Local Government, Housing and Planning Committee

Meeting date: Tuesday, January 10, 2023

Official Report 578KB pdf

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Standards Commission for Scotland Annual Report 2021-22

Under agenda item 2, we will take evidence on the Standards Commission for Scotland’s annual report for 2021-22.

We are joined by Lorna Johnston, the executive director, and Sarah Nicholson, the office manager, for the Standards Commission for Scotland. I welcome our witnesses to the meeting and invite Lorna to make a short opening statement.

As the committee will be aware, the Standards Commission was established by the Ethical Standards in Public Life etc (Scotland) Act 2000. The commission is an independent public body that is responsible for encouraging high standards of conduct in public life in Scotland. The 2000 act provides a framework under which ministers issue codes of conduct for councillors and members of public bodies. The Standards Commission’s role is to promote those codes, to issue guidance on how they should be interpreted, to adjudicate on alleged breaches and, when breaches are found, to apply sanctions.

The Commissioner for Ethical Standards in Public Life in Scotland is a separate and distinct office holder, whose responsibilities include investigating complaints that councillors and members have breached their respective codes. The commissioner sends a report to the Standards Commission on the conclusion of his investigations into complaints about councillors and members. On receipt of a report from the commissioner, the Standards Commission has three options under the 2000 act: to hold a hearing, to direct the commissioner to carry out further investigation, or to do neither—which essentially means that no further action will be taken on the complaint.

Hearings, which are conducted by a hearing panel comprised of three members of the Standards Commission, are held, usually in public, to determine whether the councillor or member concerned has breached their respective code of conduct. If a breach is found, the panel is obliged to impose a sanction, which could be censure, suspension, or, in the most serious cases, disqualification.

If, having considered a referral report from the commissioner, the Standards Commission does not consider that it is in the public interest and proportionate to hold a hearing, it will take no further action on the case. The parties to the complaint are advised and a relatively short, anonymised written decision is published on the Standards Commission’s website, outlining the reasoning and any learning points.

The Standards Commission has one full-time member of staff, which is me. As the executive director, I am the accountable officer. I am assisted by a case manager, an office manager and an administrative assistant, all of whom are part-time, with the overall staffing complement being equivalent to 3.1 full-time members of staff.

The Standards Commission has five part-time members, who are appointed by the Scottish Parliamentary Corporate Body with the agreement of the Parliament. The convener is contracted to work the equivalent of three days a month, while the remaining members work two days a month. As previously noted, members also sit on hearing panels, as and when that is required.

As the committee will have noted from our annual report, 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 we do our work. ... To pursue and develop strong relationships with our stakeholders. ... To ensure 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 participating in a working group that was established by the Government to review and revise the codes of conduct. That included analysing responses to the Government’s consultation on the proposed revised codes, and amending their provisions in light of feedback and suggestions.

Following the consultation and the issuing of the codes in December 2021, the Standards Commission produced, issued and published revised guidance and advice notes. We also produced and published standard training presentations and videos on the main changes to the codes and their key provisions. In addition, we ran various training events and workshops to help to promote awareness and understanding of the revised codes.

The Standards Commission established a good working relationship with the acting commissioner and worked with him to improve the processes for the investigation and adjudication of complaints, with a view to trying to ensure consistency in the interpretation of the codes. We also undertook a review of lessons learned from the Covid pandemic, and made various improvements to our governance and adjudication processes and arrangements.

Despite an increase in the number of reports received from the commissioner, the Standards Commission processed all of them timeously. Decisions were made, issued and published on all no-action cases within seven days of receipt of a report from the commissioner.

In the year to date, we have continued to undertake outreach work to promote the codes. That has included presenting at the Society of Local Authority Lawyers and Administrators in Scotland—SOLAR—annual conference and providing tailored training sessions to the boards of several public bodies. In October, we held our annual monitoring officers’ workshop, which was attended by monitoring officers from councils throughout Scotland. We look forward to our annual standards officers’ workshop in March.

The Standards Commission has continued to update the case examples and illustrations in its guidance, advice notes and standard presentations in light of feedback and inquiries received, and decisions made. We have also developed and published interactive e-learning modules and animated videos on specific aspects of the codes and the ethical standards framework.

