Publication - Advice and guidance

On Board: A Guide for Members of Management Advisory Boards

Published: 31 March 2023
Directorate: Public Service Reform Directorate
Topic: Public sector
ISBN: 9781805256175

This guidance is for all those appointed by the Chief Executive to be a member of management advisory boards.

Ethics and Standards of Behaviour : Guidance Note 5

Overview

The Scottish public has high expectations of those who serve on the Boards of public bodies and the way in which they conduct themselves in undertaking their duties. As a board member, it is your personal responsibility to ensure that you meet these expectations by ensuring that your conduct is above reproach.

This section sets out the ways in which standards of conduct are maintained on Management Advisory Boards. It refers both to the Civil Service Codes (UK and Scottish) and to the ethical standards framework introduced by the Ethical Standards in Public Life etc. (Scotland) Act 2000.

Key Messages

Management Advisory Board members are not bound by the Ethical Standards in Public Life (Scotland) Act 2000, but they should comply with their Board's Code of Conduct, which is likely to be based on the nine key principles outlined in the Model Code of Conduct for Board members. It is a Board member's personal responsibility to be familiar, and to comply, with the provisions of their Board's Code of Conduct.
Executive members are covered by the Civil Service Code (the UK Code for Non-Ministerial Offices and the Scottish Code for Executive Agencies).
Board members must treat their colleagues, the public body's employees and members of the public with courtesy and respect at all times. This includes in person, in writing, at meetings and when online. Bullying and harassment will not be tolerated.
Board members must respect the principle of collective decision-making and corporate responsibility.
Board members must register certain interests. Doing so gives members of the public confidence that decisions are being taken in the best interests of the public and not those of a Board member or their family, friends or personal associates.
The requirement for Board members to declare certain interests is fundamental as a failure to do so removes the opportunity for openness and transparency in a Board member's role. It denies the public the opportunity to consider whether a member's interests may or may not influence their discussion and decision-making.
You must ensure that the reputation of your public body is not damaged by the receipt (or provision) of inappropriate gifts and hospitality.
The Commissioner for Ethical Standards in Public Life in Scotland (the Commissioner) considers complaints about members of devolved public bodies who are alleged to have contravened the Code of Conduct. On finding a contravention of the Code, the Commissioner reports to the Standards Commission for adjudication. Where a hearing is held by the Standards Commission and a contravention of the Code is established, the Standards Commission determines the level of sanction to be applied.
Part 4 of The Ethical Standards in Public Life etc. (Scotland) Act 2000 makes provision for Codes of Conduct for bodies not listed in Schedule 3 – such bodies and Board members are not subject to investigation by the Ethical Standards Commissioner, or sanction by the Standards Commission.

Code of Conduct for Members of Management Advisory Boards

It is good practice for Management Advisory Boards to have Codes of Conduct. Management Advisory Board members are not bound by the Ethical Standards in Public Life (Scotland) Act 2000. Upon appointment to the Board, your body's Code should have been provided to you (if one is in place).

You are discouraged from advocating or encouraging any action contrary to the Code of Conduct. It is your personal responsibility to make sure that your actions comply with the provisions of the Code at all times as the Code contains the standards against which your conduct will be measured. You should review regularly, and at least annually, your personal circumstances against the requirements of the Code.

If you are uncertain about any aspect of the Code, you should seek advice from the Chief Executive.

Irrespective of the extent to which a public body is covered by the Ethical Standards Act, Board members are required to adhere to the principles that underpin the ethical standards framework and have regard to the provisions set out in the Model Code of Conduct in carrying out their public duties.

Key Principles

The Code of Conduct which applies to your public body is likely to be based on the nine key principles of public life included in the Model Code of Conduct. Board members should apply these principles in their dealings with fellow members of their public body, its employees and other stakeholders. Similarly Board members should also observe these principles in their dealings with the public when performing duties as a member of a public body:

Duty

You have a duty to uphold the law and act in accordance with the law and the public trust placed in you. You have a duty to act in the interests of the public body of which you are a member and in accordance with the core functions and duties of that body.

Selflessness

You have a duty to take decisions solely in terms of public interest. You must not act in order to gain financial or other material benefit for yourself, family or friends.

Integrity

You must not place yourself under any financial, or other, obligation to any individual or organisation that might reasonably be thought to influence you in the performance of your duties.

Objectivity

You must make decisions solely on merit and in a way that is consistent with the functions of the public body when carrying out public business including making appointments, awarding contracts or recommending individuals for rewards and benefits.

