6th Report 2000
Stage 1 Report on
the Ethical Standards in Public Life etc. (Scotland) Bill
ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) BILL
SOLACE (Scotland) represents the views and interests of chief executives and senior officers in Scottish local government and has a deep and long-standing commitment to encouraging and upholding the highest standards of probity and conduct in public life.
As an association SOLACE (Scotland) welcomes the opportunity to play a part in the Scottish Executive’s policy development process and in particular, in this case, to help develop an appropriate ethical framework for all in contemporary, Scottish public life.
In this positive context however we would like to express our disappointment that the Executive has not taken this opportunity to set out a wider and more positive vision of ethics for contemporary Scotland. Without in any way detracting from the necessary and important content of the current paper we feel that the matter of ethics in public life stretches further than the scope of the current document. We in SOLACE (Scotland) feel that the Executive could have used the Ethics Bill to develop its thinking on how ethics affects policy decisions as well as individual conduct. Ethics does not stop at individual behaviour but also affects the policy decisions of associations, parties and executives. To re-emphasise, SOLACE (Scotland) welcomes the aim of the current paper but is disappointed that many other ethical questions, such as the interrelation between national, community, party and individual (career) interests, have not been seriously tackled.
In July 1998 SOLACE (Scotland) responded to the Scottish Office consultation paper "A New Ethical Framework for Local government in Scotland." In our response we welcomed "the government’s attention to the questions of honesty and transparency in Council decision-making." We also said that: "the standard principles should therefore apply not only to councillors but to all those in public life, including those who sit on quangos." We are pleased therefore that this new document is designed to create a framework that covers not only local government, but also other groups in public life.
Scope of the new ethical framework
Notwithstanding the above, SOLACE (Scotland) is extremely disappointed and perplexed by the omissions of certain sectors of public life from the scope of this Bill. Firstly, and with regard to MSPs, while Ministers claim that the standards for MSPs will be the same as in the current Bill, they argue that self-regulation is sufficient. SOLACE (Scotland) is perplexed as to why the Executive has decided to act in this manner. Ministers obviously want to see the same standards for all in public life, but by creating two different mechanisms for different types of elected politician the Executive is in danger of sending out the wrong message.
The Minister for Communities in her response to the McIntosh Report said that: "There should be 'parity of esteem' between central and local Government, with mutual trust and respect on either side." In SOLACE (Scotland) we are concerned that by creating a statutory framework for one but not the other there will at least be the perception that the partnership between central and local government is falling well short of the Minister’s desire for a "parity of esteem."
Also disappointing is the exclusion of organisations such as local enterprise companies, further education colleges, university courts and tourist boards from the terms of this Bill. SOLACE (Scotland) accepts that members of these bodies are covered by other regulations but as this argument did not hold for local government, it is unclear why it should hold for the other bodies. Indeed, these organisations do not face the same electoral test as applies to local government and arguably, therefore, require a stronger ethical code. While recognising that specific organisational contexts will require some variance in the detail of specific codes, in the interests of consistency, clarity and equality we strongly believe that all public bodies responsible for public money and public well-being should be governed by the same general standards of personal probity. It follows therefore that all public bodies should fall under the auspices of the proposed Standards Commission.
Local government code of conduct
SOLACE (Scotland) welcomes the Executive’s proposed approach to the development of the code and trusts that the consultation process will include other local government bodies as well as COSLA.
Duty of councils to assist members to uphold the code
SOLACE (Scotland) agrees that councils will want to promote a clear understanding of the code among its members. SOLACE (Scotland) welcomes this requirement and also considers that the promotion of ethics in all councils’ actions is central to good practice and sound decision-making.
Register of interests
SOLACE (Scotland) welcomes the Executive’s proposals in this regard. However, experience on this matter in councils as well as in other political chambers has shown that it is possible for a member to be inadvertently in breach of the code on declaration of interests. For this reason we would hope that the guidance is straightforward and expressed in plain English.
