Ethical standards in public life - model code of conduct for board members: consultation analysis

Section 3: General conduct

Question 6: In Section 3, General Conduct, the respect provision has been extended to everyone that a member could come into contact or engage with when acting as such, e.g. employees of other public bodies as well as other board members and the general public. We have also included information relating to the use of social media and highlighted that bullying and harassment is totally unacceptable.

This section also covers Gifts and Hospitality. These provisions have been amended to make it clear that they should not be sought or accepted with the exception of minor gifts or hospitality that a member would normally be expected to be offered in their everyday role.

Do you have any comments on the proposed changes in Section 3?

Thirty-eight respondents (84%) provided feedback on the changes made to Section 3 in the revised Model Code, with the remaining seven respondents (16%) not providing any feedback. Several respondents commented positively on the additions made in relation to respect and courtesy and/or bullying and harassment. Among these respondents, there was a sense that the revised Model Code was an improvement on the current Model Code as it demonstrates a strong commitment to respect and courtesy while clearly setting out the expectations around the behaviour of board members. For example, as one respondent said:

“We support fully the expansion of this section and the greater emphasis given to the expectation that board members will conduct themselves respectfully to all parties and a zero tolerance approach to bullying, harassment and unlawful discrimination in all its forms. This is consistent with the aim of achieving greater diversity on public sector boards which was a principal theme of the Ethical Standards Commissioner's consultation on public appointments last autumn.”

Within the context of respect and courtesy, a few participants also explicitly welcomed the content in Paragraph 3.1 relating to the use of social media. For example, one participant felt that it was “obviously necessary” to update Section 3 to take greater cognisance of social media.

Others commented on the improved clarity of Section 3 – be it as a whole, in relation to particular sub-sections or in relation to specific paragraphs. Some examples of areas where the revised Model Code was felt to be particularly clear included:

• the definition of bullying and harassment, which respondents – and the Model Code – recognised could be physical, verbal and non-verbal in nature;
• the rules and obligations in relation to gifts and hospitality – an area which one respondent said was now “clearer and easier to understand”;
• the expected relationship between board members and employees, and the differentiation between strategic governance and operational management.

Many respondents provided views on aspects of Section 3 that could be added to or changed, or that they did not like. In particular, Paragraph 3.6 – which stresses that board members will not become involved in operational management unless it is written into their role, and that it should be left to the Chief Executive and Executive Team – was met with a degree of controversy. Some respondents objected to the current wording of Paragraph 3.6 and felt that it implies that the board has no responsibility for operational management at all, while others stressed that provision should be made for board members with non-executive roles to be able to take part in operational management at the request of the Chief Executive. Others felt that more guidance or clarity around operational management was required, indicating that:

• clarity is needed on what is meant by ‘operational management’;
• more detail is required around Paragraph 3.6 and it should be supported by some form of relevant guidance;
• the Model Code could be strengthened by giving an example of when it would be appropriate for a non-executive Director to become involved in operational management;
• the Model Code should make reference to the information on operational management contained in the On Board guidance.

Again, a few respondents also felt that more clarity should be provided about when board members can be perceived to be acting as a board member or as representing their public body and, therefore, on when they are required to conduct themselves in line with the provisions of the Model Code. For example, as one respondent said:

“The Code must be much more explicit in supporting judgement on for example when social media actions may be perceived as related to my role on a public body. The Code as drafted does not appear to have evolved sufficiently to adapt to supporting good governance in a digital world.”

A few also voiced concerns about the contents of Paragraph 3.10, which requires board members to respect the principle of collective decision-making and corporate responsibility. For example, one respondent felt that collective decision-making could limit the ambition of Integration Joint Boards in particular, as it ran the risk of “potentially difficult but required changes” not being approved if a collective agreement was required. Another called for Paragraph 3.10 to be removed, stating that there are situations where board members should have the right to seek to change a decision – for example, if the board makes a decision against the advice of its professional advisers. The research team suggests that the Standards Commission’s guidance may be an appropriate place to provide further clarity on the issues around collective decision-making.

A couple of respondents also felt that the paragraphs relating to confidentiality (3.22-3.24) suggested that whistleblowing would represent a breach of the Model Code – one respondent called for more clarity on this.

Other comments from respondents on this section included:

• in Paragraph 3.7, the restriction on the criticism of officers is worded too restrictively and does not allow for constructive criticism;
• also in Paragraph 3.7, the word ‘public’ is open to interpretation, particularly where comments are made on social media and not to a more restricted audience;
• in Paragraph 3.8, the adjectives ‘unfair’ and ‘undue’ are unnecessary;
• while the revised section on gifts and hospitality (in Paragraphs 3.12 to 3.20) is helpful, this set of provisions appears denser and is less clear than other parts of the revised Model Code;
• in Paragraphs 3.25 to 3.27, the provisions about dealings with – and responsibilities to – individual public bodies are helpful, but another paragraph should be added requiring board members to disclose connections in informal dealings with officers;
• Paragraph 3.29 is too restrictive in confining the duty to identify and resolve conflicts of interest to companies or charitable trusts – it was felt that this duty should apply to conflicts of interest with any outside body to which the board member is appointed, regardless of that body’s legal status;
• Paragraphs 3.12 and 3.19 should explicitly relate to issues regarding board membership only.