Official Report 519KB pdf
Model Code of Conduct for Members of Devolved Public Bodies
Under item 3 the committee will take evidence on subordinate legislation. I welcome Tom Arthur, Minister for Public Finance, Planning and Community Wealth, and his officials John St Clair and Ian Thomson, who join us remotely. I invite the minister to make an opening statement.
Good morning. It is a pleasure to appear before a committee of which I have many fond memories as a member in the previous session. I congratulate all members on their appointment and I belatedly congratulate you, convener, on your appointment.
At the outset, I offer my sincere thanks to all who have contributed to the process of producing the revised model code. In particular, I thank key stakeholders, including board chairs, and the Standards Commission for Scotland for its input and continuing engagement in the process. I also offer my sincere thanks to the Scottish Government officials and to all those who participated in the consultation that we ran over the autumn and winter of last year and early into this year.
The Scottish Parliament demonstrated its commitment to the promotion of high standards in public life by passing the Ethical Standards in Public Life etc (Scotland) Act 2000 as one of its earliest statutes. The act introduced a new ethical framework under which the Scottish ministers were required to issue a code of conduct for councillors and a model code of conduct for members of devolved public bodies, as listed in schedule 3 to the act, as amended. Each listed public body is required to develop an individual code based on the model code. Both codes of conduct are based on nine key principles: duty, selflessness, integrity, objectivity, accountability and stewardship, openness, honesty, leadership and respect. Responsibility for ethical standards policy, including the model code and the councillors’ code, rests with the Scottish Government. However, the independent offices of the Standards Commission for Scotland and the Commissioner for Ethical Standards in Public Life in Scotland have responsibility for the day-to-day operation of the codes.
The initial codes for councillors and members were approved by the Scottish Parliament in December 2001 and brought into effect on 1 May 2003, and the current version of the members’ code was amended in 2014. The Scottish Government recognised that a number of new developments had occurred since the model code’s last review in 2014 and that it was important to take account of those changes; it also wanted to provide users with an opportunity to contribute to the revised model code.
The Scottish Government‘s public consultation on the revised code ran for 16 weeks from October 2020 through to the beginning of February 2021, and an analysis report of the responses has been published and is available on the Scottish Government website. The consultation sought views on the amendments to the existing model code with the aim of establishing whether the proposed revisions made it clearer and easier to understand, raised awareness of the use of social media, changed the rules on gifts and hospitality and highlighted that bullying would not be tolerated and, importantly, whether the proposals were proportionate and appropriate for inclusion in the model code. We also welcomed comments on any aspects of the model code.
A total of 45 responses were received from a wide range of stakeholders, and the overall view was very positive. Respondents agreed that the model code required to be updated and that the proposed changes achieved the aim of making things clearer, took account of issues such as the use of social media and highlighted that bullying and harassment would not be tolerated. We have carefully considered the responses to the consultation and the proposed changes have been made to strengthen the model code and provide clearer information for its users.
It is important to emphasise that the ethical basis of the revised model code remains unchanged from that of the original code. Although we want to make the code easier to understand, we also want to take this opportunity to take account of developments in our society such as the role of social media and to strengthen things by reinforcing the importance of behaving in a respectful manner and making it clear that bullying and harassment are completely unacceptable and should not be tolerated. There is greater emphasis on the requirement for individual board members to take personal ownership of their behaviour by ensuring that they comply with their board’s code of conduct and to take steps personally to understand their role and compliance. We feel that the proposed changes to the model code will help make it more practical and easier for users to comply with in their everyday roles.
Finally, I want to highlight that, where appropriate, the councillors’ code, which is currently being considered by the Parliament, and the model code have been aligned. I welcome the opportunity to answer the committee’s questions on the revised model code of conduct for members of devolved public bodies.
Thank you for that, minister. Before I come to the first set of questions, I remind everyone that the microphones are operated by broadcasting, so we do not need to press any buttons or ensure that anything is on. It will all be taken care of. I will also indicate who is going to speak to ensure that broadcasting knows who is next.
Once again, I thank Tom Arthur for his short introductory remarks. A couple of questions arise from them, and I will take them in reverse order from the way in which they had originally been laid out.
The code has been around for a while. Why was it felt that amendments were needed at this stage and not earlier or later? Does this form part of a rolling programme of regular reviews of the code?
