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| A New Ethical Framework for Local Government in Scotland |
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| Chapter 3 - New Disciplinary Arrangements |
| 35 The Government believe that the new Code of Conduct for councillors will not in
isolation be enough to ensure a culture of openness and accountability. There needs to be
a mechanism for enforcing the code and providing disciplinary arrangements when
people break the rules. We see a role for enforcement within the council, perhaps through
a Standards Committee. However, to ensure public confidence that cases of misconduct
can be looked at objectively, we also envisage an enforcement arrangement external to
the council. This could take the form of a Standards Commission for Scotland.
The following paragraphs set out the Government’s thinking on these ideas, and we seek
views on the proposed system.
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| New Arrangements Within Councils for Upholding Standards |
36 It is essential to the culture of openness and accountability which we are seeking to
establish, that councils themselves will have a leading responsibility for the standards of
conduct of their councillors. Central to fulfilling this responsibility is an effective
enforcement regime within each council. Such a regime would provide for:
- the continual monitoring of the issues arising from the Code of Conduct;
- the training of councillors in matters of conduct;
- advice on the Code, in particular on such issues as the treatment of personal
interests, and on conduct matters more generally to be given to the council, its
committees and sub-committees, and to individual councillors and officers; and
- such local input as is appropriate in any arrangements for councillors to receive
dispensations to speak on, or participate in, matters in which they have interests –
see Chapter 2.
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| Councils’ Standards Committees |
| 37 Given the significance of an effective standards enforcement regime for each council,
we believe that it will be essential for a council’s responsibilities in this area to have a
central focus. We therefore envisage placing a duty on each council to establish and
maintain a Standards Committee. This Committee would have responsibility for the
enforcement regime within the Council. It would in practice be partnered at officer level
by the council’s Monitoring Officer, in particular in his or her informal role of helping
to keep up standards of conduct by advice about the law, together with encouragement
and persuasion. |
| 38 It may be appropriate for a Standards Committee to have other roles, such as a
part in any whistleblowing regime. However, given the importance of the responsibility
for standards, it would seem unlikely that it would be appropriate for a Standards
Committee to have any wider policy or service responsibilities for matters other
than conduct. |
| 39 The public will want to be sure that a Standards Committee will look at problems
fairly, rather than be open to accusations of being a clique whereby councillors protect
their own and score political points off other parties. A Standards Committee should be
politically balanced. |
| 40 The Government can see that there would be an argument for co-opting one or two
independent, well respected members of the community on to the Standards Committee,
to preserve the openness and fairness of its deliberations. These co-opted members
would need to have relevant experience but be independent both of the council concerned
and of current local politics. They would be full, voting members of the Committee.
To preserve the independent nature of their position, they could be chosen from a list
maintained by a national Standards Commission. |
| Q9. The Government would welcome views on this approach to the enforcement of high
standards of conduct in councils. What are the most appropriate roles for councils’
Standards Committees in the promotion of high standards of conduct? Should all
party groups on the Council have equal representation on the Standards Committee?
Would their work be aided by their membership including independent persons?
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| New Disciplinary Arrangements |
| 41 We see a requirement for each council to subscribe to the Code of Conduct, and to
operate effective enforcement arrangements for the promotion of standards. This would
be the centrepiece of the new framework securing the high standards of conduct in local
government which people rightly expect. There will remain, however, the need for
effective disciplinary arrangements to deal with those cases where conduct falls short of
the standards required. |
42 The Nolan Report made a number of recommendations about a new disciplinary
procedure for councils, centred on each council establishing a new standards committee;
on the basis of recommendations from this committee each council would have powers of
discipline over its members, subject to an external appeal process.
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43 We have received a range of comments on these recommendations. Some have seen
merit in arrangements which enable councils to discipline their members. Many
commentators, however, saw weaknesses in a disciplinary system which did not contain
any independent input, external to the authority, until the appeal stage. We have carefully
considered the Nolan Report’s recommendations on disciplinary procedures and the
many comments submitted to us.
