The Councillors' Code of Conduct - consultation on possible amendments of provisions on conflicts of interest

Background

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. The current version of the Code was issued in 2010 and can be found at http://www.standardscommissionscotland.org.uk/uploads/files/14424808530109379.pdf. The current version of the Code was issued following a limited review of the Code that the Scottish Government carried out in 2009. The Scottish Government does not currently have any plans to carry out a further review of the Code.

The 2000 Act states that Ministers shall issue a councillors’ code only after it has been laid before and approved by a resolution of the Scottish Parliament. The same applies to any revision or re-issue of the Code.

The aim of the Code is to set out clearly and openly the standards that councillors must comply with when carrying out their council duties. 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 current Guidance was issued in 2015 and can be found at http://www.standardscommissionscotland.org.uk/uploads/files/1461858362160428CCoCGuidanceSTANDALONEFINAL.docx.

Purpose of this consultation

The Scottish Government has been asked to consider making changes to the Code to address a specific issue relating to Sections 5 and 7 of the Code on declarations of interest in connection with quasi-judicial or regulatory matters. The purpose of this consultation is to seek views on whether such changes should be made, and if so what form those changes should take.

The issue

Section 5 of the Councillors’ Code of Conduct requires a councillor to declare an interest in a matter and not take part in discussion or decision-making by their council of that matter where a member of the public knowing of the interest would reasonably regard the interest as so significant that it is likely to prejudice the councillor’s discussion or decision-making (the “objective test”). This applies to both financial and non-financial interests. The Code says that non-financial interests that ought to be declared include membership or holding office in a public body.

Paragraph 5.7 of the Code provides that notwithstanding its general provisions relating to declarations of interest, there is no need for a councillor to withdraw from the council’s discussion of or voting on a matter where a general or specific exclusion applies. The specific exclusions are described in paragraph 5.18 of the Code, and include interests that a councillor may have as a member or director of an outside body where the councillor has been nominated or appointed, or whose appointment has been approved, by the councillor’s local authority. However, they do 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 or has a material interest 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.”

An example of an outside body to which councillors are appointed is Nestrans, the statutory Transport Partnership for the Aberdeen City and Aberdeenshire areas. Nestrans is one of seven regional Transport Partnerships (RTPs) set up across Scotland under the Transport (Scotland) Act 2005 to provide a co-ordinated approach to transport planning and delivery between different local authority areas. The 2005 Act provides that it is the duty of each RTP to draw up a strategy for transport within its region. In addition Ministers can confer other transport functions on an RTP, such as installing bus lanes and providing subsidised bus services. Nestrans itself describes its purpose as being “to develop and deliver a long-term regional transport strategy and take forward strategic transport improvements that support and improve the economy, environment and quality of life across Aberdeen City and Shire”. Under the 2005 Act, the Board of Nestrans is made up of councillors from the councils in its area as well as non-councillor members appointed by the Scottish Ministers.

As part of its role, Nestrans comments on major planning matters that may affect transport in its area. The consideration of such matters by the relevant council is a quasi-judicial matter in terms of the Councillors’ Code of Conduct.

The Standards Commission was asked by Aberdeen City Council on behalf of Nestrans to grant a dispensation to allow members of Nestrans who are councillors to take part in the Council’s consideration of matters of a quasi-judicial or judicial nature in which Nestrans has an interest. The example given was of Nestrans having commented on a major planning application that had transport implications before the application was considered by the Council. However, the Commission decided that it could not grant such a dispensation since to do so would be contrary to the terms of the Code. In reaching that decision the Commission felt that the declarable interest would be a councillor’s membership of Nestrans, and so that the conflict of interest - and thus the need for the councillor not to take part in consideration of the issue by the Council - could not be avoided simply by the councillor not taking part in discussion of the matter by Nestrans.

The result is that councillors who are also nominated or appointed by their councils to be members of Nestrans cannot take part in their council’s discussion of or taking decisions on quasi-judicial or regulatory matters in which that body has an interest. Nestrans and its member councils have argued that:

• this may adversely affect the ability of partnership bodies such as Nestrans to influence council decisions on important issues – for instance, most major planning applications will have potential transport implications; and
• this might also make it difficult to find councillors who are willing to serve on such bodies, since faced with having to choose between being members of the outside body and keeping the ability to take part in their council’s consideration of issues in which the body has an interest councillors are likely to prioritise the latter and so decline to become members of outside bodies.

It has been suggested that these factors could prejudice the ability of such bodies properly to perform their functions. They might also make it difficult or even impossible to comply with relevant statutory requirements for the membership of such bodies.

Since the Standards Commission has decided that it cannot legally grant dispensations in such cases, it appears that the issue could only be addressed by changing the relevant terms of the Code.

The proposal

The proposal is to amend the Councillors’ Code of Conduct so that councillors who are appointed or nominated by their councils to be members of an outside body would not be prevented from taking part in their council’s discussion of a matter of a quasi-judicial or regulatory nature in which that other body had an interest solely because of their membership of that body.

It is suggested that this could be done by extending the current specific exclusion in the Code for councillor members of a public body, so that it would include quasi-judicial or regulatory matters in which that body had an interest. This would enable councillor members of a public body to take part in their council’s consideration of and decision-taking on such matters, although they would still need to declare their interest as a member of that public body. There would be a need to make consequential changes to para. 7.5 of the Code, which reiterates the principle that the specific exclusion does not apply to quasi-judicial or regulatory matters. However, the Scottish Government would be open to considering other options.

Although the issue has been raised specifically in relation to Nestrans, and by implication to other Regional Transport Partnerships, it would seem capable of arising in connection with other public bodies that could have an interest in quasi-judicial or regulatory matters for which councils are responsible. We would therefore welcome views on whether any change to the Councillors’ Code of Conduct should cover all public bodies to which councillors may be appointed or nominated by their councils, not just Regional Transport Partnerships.

For consideration is whether such an extension of the current specific exclusion for members of other public bodies would apply in all cases, or only where the councillor had not participated in the body’s decision-making on the matter or attended any meeting of the body at which the matter was discussed. The latter formulation would be similar to the other specific exclusion that is currently in the Councillors’ Code of Conduct, which is for councillor members of the Cairngorms National Park Authority.