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Guidance |
DISPENSATIONS NOTE TO LOCAL AUTHORITIES IN RESPECT OF FINANCIAL AND NON-FINANCIAL INTERESTS
Contents
Introduction Paragraphs 1 - 6
Council House Tenancies Paragraphs 7 - 9
Membership of Outside Bodies Paragraphs 10 - 13
Planning Decisions within the Cairngorms National Park Area Paragraphs
14 - 17
Individual Dispensations Paragraphs 18 - 20
Circulation Paragraphs 21
1. The Councillors' Code of Conduct ('the Code'), made under section 1 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ('the Act'), has been approved by resolution of the Scottish Parliament and the Scottish Ministers have fixed 1st May, 2003 as the date from which the Code has effect.
2. Section 5 of the Code deals with Declaration of Interests and paragraphs 5.20 and 5.21 provide for the granting of dispensations by the Standards Commission for Scotland ('the Commission') to Councillors to allow them to participate in discussion and voting on certain matters where, due to financial or non-financial interests, they would otherwise be prohibited from such participation.
3. The Commission has, in the course of discussions and meetings with Councils and Public Bodies throughout Scotland, been invited to consider issuing general dispensations in certain limited circumstances.
4. Having considered the matter carefully, the Commission has 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.
5. The Commission has also decided to issue dispensations in respect of Councillors of Local Authorities within the area of the Cairngorms National Park Authority, in order to allow them to participate in discussion and voting on certain planning applications.
6. This Dispensations Note supersedes the general Dispensations Note issued on 31 March 2003 and the specific Dispensations Note for the Cairngorms National Park Authority area issued on 29 April 2004 and comes into immediate effect.
7. Since 1966, Councillors, who have also been council house tenants, had a general dispensation to speak and vote on matters concerning council houses (apart from when the matter relates to the house of the Councillor in question). This dispensation has had the effect of removing the disability latterly contained in sections 38 and 60 of the Local Government (Scotland) Act 1973. Those provisions of the 1973 Act were repealed when the Code came into effect, and were replaced by the terms of the Code itself. Councillors who are council house tenants now require to register their interests as council house tenants under section 4 of the Code and in terms of section 5 of the Code they would then require to declare these interests and not take part in discussion and voting on council house issues.
8. The Commission, having considered the matter, is of the view that it would be in the public interest to continue the dispensation to allow such Councillors to participate in discussion and voting on these issues.
9. (i) Accordingly, in terms of paragraphs 5.20 and 5.21 of the Code, the Commission grants a dispensation to any Councillor who has registered an interest in the tenancy of council housing accommodation (including any garage) under section 4 of the Code, so as to enable the Councillor to take part in the consideration and discussion of, and to vote upon, council house matters.
(ii) This dispensation does not apply in respect of any matter which is concerned solely or mainly with the particular tenancy from which an individual Councillor's interest derives.
(iii) This dispensation does not apply to any Councillor who is in arrears of rent in respect of his or her council house (or garage as appropriate).
(iv) This dispensation applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in paragraph 5.4 of the Code.
10. Councillors are frequently nominated or appointed by their Councils to outside bodies. The contributions which they make are generally much appreciated by the organisations concerned. Moreover, Councils have the benefit of the additional knowledge and expertise which Councillors gain through membership of these organisations in discussing a range of issues within the Council Chamber.
11. Where a Councillor has an interest as a member of an outside body, such a Councillor may be obliged to declare an interest under section 5 of the Code when matters arise concerning the outside body to which he or she has been nominated or appointed and may also be unable to take part in the discussion or voting on that matter.
12. Having given careful consideration to the issues involved, the Commission is of the view that the public interest would be served if - in certain circumstances - Councillors should be allowed to participate in discussion and voting on matters relating to certain outside bodies to which they have been appointed directly by, or on the nomination or with the approval of, their own authority.
