Ethical Standards in Public Life: changes to the codes of conduct

In October 2020, the Scottish Government opened the consultation process for the Code of Conduct for Councillors ('the Councillors' Code') and the model code of conduct for members of devolved public Bodies ('the Public Bodies Model Code'). The consultations sought responses on the revisions to both codes.

In this blog, we take a look at some of the key changes the Scottish Government are proposing to make to the Councillors' Code and Public Bodies Model Code.

What are the codes?

The Ethical Standards in Public Life etc. (Scotland) Act 2000 requires the Scottish Ministers to issue a Code of Conduct for Councillors and a Model Code of Conduct for members of devolved public bodies. The purpose of the codes is to set out clearly and openly the standards that councillors and members of devolved public bodies must comply with when carrying out their duties.

Why change the codes?

The Scottish Government ('the SG') considers the current codes to be outdated. The codes were last revised in 2014. The SG recognises that there have been a number of changes within society since the current codes were published. For example, it has stressed the need for the codes to take into account the increased use of social media.

What are the proposed changes?

For both codes, the SG has made general changes intended to make the codes more 'user friendly'. Therefore, many of the revisions to the codes do not make substantial changes to what the codes require members of devolved public bodies and councillors to do. Instead, the text has been rewritten in plain English or unnecessary information has been removed.

There are, of course, some proposed changes to what the codes will require councillors and members of devolved public bodies to do. Some of the key propose changes are as follows:

Code of Conduct for Councillor

• A greater emphasis on addressing discrimination and unacceptable behaviour.
• Stronger rules around accepting gifts.
• Establishing three clear stages for determining whether to declare an interest.
• Liberalises the guidance/rules around being a council-appointed representative on an outside body.
• Makes the rules around access and lobbying clearer.
• A substantial reworking of the provisions on taking decisions on quasi-judicial or regulatory applications. These changes are designed to ensure the provisions can cover all types of applications and decisions.
  

Model code of conduct for members of devolved public bodies

• Raising awareness of the need for careful consideration when a member of a devolved public body uses social media. This includes a proposed requirement to treat everyone with courtesy and respect when using social media.
• Increased emphasis on addressing discrimination and unacceptable behaviour.
• Strengthening obligations regarding bullying and harassment. One proposed change states that it will be the responsibility of members of devolved public bodies to understand what constitutes bullying and harassment and to read relevant Standards Commission guidance to ensure their knowledge is up to date.
• Strengthening rules around accepting gifts.
• Greater clarity around the tests for declaring an interest.
• Amendments to the rules around lobbying and access.

Commentary

The consultation process has now closed. The SG recently published an analysis of the responses received. An overwhelming majority of the responses agreed that some changes to both codes are necessary (90% of responses in relation to the Councillors' Code, 93% of responses in relation to the Public Bodies Model Code). The responses for the most part were supportive of the proposed changes to both models. This means it is very likely that many of the proposed changes will feature in the final codes.

The proposed changes place requirements on members of devolved public bodies and councillors to actively do certain things (e.g. to understand and keep up to date with guidance on bullying and harassment). Therefore, it is important that there is an awareness and good understanding of exactly what the codes require of them.

For now, the revised codes are a work in progress. Both model codes will have to be laid before the Scottish Parliament before publication. While there are no definite timescales for publication, the SG has committed to having both codes laid before Parliament by the earliest possible date.

Our team at Brodies regularly advise on ethical standards in public life. If you have any questions relating to the above, please do not hesitate to contact Niall McLean, or your usual Brodies contact.