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

Thanks very much, Lorna. It is very helpful to have heard that and to have it so clearly laid out. The level of participation, engagement and feedback that you seek in your work came across to me from your statement. That is very impressive.

A key objective in the commission’s strategic plan is:

“To have a positive impact on ethical standards in public life”.

I would be interested in understanding how that positive impact is measured. Can it be measured? If so, do you have a sense that standards in public life are improving? What can you say about the levels of public trust in local politicians? Has trust improved in recent years?

We do surveys to measure our impact. We did surveys of councillors and monitoring officers in 2022. We picked 2022 because we wanted to get the views of outgoing councillors on what they saw as the standards, whether the standards had deteriorated or were improving, whether their colleagues had a good understanding of the requirements of the code, and whether they had experienced or witnessed bullying or harassment. The same applied to monitoring officers to try to get the views of council officers. We did similar surveys of members of devolved public bodies and public bodies’ standards officers.

We analyse the inquiries that we receive. We get a lot of inquiries about how the codes should be interpreted and about how complaints should be made, as people quite often confuse us with the Commissioner for Ethical Standards in Public Life in Scotland. We analyse those, and we always seek feedback from our hearings. Therefore, we have various sources of information.

The responses in the surveys on whether people felt that standards have improved or not were a bit mixed. The general view was that the vast majority of councillors want to comply with the codes and are doing their best to do so. The issues that crop up most are respect, bullying and harassment—especially respect. Perhaps the issue can simply be someone losing their temper or not thinking things through.

However, we have certainly noticed, in the past five years or so, that there have been far fewer inadvertent breaches of the codes of conduct, such as failures to register interests within the time limit—the month that a person gets to register a new interest, whatever that is. Perhaps that demonstrates that there is a greater understanding of the codes. The breaches that we see now tend to be much more about behaviour, such as bullying and harassment, rather than failures to declare interests, people trying to take advantage of their position, or anything to do with gifts and hospitality.

Following on from what you said about the survey that you did in 2022 with outgoing councillors, I would be interested to hear what work you have done since May and the local elections to ensure that new councillors are familiar with their code of conduct. You also mentioned in your opening statement that you have done a bit of work on training and creating e-learning modules.

We were keen to get our updated advice and guidance out at the same time as the codes when they were issued in 2021, which we did. That meant that they were all in place in time for the new councillors coming in after the election. We also put in place the standard training presentation. We knew that we would not be able to get around all 32 councils, but that meant that monitoring officers and other council staff could use our videos and standard PowerPoint presentations on the revised code and the key changes. We were trying to put in place materials that they could use. New councillors get a lot of information thrown at them at the beginning, so we thought that putting those in place would give councils the chance to decide when the best time to do that induction was.

We see our guidance and advice notes as moving documents, because we want them to be as fit for purpose as possible. We update them in light of scenarios that we are told about by officers or councillors. When we get inquiries, we update our case examples and scenarios in those documents to make sure that they are as relevant as possible.

As I said, we have been working on e-learning modules. We have two in place, and we hope to publish another two by the end of this financial year. One is on the applicability of the code and when it applies, and the other is on identifying and managing conflicts of interest. Those are two topics that we think it would help for councillors to work their way through. We hope that the interactive e-learning module helps them to do that.

That is brilliant. It is good to hear that you are aware that when councillors are first elected they are overwhelmed by information, and that you are giving flexibility on when councils can share that information and say, “This is something that is important for you to pay attention to.”

Yes; some of the feedback that we got in surveys was that some of our advice notes and guidance in the past have been unwieldy. They are Word documents, but for some people that is not the best way of learning, so we are trying to improve that by making all our guidance and advice notes more accessible and having them in different formats. We want to make them as fit for purpose as we can.

We have done quite a bit of work on removing barriers to elected office. You talk about what happens once somebody is elected, but Word documents and written text could be another barrier or limitation to bringing in more diverse people.

Yes—especially if documents include a lot of jargon and are not in as plain English as possible. We are working on that.

Indeed. I bring in Willie Coffey, who has some questions.