13. (i) Accordingly, in terms of paragraphs 5.20 and 5.21 of the Code, the Commission grants a dispensation to any Councillor who has been nominated or appointed or whose appointment has been approved by the Councillor's local authority and who has registered an interest under section 4 of the Code as a member of:-
(a) a devolved public body as defined in schedule 3 to the Act,
(b) a public body established by enactment or in pursuance of statutory powers or by the authority of statute or a statutory scheme,
(c) a body with whom there is in force an agreement which has been made in pursuance of section 19 of the Enterprise and New Towns (Scotland) Act 1990 by Scottish Enterprise or Highlands and Islands Enterprise for the discharge by that body of any of the functions of Scottish Enterprise or, as the case may be, Highlands and Islands Enterprise,
(d) a body being a company -(i) established wholly or mainly for the purpose of providing services to the Councillor's local authority; and
(ii) which has entered into a contractual arrangement with that local authority for the supply of goods and services (or either of them) to that local authority,so as to enable the Councillor to take part in the consideration and discussion of, and to vote upon, any matter relating to the body in question.
(ii) The dispensation does not apply in respect of any matter of a quasi-judicial or regulatory nature where the body in question is applying to the local authority for a licence, a consent or an approval, is making an objection or representation concerning such a licence, consent or approval or is the subject of a statutory order of a regulatory nature, made, or proposed to be made, by the local authority.
(iii) This dispensation applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in paragraph 5.4 of the Code.
(iv) The Councillor is required to declare his or her interest at all meetings where matters relating to the body in question are to be discussed.
Decisions on Planning Applications where a Councillor is also a Member of the Cairngorms National Park Authority ("CNPA")
14. Decisions on planning applications taken by a Council (that is a Council within the area of the CNPA) where a councillor is also a member of the CNPA and the CNPA have submitted comments to the Council or are considering calling-in the applications raise issues relating to conflict of interest.
15. The Commission, having considered the matter, is of the view that it would - in certain circumstances - be in the public interest to grant dispensations to allow such councillors to participate in discussion and voting on certain issues.
Decisions on Planning Applications where the CNPA have submitted comments to the Council
16. (i) In terms of paragraphs 5.20 and 5.21 of the Code, the Commission grants a dispensation to any councillor who is also a member of the CNPA where the CNPA have submitted comments, representations or objections to the Council in relation to a planning application so as to enable the councillor to take part in the consideration and discussion of, and to vote upon, the determination of the planning application by the Council.
(ii) This dispensation only applies where the councillor has not participated in the decision to make comments, representations or objections and has not attended during the item of the relevant CNPA meeting to decide on the comments, representations or objections to be submitted.
(iii) This dispensation applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in para 5.4 of the Code to deal with the planning application.
Decisions on Planning Applications where the CNPA have decided not to call-in the Applications
17. (i) In terms of paras 5.20 and 5.21 of the Code, the Commission grants a dispensation to any councillor who is also a member of the CNPA where the CNPA have decided not to call-in a planning application so as to enable the councillor to take part in the consideration and discussion of, and to vote upon, the determination of the planning application by the Council.
(ii) This dispensation only applies provided the CNPA have, in reaching their decision not to call-in, confined themselves to the question whether the application should be called-in and not discussed the merits of the application in so deciding.
(iii) This dispensation applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in para 5.4 of the Code to deal with the planning application.
18. In addition to the general dispensations described above, individual Councillors may wish to apply for a dispensation to allow them to take part in the discussion of, and voting on, a matter where, in terms of the Code, they might otherwise be prohibited from taking part.
19. In such circumstances, applications should be submitted to The Secretary, Standards Commission for Scotland, Forsyth House, Innova Campus, Rosyth Europarc, Rosyth, KY11 2UU, setting out in detail all relevant information, including the reasons why a dispensation is sought.
20. The Commission will respond as soon as it reasonably can after receipt of all information.
21. Copies of this Dispensations Note should be issued to all Councillors of all local authorities and all Members of the Cairngorms National Park Authority as soon as practicable.
The Standards Commission for Scotland,
Forsyth House,
Innova Campus,
Rosyth Europarc,
ROSYTH
KY11 2UU
28 July 2004
© Standards Commission for Scotland 2002–2010