Given the desire for openness and transparency SOLACE (Scotland) welcomes the establishment of a national Standards Commission. However, to reiterate our earlier point, the establishment of such a body would make more sense and have greater, independent credibility if it was also responsible for overseeing standards in the Scottish Parliament and all other public bodies.
While broadly the Executive’s proposals are welcomed a serious deficiency is the omission of the right to appeal. In the proposed legislation for England, those found to have breached the code will have the right of appeal to the High Court. The denial of this right of appeal contravenes the convention of natural justice and may fall foul of the European Convention on Human rights.
SOLACE (Scotland) broadly welcomes the proposals for the staffing and funding arrangements for the Standards Commission. The paper is right to point out that there is no way to predict the demand for the Commission’s services and therefore it is right not to be prescriptive about size. SOLACE (Scotland) acknowledges the sense in seconding staff from the Executive to the Commission but suggests that secondments from local government would also make sense, give a greater impression of equity and would increase the pool of talent from which to draw.
SOLACE (Scotland) would request that the sections dealing with the Chief Investigating Officer do not appear to preclude the employment of a female officer and are therefore re-written in gender neutral language.
Sanctions and interim action
SOLACE (Scotland) welcomes the attempt to set out clear and uniform rules governing sanctions against councillors in breach of the code. However the proposals raise a number of issues.
Repeal of Section 2A
SOLACE (Scotland) fully supports the Executive’s proposal to repeal Section 2A of the Local Government Act 1986. The current legislation is unacceptable for two reasons.
Firstly, by banning schools publishing material which "promotes" homosexuality the legislation perpetuates the discourse of the unacceptability of homosexuality as a valid life choice. Secondly, by banning the teaching of the acceptability of homosexuality as a "pretended family relationship" the legislation degrades the value of homosexuality as part of the legitimate culture of a modern Scotland. In both these respects the legislation is socially exclusive and contrary to so much that the Executive and councils are trying to achieve together.
ETHICAL STANDARDS IN PUBLIC LIFE, ETC. (SCOTLAND) BILL
Public bodies have two essential characteristics in common. Firstly, irrespective of their structures they all spend public money. Secondly, irrespective of their responsibilities there is a "code of conduct" which applies to all of them in the discharge of their responsibilities; a duty to uphold the law - to act solely in the public interest - not accepting gifts or hospitality that might reasonably be thought to influence their judgement - making appointments or awarding contracts on the basis of merit and declaring any private interests relating to their public duties.
Two conclusions follow these two characteristics. Firstly, SOLACE believes there should be one Scottish public service code of conduct (with supplementary provisions to reflect the nature of individual organisations); a code which reflects these core essential standards of conduct common to everyone who serves on a public body in Scotland. Second, if there is a single code then it follows there should be one Standards Commission which deals with all aspects of conduct (investigation and adjudication) across the whole of the public service in Scotland - local government, appointed public bodies and Parliament itself. The objective must be to produce a system for regulating conduct with which the public can identify and equally importantly the public can understand. The present proposals do not, in SOLACE’s view deliver these objectives. The focus has been arguably too much on the differences between public bodies and not on the essential common characteristics highlighted above. For example, the consultation document "Standards in Public Life" says that public bodies do not form "a homogeneous group". Similarly the Minister in his evidence to your Committee said the same, "the key difference is that one group is elected by the public whereas members of non-departmental public bodies are appointed". This ignores the fundamental point that they all spend public money and the public rightly have an expectation of common standards of conduct across them all. Will the public understand if self regulation is to be denied to local government why it is acceptable for the Scottish Parliament? Similarly, will the public understand why it is that the Standards Commission can only determine the sanctions to be applied to local government councillors but it can only recommend the sanctions in relation to members of appointed public bodies? Will the public understand why any First Minister can be more objective in determining the sanction to be applied to any errant member of an appointed public body (whom he may well have appointed in the first place) but a Council is not to be trusted with doing likewise in respect of an errant councillor?