You have asked an important question. As I touched on in my introductory remarks, the original code was introduced—[Inaudible.]—and was revised in 2014. I want to highlight two points that informed our decision to progress the revision at this juncture, the first of which is simply the amount of time that has passed since 2014. I mentioned the issues of social media and bullying and harassment several times in my opening remarks, and I know that across the public and private sectors and, indeed, wider society there have been significant reflections on codes of conduct and whether they are fit for purpose. Indeed, the committee considered the issue in great detail in the previous parliamentary session. In short, we wanted to reflect the changes that have happened in society over the past seven years and felt that this was an appropriate juncture at which to consider and revise the code.
As I said in my opening remarks, the councillors’ code is also being revised. Both codes were introduced at a similar time, close to the beginning of the devolution era. Because the councillors’ code was being revised, it was deemed appropriate that the two codes should continue to be aligned where appropriate.
Those two factors have informed the decision to carry out the revision now. Of course, in future, we will always take account of developments and changes. That will inform future decisions on when it would be appropriate to revise the code.
Is it fair to say then that, rather than it being the case that the code needs to be revised every five years, there needs to be sensitivity to the changes in the social understanding of behaviour and attitudes so that that can be fed into the code when appropriate?
Yes. That is a fair summary, convener. However, you make an interesting point about whether a process should be set out in advance for an automatic review after a particular length of time elapses, and I am happy to reflect on that.
The code relates specifically to members of public bodies. You talked about the code of conduct for councillors. I will express my point as a concern. Surely there is no need to have identical codes for councillors and members of public bodies because the institutions and responsibilities are different. Are you confident that the code for members of public bodies reflects the unique nature of the bodies on which they serve and to which they answer, rather than just repeating the councillors’ code and retitling it?
That is an important point. I draw the committee’s attention to the fact that the code for members of public bodies is a model code and it will be up to the individual bodies that are listed in schedule 3 to the 2000 act to apply it as appropriate to their own organisations. Obviously, the codes that they seek to apply will have to be agreed to by the Scottish ministers. However, the need for a degree of flexibility to recognise not only the distinction between public bodies and local authorities but the variety of public bodies that exist is the reason why we have a model code as opposed to prescribing one overarching code to which each public body must adhere.
I hope that that reassures you on the point that you raised, convener.
It very much does, Tom. It is reassuring that every public body needs to consider the matter and base its code on the model code. I assume that, if there were a drift away from the model code, you would expect an explanation of why an item had been omitted.
Yes, we clearly would. The Standards Commission for Scotland provides support and guidance as well. It will be for individual boards to respond to the model code, should the Parliament agree to it. They will go through a process and submit their revised codes to ministers for consideration. Ultimately, the ones that are best placed to interpret the model code as it is applicable to the organisation are the respective organisations themselves.
Tess White has a few questions. If they are not for you to answer, Tom, please call on John St Clair or Ian Thomson as necessary.
Minister, the Scottish Government conducted a consultation on revising the model code. To what extent did respondents support your proposed changes and how were their views taken into account in the revised code?
We conducted a consultation from October last year to February of this year and had 45 respondents. As one would imagine, they expressed a variety of views but, overall, there was broad support for what we are trying to achieve with the revised model code.
As I touched on my opening remarks, there was support for the removal of information that was not necessarily applicable or required and, reflecting the changing mores of the past seven years, for the strengthened guidance on social media, bullying and harassment and collective responsibility.
Another key area where broad support emerged in the consultation was the adoption of a first-person narrative throughout the code. That will strengthen the sense of responsibility that individual members of boards have to understand the code and adhere to it.
I am happy to bring in Ian Thomson if he wants to make any other points. I want to ensure that I am giving the committee the fullest answers possible.
09:15
Minister, you have not really answered my question. To what extent did the respondents support your proposed changes and how were their views taken into account in the revised code?
I apologise to Ms White if I did not answer the question. The revised code received broad support. The particular issues that were raised, which are available in the consultation document, were considered and were incorporated by tightening the language in the code. If possible, I will bring in Ian Thomson to expand on that and address the points that you raise.
Please do.
I will explain. There was a strong sense that the revised model code is clear, simple and easy to understand compared to the current model code. Many respondents felt that the changes that are being made to the model code make it more helpful, practical and easy to apply to their everyday roles. We published the consultation responses, so they are on the public record.