Good morning. I want to ask a bit more about sanctions and the sanctions process. You have partly answered one of my questions, and you have said that the available sanctions are suspensions, censure and disqualification. Will you tell us a wee bit more about how that works and whether there is a process through which a councillor might find themselves travelling if repeat offences are found by the commission?

We have a policy on the application of sanctions that outlines all the factors that a hearing panel will take into consideration when deciding on the sanction to be imposed. That has aggravating and mitigating factors in it—for example, an aggravating factor would be if a councillor has been before us and a breach has been found about them on a similar issue in, say, the past five years. A mitigating factor might be if it was a one-off incident and they had apologised straight afterwards or if it appeared to be inadvertent, whereas an aggravating factor might be if it was deliberate, serious and over a long period of time.

I should have said that the hearing panel is obliged under the 2000 act to impose a sanction if it finds a breach, so it will consider all those factors. The responding councillor or member has an opportunity to respond at a hearing. Once a breach is found, the panel will come back and announce its breach decision and give brief reasons as to why it has found a breach.

The panel will then invite the respondent, councillor or member to make comments in mitigation. Quite often, that person will explain, for example, what other work they do and their commitment to public life, and that will be taken into consideration. They will perhaps use the opportunity as a chance to apologise or explain that the impact of the breach was fairly limited, and the panel will take that into consideration in making its decision on sanction.

09:45  

There is no sense of the degree of sanction. For example, the first time that an offence is recorded, it could, depending on its nature, immediately be dealt with through any of the three types of sanction, could it not?

Yes, it could be. For a first-time offence, a sanction would be very unlikely to involve something like disqualification unless the offence had been very serious and prolonged. If it had involved bullying and harassment over a really long period and the person in question had shown no insight, I guess that that would be a possibility, but it would depend on the facts and circumstances of each case.

Is there a process by which a councillor can appeal against your decision? In your experience, how successful or otherwise have such appeals been?

The 2000 act gives councillors an opportunity to appeal against a decision of breach, and they can also appeal against a sanction if it involves suspension or disqualification.

For as long as I have been in post—well, it does not really matter how long I have been in post; throughout the Standards Commission’s whole existence, there has been only one successful appeal in the same case. It ended up at the Court of Session. The sheriff principal found in our favour, but the court overturned that decision.

That case involved a councillor from Renfrewshire who was disqualified for a period of 16 months. He had been before the Standards Commission twice before for similar breaches. The Court of Session upheld the disqualification and agreed with the Standards Commission that it should not have been a brief disqualification. The reason why the court shortened the disqualification period was that it felt that the hearing panel had not taken sufficient account of the timing of the election in its written decision. That has been the only such case.

Do you find that the sanctions that are available to you are pretty much adequate to cover the kinds of behaviours that you have observed over the years? Are they sufficient?

I think so. Standards Commission members have certainly had discussions on that in the past couple of years, and we hope that discussions with the commissioner about it will be in our business plan for next year—in fact, we will put it in our business plan. We want to look at the possibility of amending the legislation to give us the opportunity to issue warning letters in cases that are slightly less serious—for example, where the breach has been admitted and the evidence is not in dispute. Rather than going to a hearing, we could say, “Do you accept this breach?” by letter or other correspondence. If it is accepted, some kind of warning could go out that would go on the record, or something like that.

We have not looked at that issue in any great detail, but it is the only one that we feel that we need to address. Sometimes a hearing is not the best approach, but on the other hand we do not want to take no action, so we might need something that is slightly between those two options.

Do you get many repeat offences? What are the numbers like in that regard?

Actually, no, we do not. There are very few. During the time that I have been in post, we have had a couple of repeat respondents before us, but the breaches have involved different aspects of the code. For example, the first may be about a failure to register, and the second might be a respect breach. Repeat offences are actually quite rare.

I bring in Marie McNair, who joins us online.

Good morning, panel, and happy new year. I will ask about how the standards and complaints system in Scotland compares with the systems in other parts of the UK and in countries around the world. Which systems are examples of best practice, and what can Scotland learn from them?

