Subordinate Legislation
Standards in Public Life Code of Conduct: Councillors' Code (SE/2001/50)<br />Standards in Public Life Code of Conduct: Members' Model Code (SE/2001/51)
Okay comrades, now that we have had a break we will continue our long meeting.
Before I introduce the Deputy Minister for Finance and Public Services and civil servants, I will go over the affirmative procedure with committee members, because it is some time since we have had to deal with subordinate legislation that is subject to it, as the Standards in Public Life Code of Conduct: Councillors' Code and Standards in Public Life Code of Conduct: Members' Model Code are.
The report of the Subordinate Legislation Committee has been included in the papers for today's meeting. The committee did not consider that Parliament's attention needed to be drawn to the councillors' code, but it sought clarification from the Executive on the members' model code. The Executive's response to the Subordinate Legislation Committee is included in the report.
The procedure will be as follows. I will allow time for the Deputy Minister for Finance and Public Services to give evidence to the committee on both codes of conduct. Members can ask questions only for clarification or explanation during that time. The minister can decide whether to answer them himself or to call on his officials to answer.
At the end of that time, I will announce that the time for questions is over and we will start the debate. The committee will debate the two motions separately. I will call the minister to open the debate and move the first motion, which is on the councillors' code, before I ask whether any committee members want to speak in favour of or against the motion. When everyone who wants to speak has done so, I will give the minister the opportunity to sum up and will then put the question on the motion. The same procedure will apply for the second motion. The process is much the same as that for stage 2 of a bill. Is everyone clear? Keith, are you clear? You are looking at me as if you might not be.
Just stop me if I go wrong.
I will.
We have with us today Peter Peacock, the Deputy Minister for Finance and Public Services, Gordon McNicoll, who is head of the solicitors division A1 in the Scottish Executive finance and central services department, and David Spence, who is head of the public bodies and executive agencies division in the Scottish Executive corporate services department. Gentlemen, I apologise for keeping you waiting—we are having a marathon meeting today, as we are coming up to Christmas.
I have a few opening remarks to make and then I will be happy to answer any questions that members may have.
It is good to be with the committee this afternoon to talk about the refined and developed councillors' code and the members' model code. The codes arise from the Ethical Standards in Public Life etc (Scotland) Act 2000, which establishes a new ethical framework to reinforce public confidence in all who serve on councils and public bodies. The codes are a key part of the new ethical framework and set out the standards that the public can expect from those who serve them.
I last met the committee during the consultation on the draft codes. The draft codes generated a lot of interest and I thank people for taking the time to respond. The consultation confirmed both the strong support for the concept of codes of conduct and the existence of a consensus on the key aspects of the codes. There is a desire for close parity between the two codes and I am confident that the councillors' code and the members' code, in their final form, will be highly consistent with each other. The codes are specific to councillors and to members of public bodies and reflect the differences between the types of public service that both are engaged in. Neither one is more onerous than the other.
I know that the committee has received correspondence from the Convention of Scottish Local Authorities, with which we have worked closely during the development of the codes. COSLA believes that, although it is desirable that the two codes be similar, the particular circumstances of local government justify some variances between them. There is a high degree of parity between the two codes, as both are based on the MSPs' code of conduct and share the same explicit principles. However, there are some obvious differences. For example, the section on election expenses is clearly relevant only to the councillors' code. Other differences are also justifiable on the ground that they are tailored to meet the needs of different types of bodies that make decisions in different ways and contexts. The manner in which the registration and declaration of interests is handled reflects those differences.
Other parts of the ethical framework, notably the standards commission and the chief investigating officer, will be able to work effectively with those codes; the codes are the foundation on which the commission will be able to work with Scotland's councils and with public bodies to advance the business of improving and delivering on the Ethical Standards in Public Life etc (Scotland) Act 2000. We envisage that the codes will come into effect in the summer of 2002.
No one should underestimate the seriousness of allegations of a breach of the codes triggering an investigation or a hearing. The codes serve as an important part of the ethical framework that has been put in place. In short, the codes and the framework will ensure that we have in place a system of accountability that not only reflects and supports the needs of all those involved in public life but commands the respect of the public.
When we discussed the codes earlier in the year, the question of an appeals procedure was raised. What is the current situation?
I understand that, although the appeals procedures are not mentioned in the codes, they are covered in the Ethical Standards in Public Life etc (Scotland) Act 2000. If the standards commission found someone to be in breach of the codes and if that person wished to appeal, they could do so through the sheriff courts.
Would it not have been better to include information on the appeals procedure in annexe A of the code, with the information on penalties?
I will be happy to consider ways of ensuring that the people who are subject to the codes are aware that an appeals procedure is available to them. Perhaps an accompanying letter, or something of that sort, is required.
The code will show the penalties but people may not be aware of what is in the act. I do not think that every councillor or every member of a public body will have a copy of the act.
