Local Government, Housing and Planning Committee [Draft]

Meeting date: Tuesday, December 12, 2023

Official Report 725KB pdf

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Standards Commission for Scotland: “Annual Report 2022-23”

Item 2 is for the committee to take evidence on the Standards Commission for Scotland’s annual report for 2022-23 from Lorna Johnston, executive director, and Richard Wilson, case manager. I invite Lorna Johnston to make an opening statement.

Good morning, everybody. As the committee is aware, the Standards Commission is responsible for encouraging high standards of conduct in public life. Our remit is to promote high ethical standards and codes of conduct for councillors and members of devolved public bodies and to issue guidance on how the codes should be interpreted.

The Standards Commission is also responsible for adjudicating on alleged breaches of the codes and, when a breach is found, for applying a sanction. Following the conclusion of any investigation that he has undertaken into an alleged breach of the applicable code by a councillor or member, the Commissioner for Ethical Standards in Public Life in Scotland sends the Standards Commission a report that outlines his findings and conclusions. Under the governing legislation, the Standards Commission then decides whether to hold a hearing, direct the commissioner to carry out further investigation or do neither, which means that no further action is taken on the complaint. The Standards Commission decides to take no action if it does not consider that it is in the public interest or proportionate to hold a hearing.

Hearings are conducted—usually in public—by a hearing panel that comprises three Standards Commission members, which determines whether the councillor or member concerned has breached their respective code. If a breach is found, the panel is obliged to impose a sanction, which can be a censure, suspension or disqualification.

The Standards Commission has five part-time members, who are appointed by the Scottish Parliamentary Corporate Body with the Parliament’s agreement. The Standards Commission’s convener is contracted to work the equivalent of three days a month, while the remaining members work two days a month. Members also sit in hearing panels as and when required. The Standards Commission has one full-time member of staff, who is me. As the executive director, I am the accountable officer. I am assisted by case manager Richard Wilson, who is with me today, and by an office manager and an admin assistant, all of whom are part time. The overall staffing complement is the equivalent of 3.1 full-time members of staff.

As the committee will have noted from our annual report for last year, the Standards Commission’s strategic aims are to have a positive impact on ethical standards in public life; to pursue continuous improvement in the ethical standards framework and the way in which we do our work; to pursue and develop strong relationships with our stakeholders; and to ensure that all stakeholders have easy access to high-quality information about the organisation, its work and any initiatives.

Work that was undertaken last year to meet those aims included continuing to help councillors and members to comply with the requirements of the codes by holding training events for elected members of two councils and for board members of nine public bodies; publishing and issuing standard training videos on the codes and monthly blogs on ethics and governance issues; producing further advice notes on specific topics and scenarios that can lead to breaches of the code, such as conduct during online meetings; and publishing interactive training modules on a new e-learning page of our website.

We have worked to increase public awareness of the expected standards by publishing on our website animated videos on the codes, on using social media and on bullying and harassment. We have produced a card to help councillors to manage expectations when they attend community council meetings by explaining what they can and cannot do under the code.

We continue to work with the commissioner to identify trends, resolve any inconsistencies in how the codes are interpreted and improve the processes for investigating and adjudicating on complaints. We engaged with him on proposed changes to our hearing rules and provided feedback on his publicly available investigations manual.

We made timely decisions on the 44 cases that were referred. Decisions were made, issued and published on all no-action cases within an average of four days, and all hearings were held within an average of 12 weeks from date of receipt of a report from the commissioner.

In this year to date, the Standards Commission has continued to undertake outreach work to promote the codes. That includes presenting with the commissioner at the Society of Local Authority Lawyers and Administrators in Scotland’s annual conference and providing tailored training sessions to the boards of several public bodies and to elected members of Clackmannanshire Council.

The Standards Commission has continued to update its educational material in light of feedback and inquiries received and decisions made. Along with the Improvement Service, we have produced an advice note for councillors on access to information, which we will issue shortly. We are working with the Improvement Service on two webinars—on engaging with constituents and on good practice in using social media—that will be held early next year.

In relation to the 33 cases that the commissioner has referred to date this year, we have made and published 19 no-action decisions. We have also held 12 hearings so far, and a further five hearings are scheduled for early next year.

I hope that that has been a helpful introduction to and summary of our remit and work. I am happy to answer any questions that the committee may have.