Key Principles

Accountability and Openness

You are accountable for your decisions and actions to the public. You have a duty to consider issues on their merits, taking account of the views of others and must ensure that the public body uses its resources prudently and in accordance with the law.

Openness

You have a duty to be as open as possible about your decisions and actions, giving reasons for your decisions and restricting information only when the wider public interest clearly demands.

Honesty

You have a duty to act honestly. You must declare any private interests relating to your public duties and take steps to resolve any conflicts arising in a way that protects the public interest.

Leadership

You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public's trust and confidence in the integrity of the public body and its members in conducting public business.

Respect

You must respect fellow members of your public body and employees of the body and the role they play, treating them with courtesy at all times. Similarly you must respect members of the public when performing duties as a member of your public body.

The following issues covered under the ethical standards framework may be helpful for Management Advisory Board Codes or Standing Orders.

Respect, Bullying and Harassment

The Code makes it clear that the requirement for members to treat their colleagues, the public body's employees and members of the public with courtesy and respect applies at all times. This includes in person, in writing, at meetings and when online. Bullying and harassment will not be tolerated.

The Model Code notes that disrespect, bullying and harassment can be:

a one-off incident;
part of a cumulative course of conduct;
a pattern of behaviour, and;
physical, verbal and non-verbal conduct.

Use of Social Media

The conduct expected of members online is no different to the conduct that should be employed in other methods of communication, such as face-to-face meetings and letters. When using social media the distinction between work and private life can become blurred, and hastily made comments can be misconstrued. It is important for Board members to take special care when expressing views on social media in order not to compromise their position as a member of the public body or to say anything that potentially could have a negative impact on the public body's reputation.

Before commenting or posting (including "liking" or re-posting another post), Board members should consider very carefully whether they:

understand the immediate and permanent nature of any comment or post they are about to make;
would make that comment or post in-person, face to face;
are disclosing any confidential information, and;
are complying with the principle of collective responsibility.

Board members should be careful about whether they are acting, or could be perceived to be acting, as a member of the public body when using social media. Social media offers many benefits in communicating with stakeholders and interested parties. Board members should always remember, however, that posts on social media can reach large (sometimes unintended) audiences instantly and it can be very difficult to retract content once it is published. Board members should familiarise themselves with their public body's policies on IT and the use of social media in order to protect the public body's reputation and to help ensure it complies with its legal obligations. Board members are expected to approach any use of social media platforms responsibly and with care.

Gifts and Hospitality

As a board member, you should ensure that the reputation of your public body is not damaged through the receipt (or provision) of inappropriate gifts and hospitality. The provisions in the Model Code on gifts and hospitality are designed to avoid any perception that members are using their role to obtain access to benefits that members of the public would otherwise be expected to pay for, and also to prevent them from being influenced (inadvertently or otherwise) into making decisions for reasons other than the public interest. "Gifts" or "hospitality" can come in many forms. Beyond the everyday things like bottles of wine or offers of lunch, they can include benefits such as tickets to sporting or other events; provision of services at a price below that generally charged to the public; incurring personal debts or obligations on your behalf, relief from indebtedness, loan concessions, or other financial inducements.

The Code makes it clear that the default position is that board members should refuse all offers of gifts and hospitality, except in very limited circumstances.

In considering whether an offer of gift or hospitality may fall within one of these exceptions, board members are required to consider an objective test. This is whether a member of the public, with knowledge of the relevant facts, would reasonably consider that acceptance of the gift or hospitality might lead the board member to being influenced in their discussion or decision-making.

Bribery

Board members must be familiar with the provisions of the Bribery Act 2010 which came into force on 1 July 2011 and their organisation's policy in this area. The Act makes it a criminal offence for a person to take part in active bribery (making a bribe) or passive bribery (receiving a bribe). All public bodies operate a zero tolerance approach to bribery, with any allegations investigated in accordance with the relevant procedures and reported to the appropriate authorities.

Relations with Employees

Board members must not undermine any individual employee or identifiable group of employees, or raise concerns about their performance, conduct or capability in public. This does not mean that board members are prevented from scrutinising the performance of a team or service; it just means that they are required to refrain from making any public criticism, which is personalised in nature, about an individual employee or identifiable group of employees. If a board member wishes to raise concerns in public about the performance, conduct or capability of the organisation (or parts of it), they must do so objectively and respectfully and should focus on the issues, rather than on any employees who may have been directly involved in the matter.