I will look at those offline. Section 6 talks about inappropriate behaviour, but that can be subjective. Who decides what inappropriate behaviour is?
Are you referring to section 6?
Yes; it is on the treatment of others.
I want to make sure that I am referring to the appropriate part of the model code when I respond. Section 3 is on respect and courtesy. Is that the area that you refer to?
It is section 3.
It is under use of social media, conduct in the chamber and the committee and treatment of others.
Let us pause for a moment. I think that you might be looking at the wrong part of the wrong document. That is a different part.
I apologise. My second question is this: why has the model code been written in the first person and what impact do you expect that to have?
I apologise for the confusion; I heard you mention section 6. General conduct and respect and courtesy are under section 3 of the revised model code, which gives definitions of bullying and harassment. In relation to your point about inappropriate behaviour being subjective, it is about what the individual feels in a particular situation. That definition has been adopted more widely across a range of institutions.
In relation to your point about the first-person narrative, as I touched on in my answer to the convener, it is about strengthening the narrative that it is for individual board members to take responsibility by not only familiarising themselves with the code but ensuring that they understand the code and adhere to it, and by seeking further guidance when appropriate from the standards officer or chair of their board to ensure that they comply with the code. It is about taking ownership and personal responsibility, which is why the decision was taken to move to a first-person narrative. That was queried by some people during the consultation, but there was broad support for the move. It is about strengthening the ownership that board members are expected to take of their conduct and understanding the code.
Edward Mountain has some questions about the code. Minister, if someone on your team is better placed to answer, we are fine with hearing evidence from them.
My question relates to category 5, which is houses, land and buildings. Is paragraph 4.18 on registrable interests in houses, land and buildings compatible with or an equivalent standard to that for MSPs? Are the two the same? I am not convinced that they are. If they are not, could that lead to confusion?
Your question is quite specific, Mr Mountain. It might be appropriate for me to invite Ian Thomson to address that point.
I am unsighted on the terms of the code for MSPs, so I cannot comment on that. We have worked with the Standards Commission for Scotland and the Commissioner for Ethical Standards in Public Life in Scotland to develop the code, which is aligned with the councillors’ code of conduct. That is all the evidence that I can give on that at the moment.
Edward, do you have a comment on that?
I will try to articulate my concern more clearly. Paragraph 4.18 states:
“I have a registrable interest where I own or have any other right or interest in houses, land and buildings”.
You will be aware that MSPs do not have to register their private houses or record them in their entry in the register of members’ interests. I wonder whether that specific matter might cause confusion to people on public bodies. They might feel that they have to register their private houses, which goes beyond what MSPs are requested to do.
I take your point and I will reflect on it. The document will be complemented by guidance produced by the Standards Commission for Scotland, so there might be an opportunity to address any confusion in the guidance. That matter did not emerge to any great extent during the consultation, but I appreciate your point and I am happy to reflect on it. If there is a case to consider that, it will be for the Standards Commission for Scotland as an independent body to determine what guidance it produces. We can engage on that issue if there appears to be a need to address it, but, as I said, it did not emerge to any great extent during the consultation process.
Was it the intention to include the dwelling house?
I ask Ian Thomson to come in to reiterate the point about how the language was formulated and developed.
I understand how it was developed and that it reflects the councillors’ code of conduct. I just wonder whether the question of whether a dwelling house would be covered was considered or whether it was not thought about at the time—I do not mean that in a disrespectful way. Ian Thomson, was it intended that a dwelling house would be caught by that drafting, or was it thought about and the answer was no and it is not caught by the drafting?
No, it comes down to the board member and their requirement to declare a registrable interest. If they are required to register an interest under paragraph 4.18 in category 5, they are required to provide the public body’s standards office with the full address of the house, land or buildings. What is published on the public body’s standards office website and made publicly available is not necessarily required to be as detailed. Paragraph 4.18 has not changed since the previous code.
Therefore, the onus is placed on the individual—hence it is written in the first person—to comply with the second paragraph of category 5, which requires the registration of interests in houses, land or buildings
“which may be significant to, of relevance to, or bear upon, the work and operation”
of the public body.
That is correct.
As no other committee member has a comment on that, do you want to come back in, Edward?