In relation to the Commission and the appointment of the Chief Investigating Officer, SOLACE notes that the Committee has accepted the explanation provided by the Minister that in order to separate investigation from adjudication and to ensure transparency the appointment of the CIO should be made by Scottish Ministers rather than the Standards Commission. To do otherwise might invite challenge under Human Rights Legislation. SOLACE also notes the Committee’s concern that such a procedure may lead to perceptions that the Chief Investigating Officer is not independent of the Executive. But our proposal would remove that perception. If the Commission was responsible for conduct across the whole of the public sector then that appointment should be shared by the Executive, by Parliament and by local government. That would remove the perception of Executive "control".
There are two other points which SOLACE would like to highlight. Firstly, there is the issue of local government’s ownership of self regulation. The consultation paper "Standards in Public Life" argues that the weaknesses of the present regulation system in relation to local government are twofold. First, that it is difficult to understand because of all the modifications which have been made and secondly, from any lack of effective sanctions or means of enforcement. There is truth in both of these but they are only part of the story. They ignore the fundamental point that Nolan made that local government is more constrained by rules governing its conduct than any other part of the public sector. Yet, despite this profusion of rules, a lack of clarity over standard of conduct persists due to the fact that the responsibility for the maintenance of standards has moved away from local government. The creation of a single Standards Commission has advantages - not least in ensuring consistency of approach and securing public confidence. But that does not deny the importance of strengthening self regulation within local government through, for example, the encouragement of the creation of Local Standards Committees. But more importantly if, as is currently being suggested, there will be separate codes of conduct for local government and relevant public bodies then SOLACE believes that the proposals in the Bill require strengthening to promote ownership within local government. The current proposals are that Scottish Ministers will issue a code of conduct for councillors, that COSLA will be invited to prepare the first draft and the code will be issued once it has been approved by resolution of the Scottish Parliament. But local government needs to be encouraged not only to produce the first draft but the final draft so that the code becomes local government’s code and is owned by local government. The Bill’s provisions should be strengthened in this regard.
The final point which SOLACE wants to touch upon is surcharge. There is a concern that the issue of surcharge has received relatively little coverage. Whilst there is general agreement that it is outdated, inappropriate and peculiar to local government, there does not seem to be any sense of purpose of removing it and replacing it with a sanction which is more appropriate and relevant. Despite the fact that the Secretary of State has made only two surcharge orders since 1975, there is the issue of whether when the Secretary of State makes such an order his action is compatible with the European Convention of Human Rights Article 6 which guarantees a person a fair and public hearing. Section 104 of the 73 Act does not provide for such a hearing.
SOLACE believes there are two possibilities here. The first is to give the Accounts Commission the power to levy the same sanction against the person they have found liable for financial misconduct as is open to the Standards Commission, i.e. suspending a councillor for a period of up to 12 months or disqualifying the person from being a councillor for up to 5 years. The alternative is that the Accounts Commission makes a recommendation on sanctions to the Standards Commission who would have then the final responsibility of deciding on the matter. In SOLACE’s view this would be more attractive in that it would provide a single tribunal who would be making decisions on breaches of ethical conduct and breaches of financial conduct. We believe, as we have pointed out earlier, this would have advantages in terms of public understanding and comprehension.
THE ETHICAL STANDARDS IN PUBLIC LIFE ETC (SCOTLAND) BILL
May I first thank the Committee for your invitation to come here today. I am here to speak mainly about the role and procedures of Glasgow City Council’s Standards Committee set up in 1998, with which I have been involved from the outset.
I should like to introduce Mr Ian Drummond, Solicitor to the Council. He has day-to-day responsibility for procedures relating to the Standards Committee.
I am a Liberal Democrat member of the City Council and have taken my turn as Chair of the Standards Committee.
Its establishment was recommended in April 1998 by the Council’s Standards Commission, which was proposed by Frank McAveety and brought together members of all five political parties represented on the Council, as well as three independent public figures. The Commission also drew up a Code of Conduct for Councillors based on Nolan’s guiding principles for those holding public office; this Code was adopted by the Council after public consultation in June 1998. In August 1998 we adopted a Code of Conduct for Council Employees which had been agreed with all the Trade Unions in the Council; this too was based on the seven Nolan principles.