Board members should not become involved in operational management of their public body as that is the responsibility of the Chief Executive and Executive Team. In general, if a duty is delegated to an employee, then it is likely to be operational in nature. This is unless:

it is written into a board member's role (for example, it is stated in their job description, letter or contract of appointment, or is included by virtue of a statutory provision);
they have been invited to do so by the public body's Chair or Chief Executive, and/or;
they have been directed to do so by their sponsor body, Minister or Cabinet Secretary.

The key is whether the involvement is appropriate. Becoming inappropriately involved in operational management and/or operational decision-making can be a breach of the Code. It can also damage a board member's relationship with the public body's employees and can have a detrimental effect on how they perform their duties. If a board member becomes too focused on operational matters, they risk losing sight of the "bigger picture" and may have less time to focus your strategic and scrutiny role.

Collective Responsibility

Board members must respect the principle of collective decision-making and corporate responsibility. This means that once the Board has made a decision, board members are to support that decision, even if they, as an individual, did not agree with or vote for it. If a board member fundamentally disagrees with the decision taken by the Board, then they have the option of recording their concerns in the minutes of the board meeting. If the board member remains discontented, they should ask the Chair for a meeting to discuss their concerns. Ultimately, however, if a board member's concerns are not resolved and they cannot accept and support the collective decision, they will need to consider whether it is appropriate to remain on the Board.

Confidentiality

On occasions, board members will be required to treat discussions, documents and other information relating to the work of the body in a confidential manner. It is imperative that board members respect this duty of confidentiality at all times. In particular, as a board member you should never use information to which you have privileged access for personal or financial gain or in a way that brings the public body into disrepute.

You will not disclose confidential information or information which should reasonably be regarded as being of a confidential or private nature, without the express consent of a person or body authorised to give consent (or unless required to do so by law) – where you cannot obtain that consent, you should assume it is not given.

You should only use confidential information to undertake your duties as a board member. You must not use it in any way for personal advantage or to discredit the public body (even if you are of the view that the information should be publicly available). Sometimes it is a matter of timing, in that that confidential information may eventually be released into the public domain. However, you must respect the requirement for confidentiality even if you do not agree with it or consider that the information should be released at an earlier stage.

Registration of Interests

It is good practice for public bodies to set up, maintain and make available for public inspection a register of board member interests.

The requirement to register certain interests is intended to give members of the public confidence that decisions are being taken in the best interests of the public and not those of a board member or their family, friends or personal associates.

The Register is intended to be a public record of those interests that might, by their nature, be likely to cause conflicts with a board member's role as a member of their public body.

The Model Code outlines the interests that board members, must register. These are as follows.

Category One: Remuneration

Category Two: Other Roles

Category Three: Contracts

Category Four: Election Expenses

Category Five: Houses, Land and Buildings

Category Six: Interest in Shares and Securities

Category Seven: Gifts and Hospitality

Category Eight: Non-Financial Interests

Category Nine: Close Family Members

The public body's Code of Conduct will contain definitions of what board members are required to register under each of these categories, with further information being provided in the Standards Commission's Guidance on the Model Code. If a board member is in any doubt as to what they should or should not be registering, they can seek advice from the public body's Standards Officer, Chair, Chief Executive and/or the Standards Commission.

The Register should also be available for inspection by the public (electronic and paper version). Public bodies should prepare a page for this purpose on their website and ensure that it is operational and updated regularly. Board members are required to keep their entries in the Register of Interests up to date and must notify the Standards Officer of any new interest or change to an existing interest within one month of the change.

Declaration of Interests

In deciding whether to declare an interest, the key test is whether a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision-making in your role as a member of a public body.

If you have a financial, or non-financial, interest you must declare your interest at Board meetings.

Non-Declaration of Interest

Where a material conflict of interest exists and a board member does not declare their interest and withdraw, the Chief Executive or Chair should take appropriate action to ensure that the Board (and the board member concerned) is not compromised.

Frequent Declarations of Interest

If as a board member you are frequently declaring interests at meetings, you should consider whether it is appropriate for you to continue in your role. In such circumstances, you may wish to discuss your continued appointment as a board member with the Chief Executive.

Conflicts of Interest

Public confidence in your public body and its board members depends on it being clearly understood that decisions are taken in the public interest and not for any other reason. Public bodies should have in place clear rules and procedures for managing conflicts of interests. Together with the rules on registration of interests, this ensures transparency of your interests which might influence, or be thought to influence, your actions. You should note that the appearance of a conflict of interest in terms of public perception can be every bit as damaging as an actual conflict – both should be avoided.