I think that Bob Doris has a question, too, convener.
My only concern about this is the emphasis on declaring one’s private residence, which we MSPs do not have to do. It would be useful to remove one’s private residence from the requirement to bring things into line with what we do and to make everything equitable and fair.
The point is noted. I call Bob Doris.
You might have mopped up what I was hoping to clarify, convener, but I just want to check with the minister that this is not a general obligation to declare one’s dwelling house. One’s interest has to be significant and relevant to and bear on the operation of the public body in question. Will you put on the record that it is not a general obligation?
I suppose that the wider issue that was raised by Edward Mountain is that the requirement mirrors the obligations on councillors, not MSPs. Perhaps, then, the question that we should be asking—perhaps not today, but some other time—is about the difference between the obligations on councillors and the obligations on MSPs, rather than those on members of these boards. I would welcome your thoughts on that, minister. I also seek clarity on the point that there is no general obligation to register one’s dwelling house.
I invite Ian Thomson to respond on the technical point about the implications of the language that is used.
There is no general requirement to register a dwelling house. As set out in paragraphs 4.18 and 4.19, the onus is on board members themselves to make that judgment.
Edward Mountain has a second and more specific question.
I have a question about paragraph 4.20(b), which refers to a registrable interest
“Where, at the relevant date, the market value of any shares and securities (in any one specific company or body) that I own or have an interest in is greater than £25,000.”
Will the minister please explain where the £25,000 figure came from?
Yes. It reflects an alignment with the MSP code. I ask Ian Thomson to provide a bit more detail on that.
I echo the minister’s comment that this reflects and aligns with the MSP code. It also aligns with the requirement in the code for councillors. I have no further comment to make.
I will press you on that. You do not know where the figure came from or how it was originally calculated, but it is used in the codes for councillors and MSPs.
Yes. It is used in the 2014 code, too. I am unsighted on the nature of that value, but that is its origin.
You might not be able to answer this. Has the figure been increased since the original code was produced or has it always been £25,000?
The figure has remained the same from the previous code.
Would you like to come back on that, Edward?
I am now totally confused. It has been suggested that the figure is aligned with the MSP code, while the obligation in paragraph 4.18 that I previously asked about is not. One argument goes one way, and another goes the other way.
In any case, the £25,000 figure seems fairly arbitrary. It is a lot of money, but then £10,000 is a lot of money, as is £1,000. I do not understand where the figure has been plucked from; after all, it is not as if a £25,000 investment in the Royal Bank of Scotland, for example, would give you a controlling interest in it. As I have said, the figure seems arbitrary, and I would like some clarity on how it has been selected. Just rolling it forward from the previous code does not make it acceptable.
So you seek clarity not necessarily on why the figure appears in the code but on why it was adopted in the codes for MSPs and councillors in the first place and then reflected in this code. Tom, I am not sure whether anyone with you can answer that, but will you undertake to identify for us where the figure came from?
09:30
I am happy to take that away. Clearly, the figure was reached previously and, hence, is reflected across a number of codes, including the MSP code, which is a matter for the Parliament to decide. I am happy to seek to provide the committee with further information at a later date as to how the figure was arrived at for the previous code. However, it has clearly been generally accepted, hence its appearance across multiple codes.
That would be helpful, Tom. If you and those who answer to you are unable to ascertain why that figure has been identified, it would be interesting to hear that as well.
I thank Edward Mountain because he indicated various issues that had not been picked up on but might require a little bit more scrutiny. That is helpful.
Minister, did individuals and groups who responded to your consultation broadly support the £25,000 figure? I suppose that there has to be a figure and you will seek views on it. Were people generally content with it?
The code is a model code so, if a body thought that that value should be lower or higher, could it seek ministers’ approval to vary it?
If you do not mind, I will turn to Ian Thomson for further input on the points that you have raised, Mr Doris.
I am sorry, Mr Doris, will you repeat your question? I missed your point.
The model code was consulted on. I assume that the figure of £25,000 was in the consultation draft of the code. Were there any objections to that value being placed in it? If not, I presume that individuals felt relatively content with it. I was asking for information on that.
Secondly, this is a model code. The minister referred to the fact that it can be adapted by the various bodies, which then seek the Government’s approval. Technically, could the figure vary between different codes or is £25,000 baked into a code that all bodies apply?
