The Scottish Government is consulting on amendment of the Councillors’ Code of Conduct (“the Code”) so that councillors who represent their Councils on the board of an external organisation would not be prevented, solely because of their membership of that body, from participating in Council discussions on certain matters in which that body has an interest.

The Code

The Code applies to all 1,223 councillors across Scotland’s 32 local authority areas, and sets out the standards which councillors must adhere to in the course of their Council duties. The genesis of the Code was the Ethical Standards in Public Life etc (Scotland) Act 2000, one of the early post-devolution Acts of the Scottish Parliament. Compliance with the Code is overseen – and, where necessary, enforced – ultimately by the Standards Commission for Scotland.

Conflicts of interest

Section 5 of the Code as currently drafted requires a councillor to declare an interest in a matter, and withdraw from discussion or voting by their Council on that matter, where a member of the public who knew about that interest “would reasonably regard the interest as so significant that it is likely to prejudice the councillor’s discussion or decision-making”. This “objective test” must be applied by councillors both in relation to financial and non-financial interests. However, there is no such requirement for the councillor to withdraw if a general or specific exclusion applies, or if the interest is sufficiently remote or insignificant.

At present, among the specific exclusions are any interests which a councillor may have as a member or director of an external body to which they have been appointed or nominated (or where such an appointment is approved) by their local authority. But this exclusion does not apply in respect of any matters which concern the external body and are “quasi-judicial or regulatory” in nature, such as where the organisation is applying to the local authority for a licence, approval or consent, or is objecting to such a licence, approval or consent.

The Problem

The Consultation refers to issues raised by Nestrans, a Regional Transport Partnership (RTP) set up under the Transport (Scotland) Act 2005 to co-ordinate transport planning and delivery across the Aberdeen City and Aberdeenshire areas. Dispensation was sought from the Standards Commission to allow members of Nestrans who are councillors to also participate in their Council’s discussions and decision-making on, for example, major planning matters which could affect transport in the area and in which Nestrans might necessarily have a significant role to play. Consideration of such matters by a Council would, however, fall into the “quasi-judicial or regulatory” sphere in terms of the Code of Conduct and thus would not be excluded from the conflict of interest provisions. Accordingly, the Standards Commission did not grant dispensation, deciding that a councillor’s membership of Nestrans would amount to a declarable conflict of interest – prohibiting their participation in the Council’s consideration of “quasi-judicial or regulatory” matters involving Nestrans – which could not be overcome even by the councillor withdrawing from any discussions of such matters by Nestrans.

RTPs might then wonder whether this could adversely impact on their ability as an organisation to influence Council decisions on, for instance, major planning applications which affect transport. Questioning the desirability of appointing councillor members (or having them appointed automatically) could also raise issues regarding performance of statutory functions by RTPs and similar entities; it is a legal requirement for certain bodies to have both councillor and non-councillor members on their boards.

The Solution?

A potential solution outlined in the Consultation is to amend the Code by extending the specific exclusion to encompass quasi-judicial or regulatory matters in which an RTP has an interest, and allowing such councillors to take part in their Council’s discussions and votes on these matters. The Scottish Government is also seeking views on whether the exclusion should extend to councillor membership of bodies other than RTPs, where the councillor had not had any prior involvement in meetings or decisions of the public body regarding the relevant matters.

In any event, there would of course still be a need for councillors in such situations to declare their interest as a member of the relevant body. On this point the Code itself emphasises that public confidence in a local authority “is damaged by perception that a Council’s decisions are substantially influenced by factors other than the public interest.” Ultimately, as Alexander the Great (allegedly) put it, we do well to remember that “upon the conduct of each depends the fate of all.”

The Scottish Government’s Consultation on possible amendment of the Councillors’ Code of Conduct closes on Monday. It can be accessed at http://www.gov.scot/Publications/2016/12/5065, with RTPs and councillors alike no doubt anticipating the outcome with interest.