Thank you—it was helpful to get an overview of your work. When you previously spoke to the committee, which was in January—we are bookending the year with you—we heard that the responses to the commission’s surveys on whether people felt that standards had improved were a bit mixed. I am interested in what further work you have done this year on understanding public trust in councillors.

We have done no further surveys this year but, from what we know from the inquiries that we receive, from hearings and from our annual workshop with monitoring officers, standards of conduct have been mixed. We are seeing an improvement in the number of complaints that the commissioner receives and the number of cases that are referred to us. We are seeing fewer cases about more technical aspects of the code, fewer inadvertent breaches and fewer cases where there is an element of personal benefit. However, we are still seeing quite a lot of cases that relate to respect.

In relation to the respect cases, it is hard to know whether standards of behaviour are definitely decreasing or deteriorating or whether the public are more aware of the fact that they can make a complaint and of the standards that are expected of councillors. The commissioner wants to do research on that in the next year or so. We would be interested in helping him with that.

That sounds great. I explored the page with the advice notes for councillors and the card for attending community councils. That is helpful because it is about not only what councillors are expected to do but what people can expect from them; it is clear about where the boundaries are.

Definitely. As I said to the committee when I was previously here, we produced a card on assisting constituents that councillors could take to their surgeries, which was to help to manage expectations—for example, it lets constituents know that councillors cannot overturn a council decision, although they can help to find out what is happening with a case that is before the council or find out about a service that the council provides.

The point is the same in relation to community councils. Sometimes there is an expectation that elected members of councils can do things that they cannot do under the code—for example, they cannot prejudge a planning application. We hope that, by having a card that they can take to community council meetings, councillors will be able to say, for example, “Look—this is what I can and cannot do. I can listen to your views, but I can’t prejudge the planning application,” which will manage expectations and make meetings easier for them.

That certainly will help. In surveys that you did in the past, most of the issues that cropped up related to respect, bullying and harassment. You said in your opening statement that most of the issues now seem to be about respect. Will you give us a bit more detail on that? We are particularly interested in hearing how the use of social media may be impacting on people who are considering taking up or leaving elected office and whether you are noticing any trends.

The respect cases that we receive are a bit of a mix between social media, conduct at meetings, conduct towards officers and sometimes conduct towards constituents when councillors are out and about. We are still seeing social media cases. As I said, we are going to do a webinar with the Improvement Service, and we have done an advice note on social media for councillors.

The difficulty is that complaints can be made about behaviour on social media that the commissioner will say are inadmissible or will not uphold because the behaviour was not disrespectful. We advise councillors to try not to be personal. We are not trying to inhibit their freedom of expression or the way in which they make their political points; we encourage them to concentrate on the policy or the political issue rather than making it personal. We understand that that is difficult for councillors, because many of them are targeted with a lot of abuse on social media—I am sure that, as politicians, you all know that.

Our view, which I know is the commissioner’s view, is that councillors should lead by example. We do not want anyone to be targeted but, on the other hand, if councillors lead by example and make sure that standards of debate are at a certain level, the hope is that that will stop the public doing that—well, it will not stop people, but it might encourage them to keep debate at a certain level, too.

So the approach is about leading by example where possible. That is helpful.

I bring in Marie McNair. It would be great if you took a moment to declare your interest, Marie.

I state that I was a councillor in West Dunbartonshire Council from 2003 to 2022.

I will move on to my questions, which are about the revised code of conduct that the Scottish ministers issued. You have spoken about the issue quite a bit, but are there areas where the current code may need to be strengthened?

The only area that we have identified is the provision on accepting hospitality. The code says that councillors should never ask for gifts or hospitality and should not accept hospitality, except in really limited circumstances. The feedback that we have had is that that can sometimes be difficult to interpret. One of those circumstances is when the council has approved the hospitality in advance, but there is no guidance on who would approve that in advance.

We intend to work with monitoring officers and the Convention of Scottish Local Authorities to see whether we can do anything to amend the code or, if we cannot do that, to strengthen our guidance to make sure that it is interpreted consistently among councils.

The annual report states that the commission had decided to renew all three directions to the Commissioner for Ethical Standards for a further two years. Why did you feel the need to do that, and what procedures were followed in making that decision?