The detailed work and careful consideration which the Council invested in the establishment of the Standards Committee and the preparation of the two Codes is clear evidence of the seriousness with which Glasgow City Council treats questions of probity touching elected members and employees. The idea that Glasgow City Council is wracked by sleaze and indifferent to corruption is utterly false.
I believe you have already received copies of the Code of Conduct for Councillors and the terms of reference and procedures of the Standards Committee. I should like to highlight briefly two aspects of our work which are directly relevant to your consideration of this Bill. If you have questions about the cases we have dealt with so far, we will endeavour to answer them.
First there is the question of jurisdiction or, as some of your witnesses have described it, the problem of too many referees on the park getting in each other’s way.
The Glasgow solution to this problem is simple and practical: if we receive a complaint about an elected member – and we deal only with elected members because employees are dealt with by established staff disciplinary procedures – we look first to see whether the complaint comes within the jurisdiction of another body. If it does, we leave it to the other body to deal with it.
If a complaint alleges criminal misconduct, the information is passed to the Police and we do nothing which could compromise any subsequent prosecution.
If a complaint alleges matters which fall mainly within the jurisdiction of the Council’s auditors, it is dealt with first of all by them.
We have not yet had to consider an allegation against an elected member contained in a complaint to the Ombudsman, but if we do, I am sure that we ought to take no direct action on it until the Council has received the Ombudsman’s report.
The fundamental point is that our jurisdiction is residual. We deal only with matters which are not criminal and which do not come within the established jurisdiction of another agency. It follows that we do not deal with the most serious categories of complaint, nor are we ever likely to.
Indeed, if Parliament were to decide to act on Nolan’s recommendation and create a new offence of abuse of public office, our role would be even more restricted, and rightly so.
Our experience touches on your Bill in this respect, that in practice a National Standards Commission would find itself in the same position as the Glasgow Standards Committee: restricted at first instance to non-criminal and therefore less serious breaches of the Code. Its task would be to crack small nuts. One has to ask, how big is the hammer required for that job?
Second, there is the matter of procedures and penalties; these are inextricably linked.
The Standards Committee is an ordinary Committee of the Council. We are not a Court or a Tribunal. We cannot compel the attendance of witnesses, we cannot hear evidence under oath, and the person against whom the complaint has been made does not have the protection afforded the accused in a criminal trial by the rules of evidence and the law of contempt. It is accordingly fortunate and right that our powers of disposal are very limited. If we find a complaint upheld on the facts, we can only recommend to the Council that the member be censured and/or removed from some or all committees and other posts of responsibility. We have not yet had to do that, I am glad to say.
In the case of a member holding a Special Responsibility Allowance our recommendation could entail a severe financial penalty. So it is very important that we observe what are called the rules of natural justice and that we take as a standard of proof the balance of probability which is applied in civil cases in the Courts. But it must also be remembered that we are only talking about removal from a political office to which the person has been appointed by the Council; and it is one of the delights of political life that one can be sacked from office at any time for no reason at all, and with no right to appeal, complain or be compensated.
Again, we believe our experience bears directly on this Bill. Although undoubtedly the National Standards Commission would be more august, the position proposed for it in the Bill would not be essentially different from that of our Standards Committee.
It would not be a Court or a Tribunal; and the accused – for that is how s/he would undoubtedly be described in the tabloid press – would not have the protection which the criminal law extends to those charged with criminal offences.
Dealing effectively with serious misconduct outwith the scope of the criminal law is always very difficult. That is why I believe that Parliament should, in this Bill, act on Nolan’s recommendation and establish the offence of ‘abuse of public office’. But that would leave the National Commission to deal only with even more residual, and necessarily even more minor, breaches of Codes of Conduct.
You have received our written response to the Bill as submitted by the Executive to this Committee, and the City Council has studied with interest your initial report, which we are glad to see endorses many points which have been put to you in evidence by Glasgow City Council and others. I refer particularly to your recommendations in paragraphs 4, 5, 6, 10, 11, 13 and 18. (I am not referring to paragraph 19 today, because it deals with a different subject).