I cannot recall the responses to the consultation covering that category, so I will need to provide further evidence on that. From recollection, nothing stood out on that part of the code or the subject.
You are right to point out that boards must align with the model code. I must admit that the £25,000 figure has not been tested out. It would be a judgment call about whether there would be flexibility on it, but it would probably be baked in.
Minister, in your opening statement, you explained the reasons for revising the code. Does the revised code place new responsibilities or sanctions on board members or has the exercise been aimed at increasing clarity?
The new model code does not change the sanction regime. It seeks to provide greater clarity. As I mentioned, certain elements of the 2014 revision have been removed to improve clarity. I spoke about the move to first-person narrative, and there is also updated and strengthened language concerning social media and bullying and harassment.
The revision was not about introducing new sanctions. It was about taking an opportunity to bring the code up to date to reflect societal changes and to make it more user friendly. As the consultation responses reflect, we have been able to achieve that to a large extent.
If the code is approved, what work will be involved in the roll-out and in publicity?
There will be a significant amount of work on that. The first point to stress is that, as it is a model code, it is for individual boards to take account of the revised model code, should it be agreed to by the Parliament, and to apply that to their own revised code.
The legislation creates a window of a minimum period of three months from parliamentary approval to a board being obliged to submit to ministers a revised code. We are giving boards six months to consider the revised code, should it be approved by the Parliament, to redevelop their own codes and to submit them to ministers. The idea—[Inaudible.]—board meeting—[Inaudible.]—take place. The process of boards adopting codes is for them. There will of course be direct communication from relevant Government officials to ensure that boards are aware of the need to commence work, should the code be approved by the Parliament, to update their codes to reflect the new revised model code.
Beyond that, it will be for individual boards and individual members to ensure that they are fully apprised of the details of their own codes, which will of course have to reflect the revised model code. However, although it is incumbent on individual board members to familiarise themselves with the terms of their board’s particular code, the Scottish Government’s public bodies unit provides induction workshops, in which the Standards Commission and the commissioner lead sessions. The Standards Commission can also provide guidance and ad hoc sessions as resource allows. A variety of support is available but, principally, it will be for boards to reflect on the model code, subject to the Parliament’s agreement, and within six months to submit to ministers their revised codes, taking account of the new model code. Subject to ministers’ approval, it will then be for individual board members to ensure that they are informed and updated to take ownership of their board’s revised code. I apologise for the rather convoluted way of expressing that, but I hope that it has conveyed the point.
Thank you, minister.
I have a couple of matters to raise. The one that is most relevant in respect of the code is the training that will be required for both new and existing members. How do you plan to meet that need?
I touched on some of that in my previous answer to Paul McLennan. As has been touched on by other committee members in relation to the first-person narrative, it is about personal ownership by board members.
If someone is appointed as a member of a public board, it is incumbent on that individual to familiarise themselves with their own code, which will be provided to them by their chair. I made reference to the induction workshops that the Scottish Government’s public bodies unit facilitates when someone is appointed to a public board. I also referred to the fact that those include presentations from the Standards Commission and from the commissioner. Therefore, training opportunities exist.
It is also incumbent on individual board members to take opportunities to continually update their awareness and understanding of how the code is applicable to their conduct and to the operation of their board. I appreciate that that places a heavy emphasis on individual responsibility, but I hope that that is balanced by the support that is provided for new members as they are appointed—and, of course, each board has the resource of the standards officer, to whom individual board members can turn if they seek further clarity or guidance on the code and its applicability.
To complement the codes of individual boards, guidance is provided by the Standards Commission. That is under development. Should the model code be adopted by the Parliament, guidance by the Standards Commission will be published on the website.
Although a heavy emphasis is placed on individual responsibility, a range of support is available, including at the point of induction and continually thereafter.
I am very grateful for that, minister.
In conclusion, I should clarify some matters arising from this evidence-taking session. The committee has, by 27 October, to report on the motion that has been lodged, and a number of outstanding issues have been highlighted in evidence. Minister, can you undertake to provide the committee with your response in time to allow us to attach it to our report to the chamber?
