Frequently Asked Questions?
Q. Why was the Ethical Standards in Public Life framework established?
A. The Ethical Standards Act was the eighth act to be passed by the new Scottish Parliament. This demonstrated the commitment of the Scottish Ministers and the Scottish Parliament to maintaining the highest standards of conduct of those in public life.
There are a number of reasons why the Ethical Standards Act was created. It partially stems from recommendations made by the Committee on Standards in Public Life, an advisory committee to the Prime Minister, which considers standards in public life and makes recommendations on rules governing conduct, setting out arrangements which help those in public service discharge their responsibilities to the highest standards.
A second reason why the Ethical Standards Act was seen as necessary were the different requirements of Scotland after devolution had occurred. Local government was seen to merit its place in the new constitutional framework and there was a need to address the issue of standards of conduct in public life. As well, with devolution, the processes of government in Scotland became subject to increased public scrutiny and one area which was of particular concern to the public was the standards of conduct amongst those who are appointed or elected to serve the public.
Q. Why are Community Councils not included in the Ethical Standards Framework?
A. As community councils spend little or no public money, and imposing a regime of investigation and sanction might deter people from becoming a part of their community council, it was decided not to include them in the ethical standards framework. Community councils in Scotland are statutory consultees and do not make decisions.
In 2009 a voluntary Code of Conduct for community councils was published, which was derived from the Councillors' Code of Conduct and the Model Code of Conduct for non-Departmental Public Bodies in Scotland.
Q. Is the Commissioner for Ethical Standards part of the Standards Commission?
A. No. The CES is appointed by the Scottish Parliament separately from the Members of the Standards Commission for Scotland. The CES employs his own staff and the Standards Commission cannot direct the CES in how to conduct his investigations.
Q. How can I appeal a decision of the Standards Commission?
A. A local authority Councillor or a Member of a devolved public body who has been subject to sanction by the Standards Commission may appeal to the Sheriff Principal of the sheriffdom in which the relevant Council or Devolved Public Body has its principal office. An appeal may be made on the following grounds that:
- The Standards Commission's finding was based on an error of law;
- There has been procedural impropriety in the conduct of the Hearing;
- The Standards Commission has acted unreasonably in the exercise of its discretion;
- The Standards Commission finding was not supported by the facts found to be proved by the Standards Commission; or
- The sanction imposed was excessive and/or the Standards Commission acted unreasonably in the exercise of its discretion.
An appeal must be lodged within 21 days of the decision being issurd.
Q. How do I make a complaint about a Council official?
A. If you wish to complain about the conduct of a Council official, as opposed to a Councillor, you should contact the Council directly.
If the complaint is about services provided by a Council, such as maladministration or poor service, you should first complain to your Council. If they are unable to resolve it satisfactorily you should write to the Council's Chief Executive. If you are still not satisfied with the outcome of your complaint you can submit a complaint to the Scottish Public Services Ombudsman.
Any decision on appropriate action would be taken by the public body. This is because employment legislation prevents the Standards Commission from subjecting such people to a hearing and sanctions.
Q. Why was Section 7 of the Councillors' Code of Conduct included (which deals with Taking Decision on Planning Applications)?
A. Councillors must be free to fulfil their democratic representative role. However, there must be a balance set between allowing their freedom to do that and restricting their involvement to protect the human rights of individuals making planning applications. However, there have been concerns about the perceived restrictions on Councillors as a result of the terms of the Code.
In February 2014, the Scottish Government, in partnership with the Convention of Scottish Local Authorities (“CoSLA”), and the Commissioner for Ethical Standards in Public Life in Scotland (“the CES”) published Guidance on the Role of Councillors in Pre-Application Procedures (“Pre-Application Guidance”). This should be read in addition to the Guidance for Local Authorities and their Councillors, produced by the Standards Commission (“Standards Commission Guidance”).
Taking into account the fact that all relevant Councillors must be able to contribute to the setting of strategy and policy for the Council as a whole, the requirements of the Code do not limit Councillors from debating matters of strategy or policy, even though they may provide a framework within which individual applications will in due course be decided. It also sets out that Councillors involved in any final decision must still be able to raise issues brought to their attention with planning officers, and can make known their "provisional views" in pre-application discussions where the Authority may be minded to consider granting planning permission in respect of a proposal for a major development.
When it comes to individual planning applications it is right and proper for Councillors to be able to hear the concerns of their constituents and lobbyists, and all Councillors can, therefore, sit in on public debates and assist constituents in bringing concerns to the attention of planning officers, provided they follow the Council’s own procedures for doing so. Councillors not involved in the decision making process are free to comment on, oppose or support applications and may, where the Council’s own procedures allow, make representations on behalf of those applications to the planning committee, provided they subsequently withdraw from the meeting room until discussion and voting on the application has concluded. They must not attempt to lobby or otherwise force Councillors with responsibility for decision making, to take a particular view on the application.
For those Councillors involved in the final planning application decision, there are restrictions in place to limit their activities. These restrictions are based on established principles flowing from the implementation of the European Convention on Human Rights into Scots Law through the Human Rights Act 1998 and the Scotland Act 1998. Applicants have a fundamental human right to have their application heard by an impartial tribunal, and Section 7 of the Councillors' Code of Conduct is designed to ensure councillors making planning decision are, and are seen to be, impartial.
Q. Why are the Codes of Conduct different?
A. Having a coherent unitary system of standards, with consistent shared principles and values across all public service sectors, simplified the regime. This makes codes more accessible to public understanding and leads to greater public confidence in those who deliver their services. As well, Members of Public Bodies are often Councillors, or may have appointments to more than one Body. Since part of the move to broaden the role of Councillors and to encourage joined-up delivery involves Councillors sitting on boards of Public Bodies, having a single set of principles and standards makes compliance with the Codes of Conduct more straightforward.
However, the variety of activities undertaken across the Public Body sectors meant that a single identical Code may have proved problematic for Members of certain Bodies. There are few homogenous sectors where a single Code could apply as appropriately as across Local Authorities. Allowing each body to determine its own Code, though, would have led to difficulties in practice. Therefore, the Model Code of Conduct was created upon which Public Bodies must base their Code of Conduct with slight differences allowed in order to suit their particular circumstances. Each Public Body's Code of Conduct must have regard to the Model Code of Conduct and be approved by the Scottish Ministers.
Who is The Public Standards Commissioner now?
The Public Services Reform (Commissioner for Ethical Standards in Public Life in Scotland etc.) Order 2013 (SSI 2013/197)
(a) abolished the post of Public Standards Commissioner for Scotland
(b) abolished the post of Public Appointments Commissioner for Scotland
(c) dissolved the Commission for Ethical Standards in Public Life in Scotland and
(d) created the post of Commissioner for Ethical Standards in Public Life in Scotland
Further information about the role and remit of the CES can be viewed at http://www.ethicalstandards.org.uk/