We also welcome unreservedly Parliament’s commitment to deal effectively with ethical standards in public life. But we still have fundamental difficulty with the model proposed in the Bill, even if it is amended in the ways you have recommended so far.
First, we believe that Councils and other bodies covered by the Bill should be allowed, if not required, to establish their own procedures to deal with the residue of complaints of misconduct which are not covered by the criminal law or other established regimes. We think it is both unnecessary for these to be dealt with nationally, and also desirable that all public bodies be allowed a measure of ownership of procedures for upholding standards in public life.
Second, we think it is wrong that any body, whether national or local, should have power to impose the penalty of disqualification from public office except through the due process of the criminal law. If a breach of the Code is serious enough to deserve disqualification, then it ought to be a criminal offence and subject to prosecution by due process of law. It is indeed highly questionable whether any less stringent procedure would pass the tests set by the new Human Rights provisions which have come into Scots law from the European Convention.
Glasgow City Council would accordingly welcome the Bill being amended in such ways that
That concludes my statement.
I would now be happy, along with Mr Drummond, to answer any questions
you may have, arising from my statement today or from the Council’s
earlier written response to the Scottish Executive.
Ethical Standards in Public Life etc. (Scotland) Bill
Scottish Council for Single Homeless is the key membership organisation representing individuals and organisations concerned with preventing and tackling homelessness in Scotland. Our members include local authorities, housing associations, voluntary organisations and individuals. Our aim is to support the elimination of homelessness in Scotland by:
Many of our members are currently working with young people who may become, are, or have been homeless.
We are grateful for the opportunity to give evidence to the Committee. Our particular concern with the Bill is to strongly support the repeal of Section 2a of the Local Government Act 1986.
Scottish Council for
Stonewall Youth Project is the primary provider of services to lesbian, gay, bisexual and transgender (LGBT) young people in south-east Scotland. The project provides information, advice and support, both individually and through peer groups. The project is funded by Lothian Health Board and the City of Edinburgh Council and is operated through an experienced staff team.
Stonewall Youth Project (SYP) believes that the legislation referred to as ‘Section 28’ has had a serious effect on the health and education of young people in Scotland. It has left LGBT young people isolated, marginalised and excluded from their friends, families and educators. The project further believes that the legislation has helped perpetuate a climate of intolerance and irrational prejudice towards LGBT people in Scotland.
The Effects of the Section on LGBT Young People
Young people who present themselves to SYP describe living a ‘double life’ where they cannot be themselves or talk about how they feel for fear of rejection, ridicule, punishment or violence.
"I get picked up in a taxi everyday from school because a day didn’t go by without someone hitting me. I can’t go up town to the [name of shopping centre] at the weekends, it’s too risky"
Male 15, West Lothian
Others who have sought help have not been offered any person-centred support or confidentiality.
"I decided to tell my teacher, because things were getting worse. She called the social work and before I knew it everyone knew, my mum, all my teachers, everyone. My life just crashed overnight"
Male 14, Fife
For many LGBT young people direct bullying or harassment is not the problem, many see and hear negative messages about other young people go unchallenged in youth clubs or classrooms.
"I just don’t know how to challenge it. I feel that I’ll just end up arguing with them and not winning."
Other young people have their isolation compounded by such approaches:
"period 3, music (ML talking in a loud voice directed at me but supposedly talking to someone else) ‘She’s definitely a lemon. She has a lemony look, don’t you think? then later ‘I can’t stand poofs and lemons’ (plus 8 more incidents recorded) This wasn’t a particularly bad day."
Diary entry, female 16, West Lothian
For some young people events leave their control:
"I got beaten up all the time, I went to the police and they told me to fight back. Eventually my mum kicked me out because these boys kept on coming round the house, she was scared for my baby brother. The hostel is okay but you can’t say too much, there are some real hard cases here"
Male 16, Edinburgh
The Effects of the Section on Teachers and Youth Workers
SYP has provided teachers and youth workers with numerous opportunities for training and information. Those teachers who have attended have spoken about a climate of fear in the profession about LGBT issues.
