The Standards Commission has proposed a new Code of Conduct for Councillors (“the new code”) which has been laid before the Scottish Parliament for approval. If approved, the new code will make changes to the provisions in the current code, Sections 5 and 7, which deal with declarations of interest in connection with quasi-judicial matters. The proposed changes will permit councillors who are appointed to Regional Transport Partnerships (RTP) to participate in discussions and decision making processes in which the RTP has an interest, including those which are of a quasi-judicial or regulatory nature.

Background to the proposed changes: The Consultation

The new code incorporates the changes proposed in the Scottish Government’s consultation paper: ‘The Councillors’ Code of Conduct on possible amendments to current provisions on conflicts of interest’ The consultation ran from December 2016 to March 2017 with the Analysis of Consultation Responses published in June 2017.

The consultation sought views on whether changes should be made to Sections 5 and 7 of the current Code of Conduct for Councillors (“the Code”), which deal with conflicts of interest and decisions in relation to quasi-judicial and regulatory matters. The Consultation was initiated in response to a specific issue in relation to councillors acting as members of outside bodies, in particular their membership of Regional Transport Partnerships (RTPs). RTPs are independent corporate bodies established under the Transport (Scotland) Act 2005 and provide a co-ordinated approach to the planning and delivery of transport services across several local authority areas.

The specific issue addressed in the consultation paper was that, as a result of Sections 5 and 7 of the Code, councillors appointed to RTPs are currently prevented from participating in council discussions or decisions on matters of a quasi-judicial or regulatory nature in which the RTP has an interest. Quasi-judicial and regulatory matters include all licensing and planning matters. They also include any matters where a council acts in an enforcement, disciplinary or adjudicatory capacity.

The provisions at Sections 5 and 7 of the Code are problematic in so far as they prevent councillors who are members of RTPs from participating in or influencing council decisions which are likely to have a significant impact on the functions of an RTP. In particular, most major planning applications will have potential transport implications however councillors who are members of an RTP will not be able to participate in the discussion or decision making process surrounding such applications. The consultation paper suggested that this restriction may dissuade councillors from agreeing to serve on RTPs and could potentially affect the ability of RTPs to effectively perform their functions or to satisfy the statutory requirements for their membership.

The Current Position: Sections 5 and 7 of the Code

Section 5 of the Code concerns declarations of interest. It requires a councillor to declare an interest in all matters which they would be considered by a member of the public to have such a significant interest in that it would prejudice their discussion or decision making on the matter (“the objective test), and to refrain from taking part in any discussion or decision making process by the council in relation to that matter. The purpose of Section 5 and the objective test is to ensure that fairness and impartiality in the decision making process is protected.

Specific Exclusions

In certain circumstances, notwithstanding that the objective test has been met, a councillor will still be permitted to participate in the discussion and decision making process in relation to a matter. This is the case where a “specific exclusion” applies. The specific exclusions are listed at Section 5.18 of the Code and include “interests which a councillor may have as member, or director of, an outside body”. The particular types of outside bodies to which the exclusion applies are listed at Section 15.18(2)(ii) parts (a) to (d) and include RTPs. In all cases where a specific exclusion applies a councillor is still required to declare a conflict of interest before participating in the discussion or decision making process.

Section 7 of the Code deals with decision making in relation to quasi-judicial and regulatory matters. Section 7.5 restricts the scope of the specific exclusion listed at Section 5.18 so that it does not apply in relation to any matter of a quasi-judicial or regulatory nature where the outside body 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 concerning such a licence, consent or approval”. The exclusion also does not extend to any matter where the outside body is the subject of a statutory order of a regulatory nature which has been made, or is proposed to be made, by the local authority.

The combined effect of Sections 5 and 7 of the Code mean that a councillor who is a member of a RTP will not be able to participate in any discussion or decision making process in relation to any quasi-judicial or regulatory matter which would be considered to be of a material interest to the RTP.. In practice, this will prevent them from participating in the decision making process relating to any major planning application.

The Proposed Changes

The changes proposed to Section 5 of the Code introduce a new type of specific exclusion at Section 5.18(2)(iii) – interests which a councillor may have “as a member of a Regional Transport Partnership” – and limit the application of the specific exclusion at 15.18(2)(ii), in relation to public bodies, to a public body other than a RTP.

The scope of the exclusion in relation to public bodies other than a RTP remains unchanged. It does not apply in relation to any matter of a quasi-judicial or regulatory nature where the outside body 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 concerning such a licence, consent or approval; or where the outside body is the subject of a statutory order of a regulatory nature which has been made, or is proposed to be made, by the local authority.

The scope of the proposed exclusion in relation to RTPs is, however, different. It’s scope is greater in so far as a councillor will only be prevented from participating in the discussion or decision making process in relation to a matter of a quasi-judicial or regulatory nature where the RTP has made an application to a council, has formally objected to an application made by another party, or is the subject of an order made of proposed to be made by the council in relation to the matter. The distinction, therefore, is that a councillor will not be prevented from participating in relation to a quasi-judicial matter solely because it may be considered of interest to the RTP (for example, because of any potential transport implications) or the RTP has made a representation to the council in respect of the matter.

The changes proposed to Section 7 of the Act reinforce the need for councillors to have regard to ensuring the fairness and impartiality of the decision making process and, in particular, to do so in relation to matters of a quasi-judicial or regulatory nature. It refers councillors to the particular conditions which apply in relation to quasi-judicial and regulatory matters as set out at Section 5.18 of the Code.

Comments and Conclusions

The changes proposed in the new code reflect the Analysis of consultation responses in so far as they address only the specific issue identified in relation to RTPs. They do not go so far as to extend the increased scope for decision making in relation to quasi-judicial and regulatory matters to all public bodies. That proposal was considered as part of the consultation however the restricted approach adopted reflects concerns expressed by local authorities and, in particular, the Standards Commission, that increasing the scope of the exclusion in respect of all public bodies would dilute public confidence in the fairness and impartiality of the statutory decision making process. It may also be considered that implicit in the proposed changes is the suggestion that the role of RTPs is considered sufficiently distinct from that of other public bodies that the risk of any perceived impartiality or unfairness in a statutory decision making process is reduced.