There is no comparable system in England, where local authorities take charge of their own disciplinary issues. We have analogous bodies in Wales, Northern Ireland and the Republic of Ireland, and we have quite a lot of contact with them—especially the one in Northern Ireland. We share experiences with them and discuss matters such as the extent to which freedom of expression might apply in certain cases. We had a lot of contact with those bodies during the pandemic, when we held online hearings, to learn about their experiences and share ours. I am not sure what systems are in place more widely, across the world.

What impact has the growth of social media had on the standards of public life? The committee has heard that toxic online behaviour can be a barrier to people considering standing for local election. What are the commission’s insights in that area? Did the move to online council and committee meetings during the Covid-19 pandemic have any impact on conduct and behaviour?

That was one of the questions that we asked in our survey about whether behaviours had improved or deteriorated during the Covid pandemic, particularly during online meetings, and to be honest, responses were very mixed. Some councillors and monitoring officers felt that behaviours had improved and some felt that they had deteriorated, so I guess that it differs from council to council. We produced an advice note on conduct in online hearings to try and help improve behaviours, because we saw that there may be a gap in that area.

I am sure that the commissioner will say more about this, but we are getting more complaints about problematic behaviours on social media, and that is a barrier to representation. Councillors and other people in public life often face abuse on social media, and that is difficult and completely unacceptable, but it sometimes causes those people to react, and in return they might do something that is disrespectful, offensive or that could be seen as bullying and harassment. At other times, it is a case of political point scoring that goes beyond what might be considered acceptable and into the realms of a breach of the code of conduct. We have been doing a lot of work to educate people on that. We try to show councillors and members of public bodies where the line is, explain to them that we want them to lead by example and tell them that if they do not want to face abuse they also need to lead by example in what they post.

Problematic behaviour online is a barrier to representation. Anecdotally, from our inquiries and surveys, we hear that women councillors in particular sometimes face bullying and harassment on social media and from colleagues, and we are aiming to improve those standards.

I want to talk about the directions that were issued to the ethical standards commissioner during 2021, to get a bit of context about that and about what the impact has been since then. We understand that those directions are to be in place for a further two years. Can you explain why there continues to be a need for those directions and whether you envisage ending the arrangements at the end of that period?

In July 2020, a direction on the progress of investigations was issued to the then commissioner. That was issued because the standards commission was not getting any information, so we did not know how quickly cases were being progressed, if there were any delays or whether parties to the complaints were being updated. That direction was issued to give us the comfort that cases were being progressed without undue delay and that parties were being updated.

We issued the outcome direction in November 2020, and that direction required the commissioner to send all reports and investigations to us for us to make the final decision. That was issued because there was a lack of engagement with the former commissioner and we were told by a number of parties that a vast majority of complaints were being rejected at admissibility without an investigation taking place, or in cases where a very limited investigation was undertaken.

We wanted to make sure that complaints were being investigated and that they were coming to us to make the final decision. Both of those directions expired last year, so we consulted with the commissioner and decided to extend the progress of investigations direction for another two years. We have extended the outcome direction for three months; we are waiting to see whether the committee also—

Can you clarify what dates will those be? You said two years and three months. What exact dates are those?

I think that the outcome direction expires at the end of February, but we are looking to extend it again. The reason for that is not because we have any concerns about the acting commissioner and his office, but because we feel that it is good to have a really clear separation of functions between the two organisations, with one doing investigation and one doing adjudication.

We feel that having a body—the Standards Commission—doing a review of all cases means that there is an independent review of the decisions that are made. It also means that, because we can hold hearings on cases in which we take evidence under oath or on affirmation, there is a kind of public airing. If evidence is in dispute or there are complicated issues—for example about the application of the right to freedom of expression—they can be discussed fully out in the open at a hearing. We also publish our decisions, so councillors, officials and members of the public can see what the threshold for a potential breach is.

There are a number of reasons why we think that it is right for us to carry on doing that. Obviously, we are interested in hearing the committee’s views on that as well.

The next question, which is an extension of that, is about the governance and accountability arrangements between the Standards Commission, the ethical standards commission and also the Scottish Parliamentary Corporate Body. Are those arrangements adequate given the issues that have been faced over the past two years? Are there any lessons to be learned on that in terms of the wider relationships?

We have certainly not had any difficulties with the SPCB. It has been very supportive of us, and we have quite a lot of contact with it.

