Section 3: General conduct
Question 4: Do you have any comments on the changes proposed for Section 3: General Conduct?
Of the 48 respondents, 18 (38%) said that they had no comments to make on the changes proposed for Section 3 of the Code. Twenty-eight (58%) respondents made comments on the changes, and two (4%) did not answer.
Several respondents commented that the revised section is now written more clearly and is well laid out.
Comments on Paragraph 3.1 welcomed the inclusion of social media and online activity. However, there was concern that the revised Paragraph 3.1 could be interpreted as applying to councillors when they are not engaged in council business, and that the code should do more to make a clear distinction between a councillor’s public and private life.
“Whilst many elected members are content with the revised wording, for others this is a cause of significant concern as it has the potential to blur the lines between a Councillor’s public and private life.”
Some respondents also felt that there should be more detail in the Code and in the Guidance to support councillors in understanding their duties in relation to social media and in particular in relation to their activities in a personal capacity.
“Use of social media is increasing all the time, partly driven by the Coronavirus restrictions. The reference to it in Paragraph 3.1 is very brief. It would be helpful to have more information, for example on being aware of the nature of the medium (e.g. whether it is a closed or public group on which posts are being made, and being aware of the membership of groups); perhaps that will be provided in formal guidance in due course.”
For Paragraph 3.2, some respondents suggested doing more to link the wording of the Code with legislation covering equality duties.
Several respondents commented on Paragraphs 3.3-3.5, which deal with bullying, harassment and sexual harassment. In general, respondents felt that the new Code was an improvement on the previous version, particularly the explicit references to harassment and sexual harassment. One respondent felt that the Code needs to go further:
“Whilst this section is an improvement on the previous code of conduct, it is still inadequate. Bullying, harassment and sexual harassment must be defined for clarity. There must be mandatory training and yearly refreshers for all councillors on all aspects of bullying, harassment and sexual harassment.
It is not good enough to leave training and updating knowledge to individual members. This section lacks any information on support for elected members who are subjected to bullying, harassment, and sexual harassment from other elected members.
With increased attention to this area, it’s disappointing that this falls way short.”
There were some suggestions for minor amendments to wording or for inclusion in the guidance. In particular, it was suggested that Paragraph 3.4 be expanded to include situations where harassment or bullying consists of deliberately or unreasonably excluding an individual from important discussions, activities, information or services. Two respondents noted that Paragraph 3.4 of the current Code included a helpful distinction between the roles of members and officers which they felt should be retained in this version for clarity.
A number of respondents commented on Paragraphs 3.6-3.8. Some respondents were concerned about the requirement that councillors should not get involved in operational matters, feeling that councillors need some level of engagement with operational issues in order to do their job properly. Several respondents also felt strongly that Paragraph 3.7 was now too restrictive, which might prevent councillors from undertaking their scrutiny role.
“The restriction on comment about performance of officers is too strict. The line between justified criticism arising from members’ scrutiny role and personalised or offensive comment must be more nuanced and acknowledge the value and requirement for constructive criticism.”
“Section 3.7 is dangerous. It insulates chief executives, executive directors and other extremely powerful officials from scrutiny and democratic oversight. A distinction should be made between the vast majority of employees, who should never be criticised by councillors, from the extremely highly salaried executive leadership team. They ought to be accountable for their actions and it is entirely reasonable that councillors be able to speak in committee or full council meetings about concerns. The very broad protection against criticism afforded by this section makes councillors extremely worried about speaking honestly when they have concerns. It has a chilling effect that renders administration, opposition and backbenchers powerless. I know of cases where council leaders and conveners have been ignored by executives, but have been unable to do much about it and unable to speak publicly about the lack of democracy. This needs to change.”
“Councillors considered that the restriction on comment about performance of officers is now too restrictive. The inclusion of reference to a ‘group of employees’ is a particular concern. They considered that the scrutiny role carried out by Councillors is vital and valuable and, as long as comments are not personalised or offensive, they should be entitled to comment on the delivery of services, which are, of course, delivered by Council employees. If they are not able to raise any concerns about staff performance (as per the draft Code) they are, in effect, unable to comment on service performance.”
“The Code draws too stark a distinction between strategic and operational and unreasonably constrains a councillor’s ability to hold Council officers to account. The Public expects their Elected Representatives to uphold standards and solve problems on their behalf…. In any transparent democracy, it is essential that those who bear responsibility for the delivery of a service can be held to account in a public forum and, where necessary, criticized for poor performance. The test the code should apply is whether that criticism has been in a respectful manner, not whether there has been criticism at all.”
Several respondents made comments in relation to Paragraphs 3.12-3.20, which relate to Gifts and Hospitality. Generally, respondents felt that the revisions to the section had added clarity and were helpful. However, some respondents felt strongly that the new Code was potentially too restrictive and might exclude some forms of hospitality which would normally be associated with a councillor’s duties, and which could reasonably be regarded as appropriate.
“The change in approach to gifts and hospitality is certainly clearer and the removal of the need to register gifts and hospitality that have been accepted will remove an administrative burden on both Councillors and officers. However, Councillors had concerns that the absolute prohibition on accepting hospitality may be too strict and may restrict their ability to participate in community life. For example, Councillors are regularly invited to join community groups at events or lunches. These groups are also likely to be in receipt of funding from the Council so it is not clear whether accepting this hospitality would be permitted (under para 3.20) or not (under 3.17).”
“We believe that this version is more restrictive, unclear and open to interpretation than the previous version.
The guidance note says that hospitality cannot be accepted ‘unless such an invitation has been made to the council and they have been asked by the council to attend on its behalf’. We are unsure what this means, or how this would be determined. Surely any invitation that a Councillor receives, by being a Councillor, is someone asking them to attend on behalf of the Council. If this is not the case, how would any invitations or events be considered? It is not the case that all hospitality is bad, a lot of Councillors sit on local groups where events are put on, or sit of boards of, for example, the SEC or EIC where attendance at events as a Board member would be expected. This section requires full explanation on how these restrictions would work…
We are keen to strike the balance between legitimate receipt of gifts and hospitality in undertaking our duties and providing a register for the public to be able to access information about what gifts and hospitality have been received. We agree that transparency in this area is important. We do not think a solution is to remove the gifts and hospitality register and not allow Councillors to attend events.”
Some respondents noted that the provisions for Councillors and MSPs in relation to gifts and hospitality are different, and should be harmonised.
“Concern also exists around the perceived inequity between expectations of Councillors compared to MSPs in terms of permitted acceptance of gifts and hospitality and further clarity is sought on this. Whilst an initial plan for a concurrent review [of the] Councillor and MSP Codes of Conduct was not achievable in practice, a commitment to revisiting potential harmonisation between the two Codes would be welcomed, particularly around gifts and hospitality, but not limited to this area.”
There was a request that the Code provide more clarity on whether or not the Council should maintain a register of gifts (Paragraphs 3.18 and 3.20). One respondent asked how the requirements in relation to gifts and hospitality could practically be monitored.
There were some comments in relation to the paragraphs on Confidentiality (Paragraphs 3.21-3.24). One respondent found the definition of confidential information very helpful. However, another had concerns about potential scenarios that might give rise to contradictions in the effects of the provisions in practice.
A small number of respondents commented on Paragraph 3.28, where councillors should advise employees of any connection they have to a matter on which they are seeking advice. One respondent suggests that more clarification is needed as to what constitutes a connection – and that perhaps a ‘declaration of interest’ might be a better approach. Another respondent commented that it is unclear what officers should do with such information or how they are expected to respond to it.