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| 44 We see considerable weakness in any disciplinary framework which involves any
substantive allegation of misconduct by a councillor being handled within his or her
council. Even with independent persons on a council’s Standards Committee, there
would be risks that allegations would not be handled with that degree of objectivity and
fairness needed both to maintain public confidence and to safeguard the rights of those
facing such penalties as suspension or disqualification from office. There would also be
particular difficulties for any officer – most likely the Monitoring Officer – to investigate
effectively what are in effect allegations against one of his or her employers. There would
be risks at best of undue pressure on the officer, and at worst the danger of victimisation,
against which in practice it would be hard, if not impossible, to provide adequate
safeguards.
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| 45 Accordingly, we are minded to establish disciplinary arrangements which would be
centred on a new independent body – a “Standards Commission”. The system envisaged
for England is one of regional panels with an avenue of appeal to a national panel. Given
the size of Scotland, and the nature of the single-tier local authority system, we think
there is a better case for a single Standards Commission for Scotland. The role of the
Standards Commission would be to handle all substantive allegations that councillors
have failed to observe the Code of Conduct. The Commission would be responsible
for appointing a person to investigate the allegation, determine the substance of the allegation, and if the allegation is upheld, recommend appropriate penalties on the
councillor(s) concerned.
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| Q10. The Government would welcome comments on this analysis, and on the
proposition of centring disciplinary arrangements on a new independent Standards
Commission.
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| The Standards Commission
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46 The Standards Commission could take the following form.
- There would be a Chairman and a pool of available panel members.
- In response to a substantive allegation a panel would be established to deal with
it, consisting of the Chairman and two or three other members.
- There would be an Investigating Officer to look into the facts surrounding the
allegation and report back to the panel. This investigative function might be
carried out by the office of the local government ombudsman.
- The panel would consider the conclusions of the investigatory report. There
would need to be an opportunity for the person who was the subject of an
allegation to make representations in writing or orally. If the allegation were
upheld, the panel would recommend an appropriate penalty within the framework
of its competence (see paragraphs 60-63 below).
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| 47 In addition to its role in handling specific cases, the Standards Commission might
also have a pro-active role in issuing to councils guidance and information about best
practice on issues of conduct. Such guidance and information could draw upon the body
of decisions on cases which the Standards Commission would build up. It would be
primarily directed in the first instance to councils’ Standards Committees, assisting these
Committees in their task of promoting standards within their councils. The Commission
might also have a role in supporting the training tasks of councils’ Standards
Committees. In addition, in supporting councils’ Standards Committees, it could be
appropriate for the Commission to maintain regional lists of independent persons who
were available to be co-opted by councils into their Standards Committees.
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| Appointments to the Standards Commission
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| 48 The Standards Commission would be essentially a local government institution.
Equally, it would be essential that the Commission overall was independent of any
particular council, and could command respect both within local government and among
the public generally. The arrangements for appointments to the Commission and for its
financing would need to reflect this.
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| 49 Accordingly, appointments might involve such arrangements as candidates being
nominated by the Convention of Scottish Local Authorities and confirmed by the
Secretary of State. The core costs of the Commission might be met on a similar basis to
the present financing regime for the local government ombudsman. The costs of handling
particular cases might be met by charging fees to the council concerned analogous to the present audit arrangements. We will wish to consider these issues jointly with the
Convention of Scottish Local Authorities.
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| Q11. The Government would welcome views on the form an independent Standards
Commission might take, including arrangements for appointments and financing.
Is this approach most able to maintain public confidence? Would it be cost-effective?
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| Taking Allegations of Misconduct to the Standards Commission
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| 50 Allegations about a councillor’s failing to observe the Code of Conduct may arise in
a variety of ways. They might come from another councillor, an employee or group of
employees, or a member of the public. Allegations may also be vented publicly in the
media. Furthermore, evidence that a councillor may have breached the Code may be
obtained in the course of other investigations – by a council’s auditor, by the local
government ombudsman, or through the operation of the criminal justice system.