We renewed all three directions, although we renewed the eligibility direction only for a little while to allow the commissioner time to include eligibility criteria in his publicly available investigations manual, which he has now done. That direction is therefore no longer in place, because he has the eligibility criteria in his manual.

Of the other two directions, one requires the commissioner to update us and the parties involved on the progress of investigations. We renewed that after consultation with stakeholders, including the commissioner. We felt that that gives everybody confidence that people are being kept up to date and that investigations are moving along. There will always be some delays with investigations while the commissioner waits for responses from parties or if he cannot contact witnesses, for example. I am sure that the commissioner will be able to say more about that direction, but it is just about making sure that investigations are progressing.

09:15  

The other direction requires the commissioner to report to the Standards Commission on the outcome of all his investigations, regardless of whether he considers that there has been a breach of the code. I previously gave the committee the reason why we have that direction in place, and we renewed it for the same reason, which is that it helps to ensure consistency in interpretation of the codes when one organisation does the investigation and another does the adjudication. If difficulties arise in how to interpret the code, two organisations can look at that. There is no right of appeal against the commissioner’s decision not to uphold a complaint, so that direction gives people comfort that a second organisation looked at the issue.

Another reason for renewing the direction is the fact that, given that we can hold public hearings and that we put people on oath or affirmation at hearings, it allows evidence to be tested fully and for any interpretative discrepancies to be aired fully at the hearing. We consulted various stakeholders, including the commissioner, and decided that it was appropriate to keep that direction in place.

I hand back to the convener.

I bring in Pam Gosal, who joins us online.

Good morning, panel. What level of interest is there in the Standards Commission’s activity at the local and national levels? In what ways does the commission ensure that the public are informed about decisions that affect their council members?

We publish all our decisions on our website, whether those are no-action decisions or decisions that we make at hearings. If we hold a hearing, we publish information about it—about where it is being held, the date, the time and so on. If we hold a hearing online, we live stream it on our website. To ensure that the public are aware of hearings, we issue media releases before them to tell local media that we are holding them, and we always issue a press release after them.

Richard Wilson and I had a meeting with local journalists last year to advise them about the work of the Standards Commission in order to generate interest. I think that that was quite effective, because we now have contact names for various local journalists, whom we will automatically email to tell them about hearings and send press releases to. That really helped to increase awareness.

We track what media coverage we have had. We tend to have some local coverage of hearings, if not national coverage. I think that we will try to hold another meeting like the one that I mentioned with local journalists next calendar year.

That sounds very proactive. Getting the press on board so that you have another avenue for communicating your work is a good approach.

Good morning. I have a couple of questions about the business plan, which refers to section 31 of the Local Government (Scotland) Act 1973 and your intention to raise issue with that. That is to do with disqualification, sanctions and so on. Can you flesh out your thinking on that for the benefit of the committee, please?

As you said, section 31 of the Local Government (Scotland) Act 1973 outlines the circumstances in which somebody would automatically be disqualified from being a councillor. At the moment, there is sequestration and a couple of other technical grounds, but the main issue that we have a slight difficulty with is where somebody has been convicted of a crime and has received a custodial sentence of three months or more. In 2021, I think, we identified that that meant that there would be a slight gap between the legislation and what we think the public’s expectations would be with regard to when someone could or could not be a councillor, because someone will be covered by the code only if their behaviour occurs when they are acting as a councillor or they could reasonably be perceived as acting as a councillor.

For example, in the case of someone having been convicted of a crime of a sexual nature, which had nothing to do with their role as a councillor, if they did not receive a custodial sentence or they were sentenced for a period of less than three months, they would not be automatically disqualified, and we would not be able to take any action. We felt that there was a discrepancy in relation to the Local Government (Scotland) Act 1973 because, in sentencing guidelines, there is now a presumption against short custodial sentences. We wrote to the then local government minister and asked for that to be reviewed. I think that similar changes have been made to the relevant legislation in England and Wales.

Earlier this year, the Government consulted on making a change to section 31 of that act so that somebody would be automatically disqualified if they had been convicted of a crime and had been put on the sex offenders register, regardless of the length of any sentence that was served on them. That consultation closed at the end of August, and we are waiting to see what happens. I assume that the Government is currently analysing the outcome of the consultation.

Are you asking for a similar revision for sentences that do not relate to the matters that you have described and are for under 12 months?