The requirement for board members to declare certain interests is a fundamental requirement of the Code. A failure to do so removes the opportunity for openness and transparency in a board member's role and denies the public the opportunity to consider whether a member's interests may or may not influence their discussion and decision-making.

The Code outlines a three-stage test aimed at helping board members identify whether they have a potential conflict of interest and the steps they must take if so. The three stages are

1) Connection

2) Interest

3) Participation

Stage 1: Connection

A connection is any link between the matter being considered and the board member or a person or body they are associated with. This could be a family relationship or a social or professional contact. It would also include anything that has been registered as an interest.

The Code outlines certain matters that are not considered a connection for the purpose of the Code. This includes:

simply having previous knowledge or experience of a matter, and;

having a view in advance on a matter to be considered at a meeting in (and discussing such a view with colleagues, employees or service users). That is provided the matter to be discussed is not quasi-judicial or regulatory in nature.

Stage 2: Interest

If a board member has a connection to a matter being discussed, then they are then required to apply the Objective Test. This is: whether a member of the public, with knowledge of the relevant facts, would reasonably regard the board member's connection to the matter as being sufficiently significant as to be likely to influence their discussion or decision-making.

If the objective test is met, then the connection is an interest that requires to be declared. Board members should bear in mind, when applying the objective test, that the test is not what they know about their own motivations and whether the connection would unduly influence them; it is what others would reasonably think, if they were in possession of the relevant facts.

The requirement to disclose or declare interests applies both in formal and informal dealings with public body employees and other board members, not just in formal board or committee meetings. Board members should not assume that employees or their colleagues will know or remember what their interests are.

Stage 3: Participation

If a board member has a declarable interest they cannot participate in the discussion or any voting on the matter. The board member must leave the room or the online meeting. This is to ensure they do not influence other members and/or to avoid any perception they could be doing so.

In some circumstances, board members may consider it is appropriate, for transparency reasons, to state publicly that while they have a connection to a matter, having applied the objective test, they do not consider it amounts to an interest (and to explain why).

Lobbying and Access

The Code of Conduct sets out clear guidance in respect of dealing with lobbyists and distinguishes lobbying, from helping service users and community engagement. It explains that lobbying is where a member is approached by an individual or organisation who is seeking to influence them, in their capacity as a member of the public body, for financial gain or advantage.

The Code requires board members to have regard to the objective test in deciding whether, and if so, how to respond to such lobbying. This is whether a member of the public, with knowledge of the relevant facts, would reasonably regard their conduct in responding to the lobbying as being likely to influence them or their public body's decisions. If a board member has any concerns about any approach made to them, they should discuss the matter with the public body's Standards Officer and/or Chair.

Whistleblowing

Although not directly covered by the Ethical Standards Framework, board members have a responsibility to ensure that staff have confidence in the fairness and impartiality of procedures for registering and dealing with their concerns and interests. The Public Interest Disclosure Act 1998 gives legal protection to employees who raise certain matters or concerns, known as "qualifying disclosures", without fear of reprisal. Confidentiality requirements do not apply to protected whistleblowing disclosures made to the prescribed persons and bodies as identified in statute.

To be covered by whistleblowing law, a worker who makes a disclosure must reasonably believe two things. The first is that the disclosure is in the public interest. This means in particular that personal grievances and complaints are not usually covered by whistleblowing law. The second thing that a worker must reasonably believe is that the disclosure tends to show past, present or likely future wrongdoing falling into one or more of the following categories:

criminal offences (this may include, for example, types of financial impropriety such as fraud);
failure to comply with an obligation set out in law;
miscarriages of justice;
endangering of someone's health and safety;
damage to the environment, and;
covering up wrongdoing in the above categories.

All public bodies should have their own whistleblowing policy and procedures in place which should be consistent with the Public Interest Disclosure Act 1998, and with their own nominated officer and process for investigation. It is expected that any policy will cover both board members and the staff of the public body. As a board member, you should ensure that your public body has a whistleblowing policy and appropriate procedures in place. This will allow staff to raise concerns on a range of issues such as fraud, health and safety etc without having to go through the normal management structure.