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51 Given the range of possible allegations, and the potential interaction with other
investigatory and enforcement regimes, including the criminal law, bringing the proposed
new Standards Commission into a case may not always be straightforward. We have in
mind a possible approach along the following lines:
- Where an auditor or the local ombudsman obtains substantive evidence that a
councillor has breached the Code of Conduct, there would be an obligation on the
auditor or ombudsman to inform the Commission’s Chairman in writing of the
possible breach, together with such evidence as may be available. This obligation
would arise as soon as practicable after the auditor or ombudsman concluded that
there was a prima facie case that the Code had been breached.
- Where a council’s Monitoring Officer received a substantive allegation that a
councillor was in breach of the Code of Conduct, he would be under an
obligation to forward the substantive allegation to the Chairman of the Standards
Commission. For the purposes of this obligation, a substantive allegation would
need to be in writing, and to include some evidence. We would not see a written,
but wholly unsubstantiated, complaint as being a substantive allegation.
- A councillor would be obliged, through the council’s Monitoring Officer, to notify
the Chairman of any criminal charges laid against him or her, or criminal
convictions imposed during their period of office; this obligation to be discharged
as soon as practicable after the charges were laid or convictions imposed.
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| 52 We would like to think further about the different nature of potential breaches of the
Code. Will some breaches be classifiable as trivial/technical, and capable of being put
right by a councillor without reference to a Standards Commission? For example, a
public statement by the councillor, recognising that there had been such a breach to be
avoided in future, might be enough. Perhaps such matters could adequately be dealt with
within a council by the council’s Standards Committee or the Monitoring Officer. Or
should the Standards Commission be obliged to investigate all substantive allegations, in
recognition that no breach of the Code should be regarded as trivial or technical?
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| Q12. The Government would welcome views on these approaches for handling
allegations against councillors. We intend in particular to consider the issue of defining what might constitute a trivial/technical breach of the Code further, and
we would welcome comments on this in particular.
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| Q13. We outlined the proposed duty of the Monitoring Officer to pass substantive
allegations of a breach of the Code to the Standards Commission. Should a
Monitoring Officer, finding in the normal course of his or her duties that there was
a prima facie case that a councillor was in breach of the Code, also be obliged to
inform the Commission? Or would this so endanger his or her position and
relationship with the Council that it would be unworkable?
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| 53 There is the issue of whether any individual (a member of the public, or a councillor
or council official) would be able to make complaints and allegations directly to the
Standards Commission. We recognise that there may be situations where an individual is
understandably unwilling to make written allegations to the council. It might remain
open in such a case for a complaint to be made to the local ombudsman or auditor, who
would be able if there were a substantive allegation, to pass the matter to the Chairman
of the Standards Commission. But this would undoubtedly slow down the process, a
process where one of the aims is to deal promptly with allegations of misconduct in the
form of breaches of the Code.
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| 54 If individuals were to have direct access to the Commission, this might have
considerable implications for its staffing. Even if there were clear guidelines that
allegations which were wholly unsubstantiated, or which lacked any credible supporting
evidence, would not be entertained, there would be a need for some filtering
process to discard the trivial and ill-founded. On balance, we consider however that
individuals must have access to what will after all be a public body set up primarily
for their protection.
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| Q14. The Government would welcome views on whether individuals should be able to
make allegations directly to the Standards Commission.
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| Standards Commission: Handling of Allegations
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| 55 As described in paragraph 46 above, any substantive allegation to the Standards
Commission that a councillor had breached his or her council’s Code would be handled
in the first instance by an Investigating Officer. The Investigating Officer would pursue
evidence through contact with the council (most likely in the first instance with the
Monitoring Officer), the councillor concerned, and other persons involved. For effective
investigation, there would need to be statutory rights to obtain information. It may be
that analogous provisions to those which apply currently to the local ombudsman, or to
councils’ auditors, would be appropriate. It may also be appropriate for the panel itself
to be able to require not only the furnishing of information to it, but also attendance in
person before it.