I am advised by my officials that, because the appeals process is set out in the act, it was felt that it was not necessarily appropriate to set it out in the codes. However, I will consider the ways in which we can communicate with people to ensure that they clearly understand the appeals process.
I want to ask about the Subordinate Legislation Committee report and the members' model code. A question was raised over which parts of the code were mandatory. Is some of it mandatory or is it all discretionary?
It is not all discretionary. The model code will go out to individual bodies so that its terms can be adjusted to suit the individual circumstances of those bodies. When the minister approves the final version of the members' code, they will be under a duty to have regard to the model code, as the act says:
"Ministers shall, when approving, substituting or devising a code … have regard to the members' model code."
The minister will not be able to disregard the terms of that code.
I am grateful to Dr Jackson for raising the issue. I have noted the concerns that the Subordinate Legislation Committee raised and I want to make our position clear—I want firm statements to be on the record. I assure the committee that my clear expectation is that the overwhelming majority of provisions in the model code will be adopted by all public bodies. I would consider carefully any suggested variation and would not be prepared to approve anything that lessened the burden of openness that the model code establishes. Although individual bodies must have the freedom to ensure that the code operates effectively in their particular context, they cannot interpret that flexibility as affording any opportunity whatever to lessen the burdens of openness required by the model code. I hope that that makes my position clear.
I am sorry to have to return to an issue that I have raised before. I remain concerned about the section in the councillors' code on planning applications. If anything, the current version suggests that the situation is worse rather than better. I find it strange that a code of conduct would say to local councillors, as section 7.2.7 does:
"You should not organise support or opposition, lobby other councillors or act as an advocate to promote a particular recommendation on a planning application, on a planning agreement or on taking enforcement action."
I would have thought that that was one of the more fundamental roles of a councillor if he or she receives representations from local people on what may be major planning, road safety or environmental issues that affect the entire area. Section 7.2.7, if taken literally, is extreme and ties councillors' hands, making it difficult for them to represent their area.
Section 7.2.8 says to councillors:
"you must declare an interest and not take part in any consideration of the application in question and you must leave the meeting room until consideration of the matter is concluded."
That suggests that councillors have less right to attend a meeting than an ordinary member of the public. I find it strange that such draconian measures have been taken in what I know perfectly well is not an entirely democratic system but in what is understood by the public to be part of a democratic system.
I am straying into slightly difficult territory here. Planning is not part of my brief, but the councillors' code clearly is and I am trying to drag to the front of my mind the substance of the correspondence that we had with Iain Smith when he raised the issue a few months ago.
It is not fair to say that a councillor is debarred from making representations through their usual channels. For example, if there are local concerns about a planning application that involves access or a road junction, for example, it would be perfectly in order for the councillor to raise those concerns with the planning officer and to ask them to take those representations into account when they made their recommendations to the planning committee.
The onus on members in the code relates to organising support or opposition, lobbying other councillors or acting as an advocate to promote a particular recommendation or planning application. That is somewhat different from my point about drawing concerns to the planning officer's attention.
If a councillor chose—for legitimate and local reasons—to take a stance on a planning application in advance of and therefore without the benefit of the planning officer's recommendations and the planning committee's decisions and undertook any of the activities suggested in the code, they would do so as if they were a member of the public instead of a councillor making a judgment on a procedure within the planning framework. Within that framework, they are legally obliged to have regard to the planning officer's advice or recommendations. A councillor must make that distinction. Although it is perfectly legitimate for a politician to start a campaign, when councillors adopt such a position they would be required to step outwith the usual bounds of the planning procedure—so giving up their normal rights as a councillor—as they would not have had the benefit of the planning officer's advice. I am sure that the amount of case law and the number of planning appeals on those matters will condition any consideration of the issue.
I understand that point, which is largely covered by section 7.2.9 of the councillors' code. However, section 7.2.7 seems to suggest that a councillor cannot do what you are saying. The point is not that a councillor can decide to undertake certain activities in respect of a particular case—although, if they do, they will not be able to vote on the planning committee or in a council meeting when the matter comes up—but that, under the code, a councillor should not undertake those activities. A local member who decides that an issue is so important to the community that, for example, they must organise a petition about it is debarred from doing so by section 7.2.7. However, I fully agree with your point that that is an unfortunate consequence of the current situation with planning law and is covered by section 7.2.9. It just seems that section 7.2.7 and the latter part of section 7.2.8 take the matter slightly too far.
The purpose is to set out the distinctions that a councillor has to draw concerning the actions that they can take as a citizen and as a councillor, given their specific role in judging planning applications and the legal duties and requirements that are attached to that role.
As I said in my opening statement, we have to develop the relationship with the standards commissioner and the chief investigating officer, who will have a role in helping to interpret matters and in giving advice about changes that might be required. In the light of Iain Smith's points, it might be wise to inform the commissioner, when they are appointed, of precedents in planning law or case law to ensure that proper advice can be given to councillors when they ask the commissioner what stance they can take on a particular case. I am more than happy to raise Iain Smith's question with the standards commissioner once they are appointed.
