Councillors' code of conduct: consultation 2020

Annex C

Breaches of the Code

The information in this Annex (which is Annex A in the existing Code) has been extended to include information about:
- the role of the Ethical Standards Commissioner (ESC) in receiving and investigating complaints;
- the different sanctions available to the Standards Commission, following a finding of a breach of the Code, and what these mean; and
- the power available to the Standards Commission to impose an interim suspension while any an investigation by the ESC into a complaint about a councillor is ongoing.

Introduction

1. The Ethical Standards in Public Life etc. (Scotland) Act 2000 (the 2000 Act) provided for a framework to encourage and, where necessary enforce, high ethical standards in public life. The 2000 Act and the subsequent Scottish Parliamentary Commissions and Commissioners etc. Act 2010 established the Standards Commission for Scotland (Standards Commission) and the post of Commissioner for Ethical Standards in Public Life in Scotland (ESC). 

2. The Standards Commission and ESC are separate and independent, each with distinct functions.  Complaints of breaches of the Councillors' Code of Conduct are investigated by the ESC and adjudicated upon by the Standards Commission.

Investigation of Complaints

3. The ESC is responsible for investigating complaints about Councillors. It is not, however, mandatory to report a complaint about a potential breach of the Code to the ESC. It may be more appropriate in some circumstances for attempts to be made to resolve the matter informally at a local level.

4. Following investigation, the ESC will report the matter to the Standards Commission if it is considered that a breach of the Councillors' Code of Conduct has occurred.

Hearings

5. On receipt of a report from the ESC, the Standards Commission can choose to:

• Do nothing;
• Direct the ESC to carry out further investigations; or
• Hold a Hearing.

6. Hearings are held (usually in public) to determine whether the Councillor concerned has breached the Councillors' Code of Conduct.  The Hearing Panel comprises of three members of the Standards Commission.  The ESC will present evidence and/or make submissions at the Hearing about why it is considered that the councillor has contravened the Code.  The councillor is entitled to attend or be represented at the Hearing and can also present evidence and make submissions.  Both parties can call witnesses.  Once it has heard all the evidence and submissions, the Hearing Panel will make a determination about whether or not it is satisfied, on the balance of probabilities, that there has been a contravention of the Code by the councillor.  If the Hearing Panel decides that a councillor has breached the Councillors' Code of Conduct, it is obliged to impose a sanction. 

Sanctions

7. The sanctions that can be imposed following a finding of a breach of the Councillors' Code of Conduct are as follows:

• Censure: A censure is a formal record of the Standards Commission's severe and public disapproval of the councillor concerned.
• Suspension: This can be a full or partial suspension (for up to one year). A full suspension means that the councillor is suspended from attending all meetings of the Council.  Partial suspension means that the councillor is suspended from attending some of the meetings of the Council.
• Disqualification:  Disqualification means that the councillor is disqualified for the period determined (of up to 5 years) from being a councillor (which has the effect of removing them from office. Where a councillor is also a member of a devolved public body (as defined in the Ethical Standards in Public Life etc. (Scotland) Act 2000), other than as a representative or nominee of the Council, the Commission may also remove or disqualify that person in respect of that membership. Full details of the sanctions are set out in section 19 of the 2000 Act.

Interim Suspensions

8. Section 21 of the 2000 Act provides the Standards Commission with the power to impose an interim suspension on a councillor on receipt of an interim report from the ESC about an ongoing investigation. In making a decision about whether or not to impose an interim suspension, a Panel comprising of three Members of the Standards Commission will review the interim report and any representations received from the councillor and will consider whether it is satisfied:  

• That the further conduct of the ESC's investigation is likely to be prejudiced if such an action is not taken (for example if there are concerns that the councillor or member may try to interfere with evidence or witnesses); or
• That it is otherwise in the public interest to take such a measure.  A policy outlining how the Standards Commission makes any decision under Section 21 and the procedures it will follow in doing so, should any such a report be received from the ESC can be found here.

9. The decision to impose an interim suspension is not, and should not be seen as, a finding on the merits of any complaint or the validity of any allegations against a councillor, nor should it be viewed as a disciplinary measure.