Local Government and Communities Committee

Meeting date: Wednesday, October 6, 2010

Official Report 484KB pdf

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Councillors’ Code of Conduct

Item 2 is consideration of a draft code of conduct. The committee will consider the revised code of conduct for councillors and the Executive note for the Ethical Standards in Public Life etc (Scotland) Act 2000 (SG 2010/180). The revised code is to be approved by resolution of the Parliament, so the committee’s role is to consider it in the same way as an affirmative instrument. The committee will take evidence from the Cabinet Secretary for Finance and Sustainable Growth and his officials.

I welcome the cabinet secretary and his officials to the meeting, and ask him whether he wishes to make any introductory remarks.

Good morning. I am accompanied this morning by David Henderson and Laura Halliday of the local government team at the Scottish Government.

I will provide some background to the councillors’ code of conduct and the revised code. The councillors’ code of conduct plays a vital role in setting out clearly and openly the standards of conduct that must be applied to councillors. It is a key element of the ethical standards framework that was introduced by the Ethical Standards in Public Life etc (Scotland) Act 2000. The ethical standards framework also established the Standards Commission for Scotland, the office of the chief investigating officer and a model code of conduct for members of public bodies. Together, those elements work effectively to promote high standards in public life in Scotland.

The code was established in 2001 and came into effect on 1 May 2003. The code has been supplemented by statutory guidance issued by the Standards Commission, which assists councillors in their understanding of and compliance with the code. Read together, the code and its guidance provide councillors with a complete set of rules and responsibilities.

Since its introduction, the code has been considered to be drafted appropriately. It is vital that that continues to be the case. Therefore, when the Scottish planning system underwent major legislative reform during 2009, a review of the code was undertaken to assess the implications for the code. The review also provided an opportunity to review those areas of the code in need of clarification or reconsideration, drawing on the experience gained in its application.

The model code of conduct for members of public bodies is similar to the councillors’ code of conduct in that it is based on the same key principles. However, the Scottish planning system does not apply to members of devolved public bodies, so the model code was not considered for review at this time.

The review was carried out by a short-life working group, which consisted of representatives from throughout local government, as well as the Standards Commission and the office of the chief investigating officer. The group agreed a set of proposed changes to the code, incorporating some of the existing guidance within the body of the code. A revised code was then prepared by the Scottish Government, and the group agreed that the changes to the code were substantive enough to merit wider consultation, which subsequently took place on an extensive basis.

The majority of those who responded to the consultation had previous experience of using the code, with responses coming mainly from local authorities. A wide range of opinions was given on many issues, although views were generally pretty diverse, and most of the comments received were not supported by most of the respondents. There was a general welcome for the revised code. The majority of respondents were positive about the changes to the code. However, further changes were subsequently made in the light of the comments received.

I emphasise that the ethical basis of the revised code remains unchanged from that of the original. The main change has been to section 7, which deals with the planning system. The other changes have been to provide clarity, to address points of detail, to improve presentation and to incorporate areas of statutory guidance, with the aim of making the code easier to use.

It is vital that the code continues to give assurance to the public that their elected members are acting in accordance with high ethical standards. The revised code will ensure that the system of accountability that is in place for Scottish councillors remains effective and up to date.

I am happy to answer any questions.

Good morning, cabinet secretary. The document is a welcome addition to and improvement on the councillors’ code of conduct.

Section 6.3 is on lobbying and access to councillors. It was of great concern to me that, after 2007, many councillors with whom I was closely involved—from various political parties—were not willing to engage with the public, objectors or even applicants on planning applications. I seek your clarification on the changes in section 6.3. Are they saying to councillors that, although it is okay to listen to applicants and objectors, councillors must not predetermine the outcome in any way or they will be withdrawn from any vote? Some of the advice that was provided by planning officers to various councillors, especially those who came in in 2007, has—inadvertently, I am sure—somewhat stifled public representation. I hope that the revised code will ensure that that does not happen.

I agree entirely with Mr Tolson. The circumstances that he recounts have been the driver behind the changes that are made in section 6.3, which make the point absolutely clear. Whether or not there was a lack of clarity, the scenario that Mr Tolson paints in which many elected members were encouraged to consider their position is entirely accurate. It is important that elected members are in a position to listen to the perspective of a developer or a local community.

Two key considerations apply to that dialogue. First, the elected member should not prejudge the application or express any preference in that dialogue. Secondly, it would be consistent with the principles of the code that an elected member should listen to the perspective of both sides of the argument to ensure that they gain a rounded perspective of the issues. I am happy to associate myself with Mr Tolson’s perspective. I hope that the changes that have been made in section 6.3 provide the clarity that he has said is required.

I am grateful to the cabinet secretary for putting that clarification on the record. I hope that we can bring that point to the attention of our councillor colleagues throughout Scotland.

The code has been expanded considerably. I wonder whether any new or prospective councillor who picked it up and read through the section on the registration of financial interests might think, “I’m not going to bother with this.” We have embarked on a process that has led us to a logical outcome, but I wonder whether it is an outcome that might put off many public-spirited people who might have wanted to become councillors. The code might strike them as so complicated that they are bound to fall foul of something in it.

There is a balance to be struck here. The material on financial interests that has been inserted is a product of dialogue with the interested parties in the local government community, involving elected members in a number of local authorities. In that sense, the thinking behind the requirement to provide that type of information has essentially come from within the local government community, which has recognised that those issues must be properly and fully explored. Although I appreciate that the sections on financial interests require a lot of detail, I do not think that it is any more than a member of the Scottish Parliament would be required to give. The scrutiny of our personal financial positions and interests is recognised as an integral part of the scrutiny to which elected members are open. Although I would want nothing in the code of conduct to signal to individuals that there is not a role for public-spirited people to make a contribution to public life, it is important that a certain amount of information is openly available to members of the public where clarity is required.