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| 56 The panel would determine the substance of the allegation, on the basis of the
report on the investigation of the facts and of representations received. Standards of
proof will be an important consideration. Given that it is envisaged the penalties the
Commission might recommend could involve depriving a person of the right to hold and exercise elected office, a high standard of proof will be required. However, certain
aspects of the issues likely to be before a panel could involve fine judgements where the
criminal standards of proof may not easily be applied. It is crucially important to uphold
public confidence in democratic institutions, and those who work in them must be seen
to be above reproach. Accordingly, we are currently minded that the most appropriate
basis for a panel’s decision may be the civil standard of proof – ie the balance of
probabilities.
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| 57 The person against whom the allegation is made would necessarily have an
opportunity to make representations, which could be in writing or orally. An opportunity
should be afforded to such a person to challenge the findings of the investigator, if
necessary through oral cross-examination. It may be advantageous for the panel to adopt
as far as possible investigative and non-adversarial processes – akin to Ombudsman
practices – in its working methods. However, whatever working practices it adopted, it
would be important to ensure that matters were dealt with expeditiously, fairly, and cost
effectively.
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| Q15. The Government would welcome views on the processes which a panel might adopt
when handling allegations.
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| 58 A panel would be under an obligation to deal with an allegation as expeditiously as
possible. It may be, however, that resolving certain allegations might take a considerable
time. This could happen, for example, if the alleged breach of the Code is connected
with allegations of criminal activity (which will be pursued by the police, the Procurator
Fiscal, the courts etc) or with a local ombudsman investigation or action by a council’s
auditor. In such cases, particularly where the criminal justice system is involved, it may
not be possible for the panel to conclude its responsibilities until after the other processes
have been completed. The Government, however, are concerned to ensure that there is no
loss of public confidence in a council, and in its capacity to act lawfully and to take
objective and equitable decisions. Accordingly, we see a case for the Standards
Commission being able in certain circumstances to recommend suspension of a
councillor from office until the allegation is resolved.
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59 In considering whether to recommend suspension of a councillor from office, the
Commission would have regard to:
- the extent to which public confidence would be affected by the councillor
continuing to participate in council business; and
- whether the political balance of the council, or any of its committees, was
significantly affected by the suspension.
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| Q16. The Government would welcome views on providing for the suspension of
councillors facing serious allegations of misconduct, pending investigation.
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| Appropriate Penalties
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| 60 We are minded that the Standards Commission would be able to recommend
penalties ranging from public censure, through suspension (up to a prescribed maximum period – we envisage three months may be appropriate), up to disqualification from the
office of councillor again up to a maximum period (we envisage 5 years may be
appropriate – this is the period currently under the audit surcharge regime in England
and Wales).
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| Q17. The Government would welcome views on the kind of penalties which the
Standards Commission might be empowered to recommend.
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| Enforcement
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| 61 There is a question as to whether the Standards Commission should be able only to
recommend appropriate penalties to a council, or whether the Commission itself should
be able to impose those penalties.
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| 62 Under the current framework for the investigation of maladministration, the
ombudsman can recommend a course of action to a local authority. The local authority
is not legally obliged to follow that course of action. If it decides not to, he can oblige it
to publish a statement of its reasons. If this were taken as an appropriate analogy for
how the Standards Commission might work, it would allow local authorities to assume
ownership of conduct issues, and would allow them to demonstrate to their local
community their commitment to high standards of conduct. It would also oblige local
authorities to explain themselves to their electorate if they decided not to implement the
Commission’s recommendation. The ultimate sanction would be through the ballot box.
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| 63 Alternatively, the Standards Commission could itself impose a penalty on the
councillor(s) concerned. This would provide for independent enforcement of the conduct
regime, but it would deny councils the opportunity to put their own houses in order.
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| Q18. Should the Standards Commission be able to impose penalties within a statutory
framework of competence? Or should its conclusions be in the form of
recommendations to the relevant local authority, which would have the final
decision on whether to implement them, and which would have to publish its
reasons if it did not impose the penalty recommended?
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