Councillors' Code of Conduct: analysis of consultation responses

Executive summary

Introduction

1. Between 12 December 2016 and 20 March 2017, the Scottish Government undertook a public consultation on making amendments to sections 5 and 7 of the Councillors' Code of Conduct. This report presents an analysis of the responses received.

2. Section 1 of the Ethical Standards in Public Life etc (Scotland) Act 2000 requires the Scottish Ministers to issue a code of conduct for councillors. All local authority councillors in Scotland are obliged to comply with the Code and with any guidance on the Code issued by the Standards Commission for Scotland. The Code prevents a councillor from taking part in Council meetings and sit on the board of an external body where there might be a conflict of interest. Exclusions to this can apply where the councillor has been appointed to the board or approved by their Council, but this exclusion does not currently apply in quasi-judicial or regulatory matters ^[1] . The proposal is to make amendments to extend the exclusions to also cover quasi-judicial or regulatory matters, limited in application to Regional Transport Partnerships or to apply to all public bodies.

3. The purpose of the consultation was to seek views on whether such changes should be made, and if so what form changes should take. A total of 38 responses were received from a mix of local authorities; Regional Transport Partnerships; other public bodies and individuals. It is important to note that, given the self-selected nature of the respondents, the views presented here should not be seen as representative of the views of the wider population.

Level of agreement with making an amendment to the Code in respect of RTPs

4. Thirty seven of the 38 respondents answered question 1, with local authority respondents ( LAs) and Regional Transport Partnerships ( RTPs) tending to be more in favour of an amendment being made. Individuals were more mixed in their response.

5. Although not specifically asked about, a couple of respondents took the opportunity elsewhere to comment on why there should be an amendment. One argument was that decision making was based on different information at an RTP level compared to Council meetings. The other was that the current situation ran the risk of excluding people from RTP board meetings such that the boards did not have the required number of members to proceed (inquorate).

Suggestions on how the amendment should be worded from those who agreed

6. Of those who agreed to the amendment, there were three overall types of approach:

• Those that agreed with introducing the extended specific inclusion with no further caveats beyond ensuring that declarations of conflicts of interests were retained.
• Those that agreed, but with the caveat that councillors could only be involved in Council discussions and decision making if they had not been present at RTP meetings on the subject or been involved in preparing an RTP representation.
• Finally, there were those that stipulated that councillor participation in Council discussion and decision making depended on the level of RTP interest. In other words they could not take part if the RTP had actually made a direct application, comment or objection, but they could if the RTP had a general but not direct 'material' interest.

7. The five local authorities who provided comments all fell into the second camp, supporting use of similar wording to that of the Cairngorm Park National Authority ( CPNA) which has the extended exclusion but stipulates that councillors declare their interests and absent themselves where the councillor has actually participated in the RTP's decision making or attended any meeting at which the matter has been discussed.

8. One slight variation was to suggest that a councillor could take part in discussions, thus fulfilling their representative role but not have any involvement in decision making so ensuring decisions are impartial.

9. The Standards Commission identified flaws with adopting the CPNA approach and argued for granting a specific exclusion in respect of RTPs to apply to all quasi-judicial and regulatory matters but with the same caveats as currently apply to other bodies covered by the specific exclusion at paragraph 5.18(2)(i). However, they also recognised challenges with this suggestion too and that the bottom line was that a councillor would still have to withdraw where direct 'material' interests were in conflict.

Reasons for disagreeing with an amendment to the Code in respect of RTPs

10. The main arguments from individuals centred on concerns about councillors being bribed for votes with an impact on impartial decision making. Also, there was concern that the impact on perceptions of trust in councillors would be at risk of being further undermined.

11. Opposition from some of the local authorities and one of the public bodies also reinforced the concern around undermining public trust in councillor impartiality. They also indicated that they felt that any amendments were unnecessary as they had not experienced problems in applying the code and believed that each situation should be judged on its own merits.

Level of support for whether an amendment should apply to all public bodies, not just RTPs

12. A total of 24 respondents provided a response to question 4. Fifteen were in favour of extending the amendment to all public bodies and 9 were against. All 8 individuals in favour of an amendment in relation to RTPs also favoured this being extended to all public bodies. Patterns for the other respondent types were more mixed.

Reasons for disagreeing with an amendment to the Code in respect of all public bodies

13. The main objection to extending the amendment was on the basis of concern about reducing public trust in Council decision making and making it open to fraud. It was also thought to go beyond the measures necessary to fix the current perceived issue and it was reiterated that such issues should be decided on a case by case basis at a local level rather than a change to the Code, and that it was possible to operate effectively with the Code as currently worded.

Additional comments or suggestions about the provisions of the Code on declarations of interest as regards councillors who are also members of other bodies

14. Under the final open question of the consultation, respondents expressed a range of opinions, from those who felt there should be some degree of trust in councillors and that the Code and declarations of interest should not of themselves hinder carrying out of Council business and bar membership of other bodies, to those that were very clear that conflicts of interest should prevent involvement in membership and/or decision making and records of conflicts of interest should be wide ranging to include historical interests, interests of family members, membership of all organisations (public, private etc).

15. The opportunity was taken by a number of respondents to suggest the Scottish Government undertake a wider review of the Code. This included calls for making the code simpler and more 'user-friendly'. It was also emphasised that any amendments to the Code must be done with the aim of maintaining public confidence in impartial decision making as well as be supportive to Councils in conducting their business as efficiently and openly as possible.