3. Should the Councillors' Code of Conduct be amended?
3.1 The consultation document explained how Section 5 of the Councillors' Code of Conduct requires a councillor to declare an interest in a matter (financial or non-financial, including membership or holding office in an external public body) and not take part in discussion or decision making by their Council of that matter where a member of the public, knowing of the interest, would reasonably regard the interest as so significant that it is likely to prejudice the councillor's discussion or decision making (the "objective test").
3.2 Exemptions can apply where the councillor's membership of an external body has been approved or actually made by their local Council, however, not in the case of a quasi-judicial or regulatory matter where the external body in question is applying to the local authority for a licence, a consent or an approval, is making an objection or representation or has a material interest. Or such a licence, consent or approval is the subject of a statutory order of a regulatory nature, made, or proposed to be made, by the local authority.
3.3 This has had implications for the operation of at least one of the Regional Transport Partnerships ( RTPs)  . As part of its role, they comment on major planning matters that may affect transport in their region. The consideration of such matters by the relevant Council is a quasi-judicial matter in terms of the Councillors' Code of Conduct and thus there is an issue with councillors who are also nominated or appointed by their councils to be members of RTPs who then, according to the current Code, should not take part in their Council's discussion of or taking decisions on quasi-judicial or regulatory matters in which that body has an interest.
3.4 It has been argued this impacts the ability of partnership bodies, such as RTPs, to influence Council decisions on important issues - for instance, most major planning applications will have potential transport implications. Also it may deter councillors from membership of outside bodies which in turn could reduce the ability of such bodies to properly perform their functions. It may also be more challenging to comply with relevant statutory requirements for the membership of such bodies.
3.5 The proposal set out was to amend the Councillors' Code of Conduct so that councillors who are appointed or nominated by their councils to be members of an outside body would not be prevented from taking part in their Council's discussion of a matter of a quasi-judicial or regulatory nature in which that other body had an interest solely because of their membership of that body. Declaration of conflict of interest would still be required.
3.6 Question 1 asked respondents if they agreed or disagreed that the Councillors' Code of Conduct be amended as proposed. Question 2 then asked how the amendment should be worded (if agreed), and Question 3 asked for an explanation if a respondent disagreed with making an amendment.
Level of agreement with making an amendment to the Code in respect of RTPs
3.7 Thirty seven of the 38 respondents answered question 1, see Table 3.1, with local authority respondents ( LAs) and Regional Transport Partnerships ( RTPs) tending to be more in favour of an amendment. Individuals tended to be more mixed in their response.
Table 3.1: Responses to question one by respondent type
|Statutory Regional Transport Partnerships||5||0||1|
|Other organisations - Public Bodies (3) and 1 Local Authority licensing board||2||1||1|
3.8 Although no specific question asked for views on why there should be an amendment in respect of RTPs, respondents took the opportunity to provide relevant comments under question 6 (final comment box). One justification was that decision making was based on different information at an RTP level compared to Council meetings:
" SWestrans is concerned with matters of a strategic level and members of the Board who are councillors would not have been presented with the same level of information or detail that a councillor would consider as part of a Council's planning committee. Therefore, it is entirely reasonable that there should be an exclusion for RTPs on these matters as the decisions being asked are not the same."
3.9 Another RTP felt that not having the exclusion could lead to inacceptable levels of representation on RTP boards for important decisions where councillors had to absent themselves, particularly where the RTP included a relatively small number of local authorities. However, the same RTP did indicate that the exclusion should not apply where the RTP was making a direct application or representation or vice versa if a decision of a statutory nature was being made by the local authority directly relating to the RTP.
Suggestions on how the amendment should be worded from those who agreed
3.10 Of those who agreed that the specific exclusion should extend to cover quasi-judicial and regulatory matters, there were some slight differences in overall approach with respondents falling into one of three camps:
- Those that agreed with introducing the extended specific inclusion with no further caveats beyond ensuring that declarations of conflicts of interests were retained.
- Those that agreed, but with the caveat that councillors could only be involved in Council discussions and decision making if they had not been present at RTP meetings on the subject or been involved in preparing an RTP representation.
- Finally, there were those that stipulated that councillor participation in Council discussion and decision making depended on the level of RTP interest. In other words they could not take part if the RTP had actually made a direct application, comment or objection, but they could if the RTP had a general but not direct 'material' interest.
3.11 The five local authorities who provided comments all fell into the second camp, supporting use of similar wording to that of the Cairngorm Park National Authority ( CPNA) which has the extended exclusion but stipulates that councillors declare their interests and absent themselves where the councillor has actually participated in the RTP's decision making or attended any meeting at which the matter has been discussed. This solution was also supported by SWestrans.
3.12 South Lanarkshire Council, for example submitted the following suggestion:
"In relation to (ii), the exclusion applies to (a) Decisions on Planning Applications where the Regional Transport Partnership have submitted comments to the Council as follows:-
(a) the exclusion applies to any councillor who is also a member of the RTP where the RTP have submitted comments, representations or objections to the Council in relation to a planning application so as to enable the councillor to take part in the consideration and discussion of, and to vote upon, the determination of the planning application by the Council, subject to the following:-
i. this exclusion applies to meetings of the Council and of any committee or sub-committee of the Council and to other meetings as referred to in paragraph 5.4 of the Code to deal with the planning application."