Since the section 22 report that raised issues on the ethical standards commissioner was issued by Audit Scotland, we have put more a more formal arrangement in place with officer-holder services to have governance-related updates; I think that we are doing that twice a year now. However, we have not experienced any difficulties.

Good morning, panel. Lorna Johnston, you mentioned at the beginning that you have 3.1 FTE of staff to help in the commission’s role. I know that there is a significant backlog for the ethical standards commissioner and the commission. Do you believe that you have adequate budget and resources to fulfil your role in all of this?

Just to be clear, we do not have a backlog.

No—I am saying that the ethical standards commission does. Do you agree that you have the right budget to adequately resource your work?

We do. We got a fourth member of staff. A couple of years ago, when the previous business manager retired, we changed our structure a bit. We had another look at all that and at our resourcing, and brought in a case manager—at that stage, part-time—to help with the cases. We have also rejigged a lot of the way that we work with regard to members’ time, so that we are able to absorb those cases and look at those decisions when the extra reports come in from the ethical standards commission. We are confident that we have enough resources at the moment.

Perfect. Thank you.

To continue with the budget question, do you think that the ethical standards commission has enough budget and resourcing?

My understanding is that it is recruiting four staff at the moment. When those staff are in place, it will, I hope, clear the backlog that the commission has at the investigations stage.

The acting commissioner did a lot of work piecing together the business case, so I am sure that it will get those resources in place. However, with the best will in the world, it takes a while for staff to be trained and inducted. With investigations, the more experience you have, the more understanding you get of certain cases, so you get faster and faster. For that reason, I do not think that it is going to be an instant solution, but I have confidence that it will work.

10:00  

Thank you for joining us. I have two questions. I have had conversations with councillors about their inability to talk with members of the public about planning applications. Councillors find that incredibly challenging and members of the public do not like it. What is your view of potential reform of that situation? How many complaints relate to that kind of conversation, or to breaches of those rules?

We have not had many referrals on that topic. When the codes were revised, it was important to be much clearer in that regard. Councillors can have those conversations, but they cannot prejudge or show beforehand that they will support an application or an objection. They absolutely can have those conversations and hear people’s views, but they must be very careful not to prejudge the application because what the code and the legislation want them to do is to look at and consider the merits of the application on the day.

The revised code makes that all much clearer. The previous version of the code was not so clear. I hope that that will be less of an issue in future.

That is helpful. That issue has been raised with me and probably with other members. Many councillors feel that they cannot have those conversations and are concerned that, even after the revisions, there may be complaints if they try to engage with members of the public.

We have produced an assisting constituents card that councillors can hand out to their constituents as a way of managing expectations about what they can do. That card says that councillors can listen to constituents and to their views but cannot express an opinion ahead of time. We have recently produced a card for councillors who are attending community council meetings. There can be issues when they go to those meetings. Community councillors may expect the councillor to make a decision on the spot or to support the community council’s view of a planning application. We hope that having that card, which they can hand out and use as an explanation to community councillors of what they cannot do, will help them.

That is helpful. I have not seen those cards. Could you share them with the committee?

Yes.

What lessons has the commission learned during the Covid-19 pandemic? How have you changed your ways of working?

The first thing to say is that we found holding online hearings to be fairly successful. We will not go back to holding those in all cases, because we think that it is important to get out there. We hold hearings where the councillor or member is based. We think that it is important to go out there and for members of the public to be able to come and watch our hearings. We will carry on doing that, but if the evidence is not in dispute and no witnesses are to be called, we will look at whether it would be more efficient to hold a meeting online. When we hold meetings online, we live stream them on our website for people to watch. We are looking to improve that process.

We have, essentially, gone paperless. We have learned about better communication between the office and members. We have a hybrid working system and flexible working arrangements.

Thank you.

It was interesting to hear about the cards that you give out. We would like to pick up on that and promote it more. They are an important tool.

That brings us to the end of our questions. Thank you for coming to give evidence. It has been useful to hear that and your opening statement was helpful in clarifying the role of the Standards Commission and the work of the ethical standards commissioner.

There will be a brief suspension to allow the witnesses to leave.

10:04 Meeting suspended.  

10:07 On resuming—