Model Code of Conduct for Members of Devolved Public Bodies
Item 3 relates to a draft model code of conduct for members of devolved public bodies, which the committee will consider under the affirmative procedure rule that is usually applied to statutory instruments. Members have a copy of the code and a cover note from the clerk.
We have one panel of witnesses to discuss this item, and I welcome to the meeting John Swinney, the Cabinet Secretary for Finance, Employment and Sustainable Growth and, from the Scottish Government, Alison Douglas, head of public service reform, and Gordon Quinn, policy officer at the public bodies unit.
Cabinet secretary, do you wish to make any opening remarks?
The Cabinet Secretary for Finance, Employment and Sustainable Growth (John Swinney)
Thank you, convener. I welcome the opportunity to make some opening remarks on this matter.
The Parliament demonstrated its commitment to the promotion of high standards in public life by passing as one of its earliest statutes the Ethical Standards in Public Life etc (Scotland) Act 2000, which introduced a new ethical framework under which the Scottish ministers were required to issue a code of conduct for councillors and a model code of conduct for members of the devolved public bodies listed in schedule 3 to the 2000 act, as amended. Each listed public body is required to develop an individual code based on the model code.
The codes of conduct are based on nine key principles: duty, selflessness, integrity, objectivity, accountability and stewardship, openness, honesty, leadership and respect. Although responsibility for ethical standards policy, including the codes of conduct, rests with the Scottish Government, responsibility for the codes’ day-to-day operation rests with the Standards Commission for Scotland and the Commissioner for Ethical Standards in Public Life in Scotland.
The councillors and members’ model codes were approved by the Scottish Parliament in December 2001 and brought into effect on 1 May 2003. The period between those two dates allowed the Standards Commission for Scotland to be set up and to establish working systems and a framework for ethical standards.
The “Councillors’ Code of Conduct” was subsequently revised in 2010 following changes to the planning system. The members’ model code was not reviewed at that time because the changes to the planning system did not impact on members of public bodies, with the exception of the two national park authorities. Now that the members’ model code of conduct is some 10 years old, it requires to be updated and, where appropriate, made consistent with the more modern councillors’ code.
If approved, the proposed revised model code of conduct would address points of detail and would be easier to understand, more user-friendly and proportionate. The proposed changes will also bring it into line with the councillors’ code.
A public consultation on the revised model code of conduct was carried out by the Government in February, running through to the end of April. An analysis report of responses has been published and is available on the Government’s website. The consultation sought views on the amendments to the existing model code, with the aim of establishing whether the revised code was clearer and more easily understood and whether the proposals were proportionate. Comments on any aspect of the code were also welcomed.
A total of 37 responses to the consultation were received from a wide range of stakeholders. The overall view of respondents was that they agreed that the model code of conduct required updating and that the proposed changes to the model code would achieve the aim of making it clearer and proportionate. The consultation responses provided feedback that has been taken into consideration and changes have been made that strengthen the model code and provide clearer information for its users.
In connection with this process, I note the evidence that the Commissioner for Ethical Standards in Public Life submitted to the committee in which he raised some substantive points. The commissioner queried whether it is appropriate to include a section on appointments to the boards of public bodies in the code of conduct. It is our view that the code provides an excellent vehicle to highlight the importance of ensuring more diversity in the appointment of board members. That is not simply about fairness and better representation, but because evidence suggests that if a board better reflects the people that it serves it might be better equipped to make decisions affecting them and so improve its performance.
The commissioner highlighted that the categories in the 2003 regulations, which set out the requirements for registers of interest, should mirror the categories in the model code. We accept that there are good arguments for doing that and we will proceed with an amending instrument once the Parliament has completed its scrutiny of the model code.
In relation to the registration of interests, the commissioner queried the use of a footnote in the code setting out which regulations are being referred to. We included that in order to be helpful and clear, and to avoid any confusion. The commissioner referred to other minor amendments in his evidence, and we are happy to take those on board.
In summary, the ethical basis of the revised model code remains unchanged from that of the original code. The proposed changes have been made to strengthen the model code and to bring it up to date, thus making it easier to use.
I welcome the opportunity to answer any questions that the committee might have.
Thank you. The first question is from Mr Wilson.