No, we are not, and I do not know whether anyone else has suggested that. Our view is that, if someone received a two-month sentence for a driving incident, for example, that would not necessarily affect how the public might perceive their ability to be a councillor. That was the only part of the disqualification provisions that we sought to be changed.

Last week, we heard from the Scottish Public Services Ombudsman. We talked about own-initiative powers, whether they are a good idea, and whether they should be pursued. What is your approach to that? Do you feel that you should have own-initiative powers?

Do you mean powers to ask for something to be investigated?

Yes.

I do not think that we need those powers. Anybody can make a complaint to the commissioner, and I think that, if a breach of a code was so egregious, it would be picked up by a member of the public or an opposition councillor, especially if the complaint related to a councillor. I would have concerns that, if we initiated a complaint and then adjudicated on it, there could potentially be a perception of unfairness. As anyone can make a complaint, I do not think that there is anything in the legislation that would preclude us from doing so if we felt that it was necessary, although I cannot envisage a situation in which we would think that it was necessary.

If we thought that there had been a low-level breach of the code, we would be quite happy for that to be resolved informally. For example, if somebody had apologised and the complaint was resolved locally, we would not have any difficulty with that.

If the commissioner was investigating a complaint about a failure to declare an interest, he would look at the person’s register of interests. If he discovered that they had not registered an interest, he would be able to include that in his investigation.

I do not think that we feel that we need own-initiative powers.

That is very clear. I will probably ask the Commissioner for Ethical Standards in Public Life in Scotland team for its view on that when it joins us for the next evidence session. Thank you very much for those answers.

From what you have said, it sounds as if the difference relates to the scope of work that gives rise to the desire for own-initiative powers.

As I have said, if the conduct has been so serious that we would want to look into it, I cannot imagine a situation in which no one else would have picked up on it.

For sure.

My question relates to councillors as well as officials in councils. Over the past year, I have spoken to councillors from all parties who have expressed concerns about what they think is the code of conduct being used against them by officials. Often, they cannot name those officials when they talk about incidents. However, they have been concerned that simply discussing an issue has been used against them in complaints raised.

What research have you done on that and what conversations have you had about it? I have been acutely aware that that is a real concern for councillors over the past year, and I think that that has led them to feel that they cannot do their job properly.

I do not think that we have had any referrals in which that has been an issue. The code says that councillors cannot criticise in public the conduct, capability or performance of an identifiable officer. I do not think that that precludes councillors in any way from scrutinising the service of others. They just need to do that in a way that is respectful and does not make it personal.

We could maybe do a bit more training on that, because it sounds as if that is more of a misconception than an issue. I am pleased to hear that councillors are aware of the code and that they are worried about potentially breaching it. However, it is all about how to word any complaints.

In our current standard training presentation, we say that, if someone has a report before them and they are concerned that the officer has not done a proper risk analysis, they should say, “I don’t think that that risk has been properly considered. Could you go back and gather further information?” That approach would be absolutely fine, and it would not be a breach of the code. However, if an individual, such as an author of a report, was named and it was said that they were incompetent at their job because they had not done something properly, that could potentially be a breach of the code.

It is about how someone goes about making complaints rather than the code preventing them from doing so. If they felt that officers were weaponising the code to use against them, they may need to speak to the officers in private or to the chief executive or the monitoring officer. They could go to them and say, “That’s not our understanding of the code.” I would urge them to have a conversation with us, as well, to see whether we could get that resolved.

That is helpful.

I would hope that individual council officials need to be held to account in very few cases. However, the code has given them additional protection so that councillors feel that they cannot raise concerns. Maybe it needs to be reviewed to look at that. It might be useful for you and the Commissioner for Ethical Standards in Public Life in Scotland to speak to councillors who have raised those concerns so that you can see why they feel that the code is holding them back in their scrutiny role.

We will make a note of that. We have an annual workshop with monitoring officers, and we can certainly raise that with them.

Councillors can still raise issues about an officer’s conduct or capability. They just need to do that in private and through the right channels—for example, by speaking to the person’s line manager or their organisation’s chief executive.

That concludes our questions. Do you want to highlight anything else to us?

No.

We have pretty much covered things.

Thank you very much for giving evidence to the committee. I suspend the meeting to allow for a change of witnesses.

09:27 Meeting suspended.  

09:29 On resuming—