I am certainly happy to respond to the committee by then and will endeavour to give the fullest answer that I can. I am very grateful to the committee for its probing questions and scrutiny, which have exposed some areas that perhaps had not been considered before. In particular, I am sure that a number of us will want to reflect on the issues that Mr Mountain raised in his line of questioning with regard to not just the code for councillors and the model code for members of public bodies but the MSP code. I am grateful for the committee’s contribution and I am happy to write back to you ahead of the date that you have referred to.
I am grateful for that confirmation.
Before we move on to agenda item 4, I formally thank the minister and his officials, particularly Ian Thomson, for attending the meeting and giving evidence.
I request that the minister stay for agenda item 4, which is the formal part of our proceedings. I invite the minister to move motion S6M-01125.
Motion moved,
That the Standards, Procedures and Public Appointments Committee recommends that the Model Code of Conduct for Members of Devolved Public Bodies be approved.—[Tom Arthur]
Members of the committee may now speak to the motion. I call Edward Mountain. [Interruption.]
I am sorry, convener—I was gazing happily at the microphone to see whether it had been unmuted.
First, I absolutely believe that it is in the interests of all public bodies and elected individuals to comply with the highest standards of behaviour and to be open with the people who elected or appointed them, and I would never move from that position. However, I am concerned that paragraph 4.19 of the draft model code does not reflect the requirement in the MSP code; in fact, the declaration is more onerous. At the same time, the explanation for paragraph 4.20(b) was that it was put in because it complied exactly with the requirement on MSPs. There is therefore a slight mismatch in that respect.
I do not want to hold this up, convener, but I believe that it is important that members of public bodies do not have to—or are not made to think that they have to—declare their private residence as part of any declaration that they might wish to make. That should fall outwith the scope of any declaration, as is the case for MSPs. Moreover, the £25,000 figure in paragraph 4.20(b) seems to me to be extremely arbitrary, which is why I sought clarity on it.
I know that you have to consider the committee’s position, convener, given the limited time that we have before the matter has to be considered by the Parliament. As I have said, I do not wish to hold this up. However, should the matter come before Parliament before I have had sufficient answers to my questions, I reserve the opportunity to comment on the motion at that time. At the moment, I do not think that the proposal is equitable or fair to members of public bodies, and we have not had a suitable explanation of the £25,000 figure.
I just want to note on the record the position with regard to the motion, subject to the information that the minister has agreed to send us. This is not a criticism—merely a clarification—but I note that, in his evidence on the £25,000 figure, Ian Thomson drew a line not just to the MSP code of conduct but to the code of conduct for councillors.
Does any other member of the committee wish to comment? I apologise to Bob Doris—I cannot see the chat function. Does he want to say anything?
No, I am content, convener.
09:45
Minister, do you wish to make any closing remarks?
I reiterate that I am grateful to the committee for its consideration of the model code. As I indicated, I will write a response as soon as possible and certainly ahead of the date that you indicated is required. We will seek to address the points that Mr Mountain raised and provide clarity on them where possible.
The question is, that motion S6M-01125 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Doris, Bob (Glasgow Maryhill and Springburn) (SNP)
McLennan, Paul (East Lothian) (SNP)
Whitfield, Martin (South Scotland) (Lab)
Abstentions
Mountain, Edward (Highlands and Islands) (Con)
White, Tess (North East Scotland) (Con)
The result of the division is: For 3, Against 0, Abstentions 2.
Motion agreed to.
The matter now passes to the chamber. I ask members to confirm that they are content for me to sign off the committee’s report to the Parliament, which will be an essential element of that consideration.
Will that be a formal written report or will it just note the division in the committee? There might be some slight variance in nuance around the reassurances that the committee might or might not wish to seek from the minister. I am keen for that to be clarified.
It is a formal report that shows not only the vote but the evidence that we heard and the matters that are outstanding. That is why I invited the minister to respond in time for his reply to be attached to the report so that it, too, will be before the Parliament when it makes its decision.
If the committee is taking a view on the additional information that it wants from the minister and the reasons behind it, I would be keen to have a look at the report before it is issued.
Absolutely. The response from the minister will be passed round all committee members and we will be able to talk about whether we are satisfied.
So it will return to the committee and we can consider what we are reporting to the Parliament before we report. Is that correct?
Yes. We can agree by correspondence the report that will go to the Parliament. It is just that it requires a signature as well.
That is fine—as long as the committee agrees by correspondence.
Excellent. Thank you.
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