3.13 One local authority did suggest a slight alternative of allowing a councillor to take part in discussions, thus fulfilling their representative role, but not have any involvement in decision making so ensuring decisions are impartial.
3.14 The RTPs were supportive of an amendment in relation to RTPs. They were also keen to emphasise that relevant conflicts of interest are declared and where they exist, the councillor should not attend meetings or be involved in decision making.
"Where there is a clear potential conflict of interest, the Code should make it explicit that the Councillor Member has a duty to absent themselves from the decision making process." [ SPT]
3.15 The Standards Commission suggested three potential wording options:
1) Granting a specific exclusion in respect of RTPs to apply to all quasi-judicial and regulatory matters but with the same caveats as currently apply to other bodies covered by the specific exclusion at paragraph 5.18(2)(i);
2) Granting a specific exclusion in respect of RTPs to apply to all quasi-judicial and regulatory matters but without the same caveats as currently apply to other bodies covered by the specific exclusion at paragraph 5.18(2)(i); and
3) Granting an exclusion to RTPs that is analogous to the specific exclusion covering Members of the Cairngorms National Park Authority at paragraph 5.18(2)(ii).
3.16 The Commission considers that option 2 would remove the safeguards the Code provides in respect of the conflict between the interests of different organisations and be contrary to the spirit and intent of the Code.
3.17 Option 3, adopting the CPNA approach, would mean that councillors, who were also members of an RTP, could only take part in Council discussions and decision making if they had not been involved in the decision by the RTP to make comment, representations and objections and did not attend the RTP meetings where this was discussed. The Commission thinks this would be too restrictive on councillors and could lead to:
- Councillors refusing to be on a RTP in order still be able to take part in discussion and voting on major planning applications before their Council.
- RTP quorate issues because of councillor members refraining from attending meetings of the RTPs with only external members of RTPs present.
- Potential impact on the statutory purpose of RTPs.
3.18 The Standards Commission comments that the existing quorum requirements of RTPs would have to be altered if option 3 were adopted or the RTP could delegate the making of comments, representations and objections to officers. However, they consider that:
"the role of RTP members could be diminished by such a separation and, in any event, it is arguable such a separation would be artificial (if officers were effectively only voicing what Members had determined) and would not necessarily solve the issue."
3.19 The Standards Commission supports option 1 and explains that if it was adopted, it would effectively mean councillor members of RTPs would be in the same position as members of a company established wholly to provide services to the Council (such as a leisure trust ALEO). The councillor member would have to declare his or her interest in the RTP but could still take part in the discussion and decision making at any meeting where matters relating to the RTP were discussed, provided the RTP was not making any application or objecting / making representations on one. Having declared an interest, they could also take part in the discussion and decision making on applications where the RTP has an interest, but not one that was considered to be 'material'.
3.20 The Commission does note there are still difficulties even with this option. In order to develop transport strategies, RTPs are likely to comment on the transport implications of any proposed major planning applications in the region they cover. As such, a councillor member of a RTP may find it difficult not to be perceived as pre-judging or demonstrating bias in respect of the application when it is considered by the Council. The Standards Commission accepts that this would not necessarily be the case in respect of every strategic transport strategy developed and commented on by a RTP. However, it seemed likely that most major planning proposals would have significant transport implications and it was arguable, therefore, that any comment from the RTP could be perceived as demonstrating a material interest in or being an objection / representation on an application. If so, councillor members would have to withdraw from taking part in the Council's consideration of the planning application.
Reasons for disagreeing with an amendment to the Code in respect of RTPs
3.21 Opposition to any amendment was voiced by several individuals who raised the following concerns:
- Councillors could be open to being bribed for votes. Councillors should be seen to be taking quasi-judicial or regulatory decisions without any chance of them being influenced by vested interests.
- Trust is already low in elected representatives and this change risks reducing trust further.
"Quasi-judicial and regulatory matters must be transparent and secure the confidence of the public."
- The issue should be decided case by case at a local level rather than at national level. This was partly because, even if the Code was changed, decisions can still be challenged on the basis of other arguments, eg natural justice.
- Relevant councillors that this would apply to should have their views considered but should not be part of decision making.
- An amendment would confuse the Code and make it more difficult to follow.
3.22 Opposition to the amendment was also raised by three local authorities and the Commissioner for Ethical Standards in Public Life in Scotland. The following points were made:
- The current wording of the Code is sufficient to allow Councils to carry out their regulatory functions as it stands with no problems experienced.
- The Commissioner for Ethical Standards in Public Life in Scotland made the point that councillors are not currently prevented from taking part in the consideration of planning decisions simply because they are a member of an outside body which has made an application. They highlight that Paragraph 7.6 of the Councillors' Code of Conduct states that the "requirements of this part of the Code should not limit you from discussing or debating matters of policy or strategy, even though these may provide the framework within which individual applications will in due course be decided". They go on to say that, clearly, if a councillor as a member of the outside body commented on or indicated a pre-judgemental view of an application, they may be affected by paragraph 7.3 of the Code, but membership alone of an outside body is not the issue. The Commissioner recommends that each set of circumstances needs to be looked at on its own merits to determine if a declaration and withdrawal is required.
- The suggested amendment risks undermining public trust in the impartiality of members involved in decisions of a regulatory or quasi-judicial nature (ie planning and licensing processes). One Council maintained that "Granting a licence or planning permission is quasi-judicial and affected councillors should not take part in that type of decision-making".
Email: Justine Geyer, email@example.com
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
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