsibility to ensure that they act at all times in compliance with the provisions of the Code of Conduct. This will be particularly important when giving advice in relation to matters such as registration of interests and declaration of interests.
Part C - The Registration of Interests
40. All Councils have a duty to set up, maintain and make available for public inspection a register of the interests of their Councillors which the Code requires to be registered. They must also appoint a proper officer to maintain the register.
41. Regulations have now been made by Ministers 2 requiring all Councillors to register their relevant interests by 1st June, 2003 or one month after the date of the declaration of acceptance of office, whichever is the later.
42. Councils should ensure that Councillors are aware of the importance of registering all their relevant interests within this timescale. Councils should also make arrangements for Councillors who wish to do so to consult the nominated senior official(s) to help them in completing their own notices for the Register of Interests in accordance with the requirements of the Code and the Regulations.
43. For the purposes of public inspection, Councils should ensure that the Register should be made available not later than 1st June, 2003. The principal Register should be retained at the head offices of Councils.
44. The Register should also be available for inspection by the public electronically and Councils should prepare a page for this purpose on their web-site and ensure it is operational not later than 31st August, 2003. The information should also be available at other offices and buildings of Councils, including public libraries and any member of the public inspecting such information at any of these locations should be entitled to receive a printed copy of the information on request. The Commission will provide a facility on its own web-site so that members of the public, on accessing that site, can link to the relevant pages on Councils' web-sites. The electronic version of the Register need not include such personal address information as would compromise Councillors personal security, the full details being available for public inspection as above. Advice in relation to personal security can be obtained from Monitoring Officers and from the Commission.
45. It is appreciated that there may be a gap between the registering of interests in the principal Register and the copying of that information to web-sites. It will be important, therefore, that web-sites make clear the date at which the information given is accurate. Councils should aim to have their web-sites updated within one month of the receipt of the information.
46. Councillors are required to update their entries in the Register of Interests within one month of their circumstances changing. Appropriate arrangements should be made to ensure that Councillors are advised of the importance of keeping their entries in the Register under review and these arrangements should include the issue of a reminder at least every six months. In relation to paragraph 4.19 of the Code, there is no requirement to register residences outwith Scotland. In exceptional circumstances where such an interest may affect a matter before the Council, it will be for individual Councillors to declare that interest all in terms of the requirements of the Code.
Part D - The Activities of Suspended Councillors
47. In cases where a Councillor has been found to have breached the Councillors' Code, the Commission may impose the sanction of partial suspension, or the sanction of full suspension, of the Councillor. In both cases the maximum period of suspension is one year.
48. Partial suspension means that the Councillor can be suspended from being entitled to attend one or more, but not all, of the following:
a) all meetings of the Council;
b) all meetings of one or more committees or sub-committees of the Council;
c) all meetings of any other body on which that Councillor is a representative
or nominee of the Council.
49. Full suspension means that the Councillor is not entitled to attend any of the meetings of the Council; or of any committee or sub-committee of that Council; or meetings held by any other body on which the Councillor is a representative or nominee of the Council.
Partial Suspension and Full Suspension
50. In all cases, whether of partial or full suspension, the entitlement of the Councillor to attend meetings will be limited or, indeed, removed altogether. Attendance at, and participation in, meetings is one of the most important responsibilities in public office. The Commission recognises that constituents may perceive that a limitation in entitlement to attend meetings will adversely affect the Councillor's ability fully to represent their interests. Accordingly, Councils should make appropriate arrangements to provide representative cover for the suspended member for the benefit of his or her constituents.
51. Councils should also consider carefully whether it
would be appropriate for the Councillor to continue to be consulted on
various issues as the local member. Particular thought should be given
to regulatory or quasi judicial matters where the Councillor has been
suspended from the committee appointed to deal with such matters.
Partial Suspension
52. Where the Councillor has special responsibilities (such as being a Spokesperson in respect of particular matters or Chair or Vice-Chair of a particular committee or sub-committee), and the Councillor has been suspended from Council meetings or meetings of the committee or sub-committee dealing with that function, the Councillor must not undertake these special responsibilities during the period of suspension. Moreover, the Council should cease payment of any special responsibility allowance during the period of suspension.
53. Where a Councillor has been suspended from attending meetings of another body on which the Councillor is a representative or nominee of the Council, the Council should consider nominating another Councillor as the Council's representative or nominee on that body.
Full Suspension
54. In a case of full suspension, the Councillor should not undertake any special responsibilities which have been assigned to him by the Council and the Council should cease payment of any special responsibility allowance during the period of suspension.
55. Depending on the length of the period of suspension, the Council should also consider appointing other Councillors to the vacancies on committees or sub-committees and to any other body where the Councillor has been the Council's representative or nominee consequent on the suspension of the Councillor.
56. The Commission intends to keep its guidance under review. It welcomes comment on its current guidance, and will consider issuing additional guidance where this might be thought helpful.
57. Copies of this Guidance Note should be given to all Councillors and co-opted Members of committees and sub-committees as soon as practicable after their election or appointment as the case may be.
The Standards Commission for Scotland,
Forsyth House,
Innova Campus,
Rosyth Europarc,
ROSYTH
KY11 2UU
28th July 2004
1 - See also the Ethical Standards in Public Life etc. (Scotland) Act 2000 (Commencement No. 3) Order 2003 and the Ethical Standards in Public Life etc. (Scotland) Act 2000 (Modification of Enactments) Order 2003.
2 - See the Ethical Standards in Public Life etc. (Scotland) Act 2000 (Register of Interests) Regulations 2003.
Mr D Stuart Allan
Chief Investigating Officer
Office of Investigations
The Standards Commission for Scotland
Forsyth House
Innova Campus
Rosyth Europarc
ROSYTH
KY11 2UU
Telephone: 01383 428033
Fax: 01383 428019
E-mail: investigations@standardscommission.org.uk
Ms Fiona Mackay
Secretary to the Commission
Office of Administration and Hearings
The Standards Commission for Scotland
Forsyth House
Innova Campus
Rosyth Europarc
ROSYTH
KY11 2UU
Telephone: 01383 428061
Fax: 01383 428020
E-mail: enquiries@standardscommission.org.uk
Web-site: www.standardscommissionscotland.org.uk
© Standards Commission for Scotland 2002–2010