I seek clarification on who the code will apply to. You referred to public bodies, and we know that we have the councillors’ code of conduct, which covers the 1,222 councillors. In recent years, however, local authorities have established a number of arm’s-length organisations that include board members who are neither elected members nor officials and who are appointed by the boards of those organisations. How do we make those individuals accountable? Or do we not make them accountable in the same way as we try to make those in other public bodies accountable?
There is a difference between accountability arrangements and the exercise of responsibilities in terms of a code of conduct. The accountability of board members of arm’s-length organisations, for example, will be stipulated by the arrangements that surround the establishment of those bodies. That will vary, but in some respects members appointed to arm’s-length organisations will have an accountability arrangement to a local authority and they might have an accountability arrangement to the membership base of a particular service or organisation. Such issues of accountability are the responsibility of whatever arrangements are put in place.
Mr Wilson opens up an area of interest as to whether there is then the proper scrutiny of conduct issues. For example, if a councillor exercises responsibilities, their behaviour and actions are clearly governed by the code of conduct for councillors. If a member of a public body exercises any functions, their conduct is governed by the code that we are considering. However, members of arm’s-length organisations are in a slightly hybrid situation. They certainly will not be covered by the code that we are considering, nor could I require them to be covered by the code, because it relates to public bodies. Many arm’s-length organisations will be extensions of local authorities and will have been established under their governance. There might be a separate issue that we need to consider, which is whether all the due arrangements for managing and monitoring the conduct of individuals in those categories has been properly taken into account.
11:45
I welcome your comments. As you said, arm’s-length organisations are very much hybrid organisations, and they are appearing in the landscape more frequently. It would be useful, particularly for the public, if we were made aware of the responsibilities and duties that apply to arm’s-length organisations’ board members, who are not covered by the requirements in respect of public board members or local elected members. After all, such people serve on what are, in effect, public bodies as they carry out their duties in relation to the services that the bodies deliver for local authorities.
I am happy to take away the issue that you raised, to determine whether there is a gap in the governance arrangements. We can consider whether it would be appropriate for the Government to address the issue in due course. I am reluctant to intrude into areas that are properly within the governance of local government, but I will explore where the governance arrangements sit, to ensure that we consider the issue that you raised.
We are grateful, and we would be grateful if you could let us know what you determine.
We will reply to you, convener, on the point.
Section 2.1 of the revised model code of conduct says:
“The general principles upon which this Model Code of Conduct is based should be used for guidance and interpretation only.”
Will you say what you mean by “guidance and interpretation”? We know that when the Scottish Government issues guidance to local authorities there can be up to 32 interpretations of it—and depending on how many public bodies are involved, the number of interpretations can increase exponentially.
In essence, I would describe “guidance” as something to which the Government expects due regard to be paid. The word “interpretation” is there to support individuals and public bodies in assessing particular circumstances in which conduct has become the subject of scrutiny, to determine whether an individual’s conduct has been compatible with the code. Ultimately, judgments must be made about the conduct of individuals, and the provisions of section 2.1 are designed to provide public bodies and individuals with sufficient context and clarity around the judgment that they must make about whether an individual’s conduct has been appropriate.
Thank you.
I have a technical question. Our briefing from the Scottish Parliament information centre highlights differences between the 2010 code of conduct for councillors and the proposed new code for members of devolved public bodies. For councillors, the register of interests includes
“interests for the period commencing from 12 months prior to the councillor being elected”,
but there is no such requirement in the proposed new code. What is the logic behind that difference? Why is it reasonable to require councillors to register interests for the period prior to their election but not to require, for example, someone who is appointed to a health board, who might over the previous 12 months have been working in a field that bore some relation to their duties as a board member, to register such an interest?
I think that the difference was arrived at because of the formality of the decision making process in which a councillor will be involved. Councillors are involved in making judgments about certain statutory functions. Also, individuals who are elected to local authorities are subjected to much greater public scrutiny in relation to activities in which they are involved in public life—I think that that applies to members of the Parliament, too. Therefore, having a period that is subject to further disclosure strikes me as appropriate, given the democratic mandate that elected members have.
Thank you.
There are no more questions, so we move on to item 4, which is formal consideration of the motion to recommend approval of the draft model code of conduct, on which we have just taken oral evidence. I ask the cabinet secretary to move motion S4M-08382.
Motion moved,
That the Local Government and Regeneration Committee recommends that the Model Code of Conduct for Members of Devolved Public Bodies (SG 2013/250) be approved.—[John Swinney.]
Motion agreed to.
11:51
Meeting continued in private until 12:31.