I should declare an interest, as I am still a councillor and have recently been involved in a controversial planning application in my ward. Indeed, I have spoken against the application at a public meeting. Would sections 7.2.7 and 7.2.9 of the councillors' code preclude a councillor from taking such action in future?
As I said, I am in difficult territory. Because I do not hold the direct planning brief, I am not fully conversant with the recent case evidence or the recent planning guidance that has been issued to councils.
In the circumstances that you describe, councillors may have to make a choice about whether, before coming to a decision, they should wait until the end of the planning process, at which point they can see the considered advice of planning officials, or whether, deciding that they need to make a judgment in advance of that, they should campaign and make it clear that they will oppose the application. If councillors choose the latter course, it seems that they would need to say at the planning meeting that they had made their judgment before seeing the planning advice. That would probably mean that they should not take part in the planning meeting. However, I would like to take further advice before confirming that that is the position.
The proposal that I referred to is the planning department's recommendation and will remove the last piece of green space from my ward—
Keith—
I am trying to clarify my point. Councillors have no choice but to get drawn into such issues if a large part of the electorate are against something. That is the point that Iain Smith is trying to get over.
I know that you are trying to clarify the matter, but there is little point in giving us examples. I think that the minister appreciates the point.
Keith Harding is referring to a zoning of land, not a planning application.
It is an application for a housing development.
Picking up on that point, I point out the anomalies between the situation for MSPs and that for councillors. Sections 7.2.8 and 7.2.9 are dangerous for local councillors. MSPs can make written objections—
Sandra, can we have a question?
I want clarification from the minister. MSPs can make objections to planning applications and can go to the council to speak against the application. However, local councillors will not be able to take part in the planning application. Iain Smith has raised a serious point about such anomalies.
I understand your point, but the distinction between the MSP and the councillor is that the councillor has the responsibility for the planning decision in law, whereas an MSP does not. The MSP is free to decide to campaign or to represent objections to the application because the MSP does not have to make the final decision, which will be based on the planning officer's professional advice.
I understand that, but for local councillors those are important points, which the minister should—as he said—ask the commissioner to consider.
I am more than happy to ask the commissioner to examine some of those matters. I shall refer this discussion to them. Clearly, that part of the code is of concern to members. However, the code engages with current law, precedent and our planning colleagues' guidance.
I want to change the subject completely. Section 4.9 of the members' model code states:
"Where you undertake a trade, profession or vocation, or any other work, the detail to be given is the nature of the work and its regularity."
Does "profession" include consultancy?
I suppose that depends on whether one regards consultancy as a profession. Having been a consultant at one time, I regard consultancy as a profession. I think that "profession" includes consultancy, but that may also depend on the status of the individual. As you know, some consultants are self-employed, so they would be picked up under section 4.8. Notwithstanding that, I think that section 4.9 applies to anyone who is undertaking a professional task.
As there are no other questions for the minister, I now close the period for questions and start the formal debate on the councillors' code. I ask the minister to open the debate by moving the motion on the councillors' code.
Motion moved,
That the Local Government Committee, in consideration of Standards in Public Life Code of Conduct: Councillors' Code (SE/2001/50), recommends that the Code be approved.—[Peter Peacock.]
By and large, the proposed councillors' code is to be welcomed. The changes that have been made to clarify and tighten up the code are improvements.
I want to put on record my continuing concern about section 7. I am glad that the minister has given assurances that that will be addressed once the standards commissioner is appointed. I feel strongly for councillors, who will find themselves in an almost impossible position. If an election is coming up and there is a major controversial planning application in their ward about which they can say nothing, opposition candidates will say that the councillor has been silent. The public do not understand the distinction in law. They expect their councillor to speak for them, irrespective of that distinction.
The issue is a major problem and will cause difficulties for all parties. However, it is not party political—it will affect the rights of councillors. A more selfish point is that it will mean that more people will be forced to go to their MSPs on planning issues, because they will feel that councillors cannot take up those issues on their behalf. MSPs will end up bearing the brunt of the planning system.
If there are no more comments, I ask the minister to respond to Iain Smith's points.
I repeat my undertaking to refer the question to the standards commissioner, who will have the power to issue guidance. That might be one of the issues on which he chooses to do so. As I should have said earlier, the code was drafted by COSLA and reflects local authorities' views. I am happy to reassure the committee that I will refer Iain Smith's question to the standards commissioner.
The question is, that motion S1M-2479 be agreed to.
Motion agreed to.
That the Local Government Committee in consideration of Standards in Public Life Code of Conduct: Councillors' Code (SE/2001/50), recommends that the Code be approved.
Motion moved,
That the Local Government Committee in consideration of Standards in Public Life Code of Conduct: Members' Model Code (SE/2001/51), recommends that the Code be approved.—[Peter Peacock.]
Motion agreed to.
I thank the minister and his officials and I apologise for keeping them so late.
We will try to put fewer brackets in the next statutory instrument.
Meeting continued in private until 18:25.