"You’ll have to send it (information about SYP) to the schools yourself. I can’t send it."
Education Department Officer
"(name of education department) says that there are no gay kids in our schools"
"It’s not us (those attending a training course) who you need to see. It’s the ones who aren’t here and won’t attend (who need training)"
However SYP has worked constructively with many teachers and youth workers in supporting individual young people over the years. The efforts of these staff often go unnoticed or unrewarded.
Teachers look to government and their education departments for guidance on classroom policy. SYP believes that there should be clear guidelines laying out that the quality of a child’s education should not be effected by their sexual orientation.
The Effects of the Section on Organisations
The removal of the current section will remove a structural barrier to organisations wishing to receive support from local authorities to work with the LGBT community. SYP applauds this and hopes that this will present an opportunity for additional work with LGBT youth across Scotland.
SYP would like to broadly welcome the new wording in that it is non-specific to LGBT issues. However SYP would like to recommend that there should be an additional duty on councils to have regard to the ‘needs’ of children, ensuring that schools and other provision should cater for all young people and not just the visible majority.
Consultation with Young People
SYP would like to highlight the lack of direct consultation with young people on this issue. The Executive should be advised to raise the issue with the Youth Parliament or other bodies.
Stonewall Youth Project
As the parents of a gay son we have been following closely the arguments about the proposed appeal of Section 28 by the Scottish Parliament.
Sexuality is part of the whole person and to suggest that it can be changed by ‘promotion’ is sheer nonsense. Peer pressure is enormous and one of the reasons why there is such a high level of suicide amongst gay teenagers is because they cannot conform to their friends’ desire for a partner of the opposite sex. They are attracted to people of their own sex and nothing changes that.
For the same reason - young people cannot be made gay. Our son knew he was different from the time he was 6 yrs old and this is quite common. He gradually learned what was different about himself but it was not until he reached University that he met anyone else who he knew to be gay. That whole process took 17 years, during which time he coped alone. We are so glad he coped - some young people can’t - but we are also devastated that he had to.
We have been part of a Parents Enquiry helpline for 9 years now and we are involved with the excellent Stonewall Youth Project . We hear repeatedly the stresses and strains caused to families who find out that they have a child who belongs to one of the sexual minority groups. The knowledge is isolating because there is little available information. Considering the substantial number of gay, lesbian, bi-sexual and transgendered members of society there are, the general level of ignorance is nothing less than a scandal.
As a teacher of children with severe and profound learning difficulties I have seen the development of excellent educational programmes dealing with all aspects of personal care, safety, self-esteem and encouragement to say NO when advances are unwanted. Educational facilities should be available to all children according to their needs There is no cast-iron guarantee that anyone’s children will all be heterosexual - we certainly had no idea about our son until he told us at 23.
When we teach children in schools about religious and cultural differences, we assume that we are promoting religious and cultural understanding and tolerance. How is this different from teaching them to understand the differences in sexual orientation which are part of life.
It is tragic when a child is bullied because of race or religion but at least he has his family or community to support him. A gay child is often not able to discuss this with his family or teachers and they possibly don’t know how to help him, anyway. We didn’t - we had to educate ourselves very fast.
Parents naturally worry about the safety of their children but statistically life is even more difficult for those who are gay - bullying and assault are major factors which will never be overcome by giving the impression that gay youngsters are not important enough to be included in educational provision made for every other child.
Our gay son has never had this kind of provision. He found his own way and because he grew up with our own values he has now found a loving and caring partner and they live in a loving and caring relationship which has nothing ‘pretend’ about it. It is only prejudice which makes life difficult. Their relationship is as valid as any other and I’m proud of them both for having the courage and trust (in each other and their families and friends) to be able to make an acknowledged partnership and a loving home.
Now that the Scottish Parliament is recognising its responsibility to this minority, but equally valid, group it is giving a lead in tolerance and respect which society sorely needs.