Good morning, cabinet secretary. You said in your opening statement that there has been wide-ranging consultation on the document. Could you expand on what you mean by that? Some of my council colleagues have told me that they never saw the document and were unaware that there was a consultation. I am interested in how wide ranging the consultation was. You said that you had received a number of responses to the consultation. Can you give us that number?

The consultation paper was issued directly to all members of the Scottish Parliament and members of the European Parliament and the chief executives and leaders of all local authorities in Scotland. We could have issued it to every single councillor but, in the interests of efficiency, it was reasonable to circulate it to local authority chief executives and council leaders.

I do not have a figure in front of me for the number of responses that were received—sorry, I have in fact just seen that I do. Thirty-nine responses to the consultation were received in total. Of those, there were 24 from local authorities, five from private individuals, two from scrutiny bodies and one each from a member of the Scottish Parliament, a local authority society, a local authority planning organisation, a party-political group, a retail organisation, and a training and consultancy business. Two individuals did not give their permission for us to publish their responses. That is a fairly broad cross-section of sources.

Thank you for your detailed answer on the number of responses that were received and by whom. However, you indicated that only council leaders received the consultation. Why were opposition leaders in council groups not issued with the document? As I understand it, a number of the issues that are raised at council meetings in relation to the code of conduct and its application arise from the dissatisfaction of some opposition groups in local authorities with the way in which their issues are being dealt with at full council or committee.

The consultation document was issued to council leaders and council chief executives. Chief officers of local authorities have a duty to properly and fully inform members of the local authority about relevant issues and, in my experience, they do exactly that.

Fundamentally, this is not a new code of conduct; it is essentially a set of revisions to address the changes to the planning law that were made during the previous session of Parliament and which came into effect in 2009. The code’s fundamental ethos has not been changed; we have put in place a series of updates to ensure that the planning considerations are more fully and properly taken into account. Some of the issues that Mr Wilson raises to do with the nature of the code of conduct and the experience of elected members within the functions of local authorities are not really affected by the changes. They are more to do with the meat and drink of the code of conduct, which has been consistent since it was first established in 2003.

10:15

I will move away from the consultation process and on to the “meat and drink”, as the cabinet secretary has described it, of the financial interests of other persons. Section 5.10 refers to

“a close relative, close friend or close associate”

but section 5.11 states:

“This Code does not attempt the task of defining ‘relative’ or ‘friend’ or ‘associate’. Not only is such a task fraught with difficulty but is also unlikely that such definitions would reflect the intention of this part of the Code.”

Could you shed any light on why it was felt that you could not define those terms? If we are looking for clarity on the way forward, it might have been useful in some of these areas to get a definition of the association that may exist between an elected member and a family member, friend or associate.

Ultimately, these issues come down to the exercise of individual judgment by the members concerned. It would be difficult to define who is a close relative, because my view of what that would be might be different from that of another elected member. The key question is what judgment the elected member exercises in respect of any financial interest that may have an implication for or a bearing on the exercise of their duties. That is ultimately a personal judgment. If individuals get that judgment wrong, it can lead to issues of perception and issues of substance in relation to the nature of their dealings. To try to prescribe it in the code would be a difficult task, but the code puts in place a reminder and a word of caution to elected members to consider their associations in relation to their financial interests and it leaves it to them to exercise their judgment wisely.

Good morning, cabinet secretary. My question follows on from John Wilson’s one about the availability of information to opposition members and their ability to comment on the code of conduct. I suspect that the subject of my question does not fall within the code of conduct, but let me ask it anyway. Where would councillors be able to make representations regarding the operations of the council and the procedures of meetings if they felt that how those were being handled was stifling debate and stifling their ability to fulfil their role as councillors and to represent their electorate fully? If that is not covered in the code of conduct—I cannot see it in the code—where would it be picked up?

I think that that issue would be picked up by the local authority’s standing orders, which set out the rules by which the democratic processes of the authority are undertaken. In my view, it is not the place of a code of conduct to do that. A code of conduct is there to ensure that individuals carry out their work as councillors in an appropriate manner. There is a section in the code of conduct about conduct at meetings. I suspect that, on certain occasions, a refresher course or a refresher read might be required, so that element of the code of conduct will be relevant.

The general operation of the democratic machinery of an authority is vested in the standing orders of the council, which are rules that are arrived at by the council itself. I concede that not all the rules might suit if one is in a minority in the council—I readily concede the arithmetic of that—but my impression of council standing orders is that they, and the ways in which business is transacted, are of pretty long standing. Therefore, some of the requirements of the code on conduct at meetings will be relevant only in so far as individuals are not operating within the spirit of the standing orders.

I thank the cabinet secretary for his response, and I think that he is correct that the issue should be dealt with elsewhere. I may take the opportunity to write to him about specific instances. However, the relevance to today’s debate is that bad behaviour by councillors, particularly at meetings, is often brought about by a feeling of injustice because of how some procedures are handled. I may pursue that matter with the cabinet secretary in another way.

Let me add that the issues are tested by the Standards Commission reasonably frequently. The commission has the task of separating inappropriate conduct from political debate—if I can put it as generously as that—and that is a difficult judgment to arrive at.

As there are no further questions, I invite the cabinet secretary to move motion S3M-7129.

Motion moved,

That the Local Government and Communities Committee recommends that the revised and updated Code of Conduct for Councillors for the Ethical Standards in Public Life etc. (Scotland) Act 2000 be approved.—[John Swinney.]

Motion agreed to.

I thank the cabinet secretary and his colleagues for their presence this morning.

10:22 Meeting suspended.

10:24 On resuming—