Any whistleblowing policies or procedures should be clear, simple and easily understood. There is no one-size-fits-all whistleblowing policy as policies will vary depending on the size and nature of the organisation. This list is not exhaustive but suggests the principles which we expect would be included in a whistleblowing procedure:

communicating the policy and procedure;
procedures to be followed;
what is a qualifying disclosure;
making a disclosure;
disclosures to third parties;
how the concern will be handled, and;
confidentiality and anonymity protection.

Audit Scotland has published guidance on employers' and employees' responsibilities in relation to whistleblowing.

As a new board member you should be informed of the public body`s whistleblowing policy as part of your induction, the same applies for staff. To develop a supportive and open culture, public bodies will need to consider providing training at all levels on the effective implementation of their whistleblowing arrangements Actively publicising a policy shows that the public body is genuinely open to hearing concerns from its staff and board members. Conduct and written policies will help to create an open culture, which will increase the likelihood of individuals speaking up about any wrongdoing they come across.

Complaints about the Public Body

The Scottish Public Services Ombudsman (SPSO) is the final stage for complaints about most devolved public services in Scotland including: councils, the National Health Service, housing associations, colleges, universities, prisons, most water and sewerage providers, and the Scottish Government, its agencies and departments and most Scottish public authorities.

The SPSO also provides the independent review service for the Scottish Welfare Fund with the power to overturn and substitute decisions made by councils on Community Care and Crisis Grant applications; and, has the role of the Independent National Whistleblowing Officer (INWO) for the NHS in Scotland, which is the final stage of the process for those delivering NHS services in Scotland to raise concerns.

As a board member, you have a responsibility to ensure that complaints are considered as part of your organisation's overall governance and assurance arrangements.

You should be aware of the importance of having an effective complaints policy in place. In keeping with the nine key principles in the Model Code of Conduct for Members of devolved Public Bodies, complaints should be valued as a source of feedback (and learning) about an organisation's performance and as an aid in driving service improvement.

Understanding complaints and learning from them is a key pillar of effective governance in a public body. You can help to promote a culture which values complaints and has a proactive approach to the effective resolution of and learning from complaints.

The Board has a collective responsibility, and board members, the Chair and the Chief Executive are also individually responsible for ensuring the public body has an effective, efficient, customer-focused approach to complaints handling in place.

You should also be aware of the issues and concerns people are raising in their complaints. Your scrutiny of these issues will help to ensure that service users receive a high-quality service and that best value is achieved.

The SPSO has specific powers and responsibilities to set complaints handling standards, publish complaints handling procedures, and monitor and support best practice in complaints handling. The SPSO Statement of Complaints Handling Principles as approved by the Scottish Parliament in 2011, affirms that an effective complaints handling procedure is:

user-focused;
accessible;
simple and timely;
thorough, proportionate and consistent;
objective, impartial and fair;
and should
seek early resolution, and;
deliver improvement.

The SPSO has a duty to publish Model Complaints Handling Procedures (MCHPs) which public bodies have a statutory requirement to adopt.

The MCHPs include a requirement for public bodies to report quarterly to senior management on:

performance statistics, in line with the key complaints performance indicators published by SPSO, and;
analysis of the trends and outcomes of complaints (this should include highlighting where there are areas where few or no complaints are received, which may indicate either good practice or that there are barriers to complaining in that area).

The MCHPs also include a requirement for public bodies to publish:

quarterly, information on complaints outcomes and actions taken to improve services. This demonstrates the improvements resulting from complaints and shows that complaints can help to improve services. It also helps ensure transparency in complaints handling and helps to show our stakeholders that their complaints are valued, and;
annually, a complaints performance report on the body's website in line with SPSO requirements, and provide this to the SPSO on request.

These published reports must be easily accessible to members of the public and available in alternative formats as requested.

The SPSO has produced a short briefing note for board members which will help you to consider complaints as part of your organisation's governance arrangements.

Complaints Handling

Ensure the public body and executive team are learning from service failures and customer insight provided by complaints, with systems in place to record, analyse and report on complaints outcomes, trends and actions taken.
Ensure that processes are in place for the public body and executive team to identify and respond immediately to critical or systemic service failures identified from complaints handling.
Take an active role in monitoring and reviewing learning from complaints and reviewing individual complaints to obtain an understanding of how any failures occurred and have been addressed.
Provide the necessary challenge and hold the senior officer(s) to account for the public body's performance in complaints handling, with Board/board members themselves regularly monitoring and reviewing the complaints handling performance of the public body.
Ensure that service improvements are agreed, actioned and reviewed, possibly on a quarterly basis.