Proxy voting by councillors: consultation

Consultation on proposal to allow proxy voting by councillors

Introduction

1. Concerns have been raised with the Scottish Government around the absence of proxy voting provision for councillors. The absence of explicit provisions allowing for proxy voting within local authorities could impact councillors on parental leave, or those who are unable to attend for other reasons, for example, because of an accident or serious illness. Proxy voting in these circumstances would allow a councillor to nominate another specified councillor to vote on their behalf during Council decisions.

2. Section 43 and Schedule 7 of the Local Government (Scotland) Act 1973 required councillors to attend meetings and vote in person. Section 43 of the Local Government in Scotland Act 2003 then made provision for the remote participation in and calling of local authority meetings. This section allows for meetings (including committees, joint committees and sub-committees) to be conducted in any way in which each member is enabled to participate, even if not physically present. It also amended Schedule 7 of the 1973 Act to change the relevant references from “presence” to “participation”. This allows the provisions of schedule 7 to take effect even if members are not physically present.

3. However, there are no provisions which explicitly allow for proxy voting. There may be an argument that section 43 of the 2003 Act, by allowing local authority meetings to be conducted as long as members are participating, even if not present, already allows the use of proxy voting. However, there may be room for doubt as to the correct position and local authorities could face challenge.

4. This consultation therefore seeks views on introducing a statutory provision to explicitly allow for proxy voting to be used within Scottish local authorities.

Current provisions

5. As noted above, there are currently no explicit provisions to legislate for proxy voting in local government. However, there may be options, short of proxy voting, that could aid decision making.

6. It is likely that local authorities could introduce informal pairing agreements along the lines of those previously used in the Scottish Parliament prior to its introduction of explicit proxy voting provisions. Pairing occurs where two individuals from opposing parties both agree not to vote on a decision. In local government, this would allow a councillor to be absent without affecting the result of the vote as the absences balance each other out.

7. The Scottish Government recognises that there could be difficulties around this given Councils are smaller, with more limited numbers of councillors to pair. There may also be instances where cross-party working is under local tension and it would not be possible to agree a pair. Such a pairing agreement might also prevent quorum requirements being met, particularly in smaller authorities.

8. Local authorities could also consider the appointment of named substitutes to committees, effectively allowing a form of proxy voting to be used. A similar scheme is operated by Scottish Parliament Committees. The substitutes would be agreed in advance by the Committee and the individuals would then be able to attend meetings in the absence of another member. It would be for each council to decide how a named substitute scheme would operate, for example whether each party must have a minimum number on the Committee to be eligible for a substitute. However, we recognise that where there are independent members or a smaller number of councillors from the same party opportunities for named substitutes may be limited. It would also not be possible to apply this to full Council meetings as all councillors are required at those meetings.

9. Given the limitations to these options the Scottish Government recognises that a statutory provision around proxy voting would be preferable.

Scottish Government proposal

10. The Scottish Government proposes to amend the Local Government (Scotland) Act 1973 to enable a councillor in Scotland to arrange for their vote to be cast by a proxy. A further amendment would also be made which would require local authorities to agree and publish a scheme setting out how proxy voting would work in practice, where they choose to introduce proxy voting.

11. The operational details, including the criteria of the scheme would not be set out in legislation. It would be for local authorities to determine how a scheme could work in practice and under which circumstances proxy voting could be available, should they wish to allow for it. Joint guidance would be produced by COSLA and the Scottish Government to assist the drafting of the operational scheme.

12. Subject to views from this consultation, we would propose the following criteria be included within the operational guidance as suggestions on where proxy voting could be appropriate:

i. maternity leave, paternity leave, parental leave, shared parental leave or adoption leave;

ii. complications arising from pregnancy, childbirth, miscarriage or baby loss;

iii. serious long-term illness or injury;

iv. bereavement;

v. attending to a person who is near the end of their life;

vi. any other reason subject to agreement of the full Council.

13. At this time, there is no suitable legislative opportunity to introduce this amendment should the consultation support the introduction of proxy voting. The Scottish Government will continue to support authorities to investigate other options to enable councillor participation until such time an amendment can be introduced.

Consultation questions

Question 1

Do you agree that an explicit provision should be introduced to allow a councillor to arrange for their vote to be cast by proxy (YES/NO)

Question 2

Do you agree with the optional criteria set out at paragraph 12 which could be applied by a local authority to allow for proxy voting? (YES/NO)

Question 3

Are there any further comments that you wish to make on the proposal to allow for proxy voting (free text, 300 word maximum)?

Responding to the consultation

Deadline

14. We are inviting responses to this consultation by 23.59 on 28 November 2024. The consultation is open for a period of 8 weeks given the policy is primarily of interest to local government and the limited focus of the questions.

How to respond

15. Please respond to this consultation using the Scottish Government’s consultation hub, Citizen Space (http://consult.gov.scot). Access and respond to this consultation online at: Proxy Voting Consultation.

16. You can save and return to your response while the consultation is still open. Please ensure that consultation responses are submitted before the consultation closes at 23.59 on 28 November 2024. You will receive a copy of your response via email.

17. If you respond using Citizen Space, you will be directed to the “About You” page before submitting your response. Please indicate how you wish your response to be handled, in particular whether you are content for your response to be published.

18. If you are unable to respond using Citizen Space, then please return your response and completed respondent information form to:

Email: proxyconsultation@gov.scot

Or by post to:

Proxy Consultation

Local Government and Analytical Services Division

Area 3G North

Victoria Quay

Edinburgh

EH6 6QQ

19. On the respondent information form, please indicate how you wish your response to be handled, in particular whether you are content for your response to published.

Handling your response

20. Where you have given permission for your response to be made public, it will be published on Citizen Space once we have checked that it abides by our Terms of Use.

21. All respondents should be aware that the Scottish Government is subject to the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation.

22. To find out how we handle your personal data, please see our privacy policy.

Comments and complaints

23. If you have any comments or complaints about how this consultation exercise has been conducted then please send them to:

Email: proxyconsultation@gov.scot

Or by post to:

Proxy Consultation

Local Government and Analytical Services Division

Area 3G North

Victoria Quay

Edinburgh

EH6 6QQ

Why we consult

24. Consultation is an essential part of the policy making process. It gives us an opportunity to consider your opinion and expertise. Your responses along with other available evidence help shape our policy.

25. You can find all Scottish Government consultations on Citizen Space.

Timings and next steps

26. After the consultation has closed there will be a short delay before any responses are published. This is because we must check that any responses to be published abide by our “Terms of Use”.

27. An analysis report will be published around 12 weeks after the consultation closing date. This report will summarise the findings based on all responses submitted. It will be published on the Scottish Government website and you may be notified about it if you choose to share your email address with us.

28. Subject to the views of the consultation, the Scottish Government would then to seek to introduce proxy voting provisions at the earliest possible legislative opportunity.