Under the Ethical Standards in Public Life etc (Scotland) Act 2000, the Scottish Ministers are required to issue a Code of Conduct for Councillors ("the Code"). In this blog, we summarise the key changes in the latest version of the Code which came into force on 7th December 2021.

Background to changes

The Scottish Government considered that the previous version of the Code, which was issued in July 2018, was outdated and in need of revision. The changes were required to represent shifts in public concern as well as the need for guidance on problems which had been inadequately addressed in previous iterations which we have blogged about previously here. The Scottish Government consulted on revisions to the Code and the new version was brought into force on 7th December 2021.

General changes to the Code

The version now in force is written in plain English and is phrased in the first person 'I will' rather than the second person 'you are'. Any unnecessary information has been removed and paragraphs are shorter and more concise, making it easier to navigate to the area of relevance. More emphasis has also been placed on active steps that Councillors should take when certain circumstances arise, using language such as 'I will tell…' and 'I will seek advice…'. The effect of such changes in language may be said to encourage personal responsibility and action for Councillors when interacting with points of concern within the Code.

Key substantive changes to the Code

1. Stronger emphasis on discrimination and harassment. The Code now explicitly mentions areas of discrimination such as race, gender reassignment and disability, and it mandates that Councillors will advance equality of opportunity and foster positive relationships between different groups (3.1). Among other bullying and harassment guidance in the section dedicated to Respect and Courtesy, the Code requires Councillors to confirm that they will not take unfair advantage of their position of power (3.9).

2. Strengthened rules around gifts. The new Code strengthens the requirement that Councillors should never ask for gifts or hospitality and adds (in bold) that they should also never seek these. There is also a clear provision that these should always be refused except as set out in four specific circumstances (Section 3.13-3.20).

3. Established three-stage test for whether an interest should be declared. The Code has streamlined the guidance around declarations of interest into a more straightforward three-stage test for identifying and disclosing potential conflicts of interest: Stage 1 – Connection, Stage 2 – Interest, and Stage 3 – Participation. Each stage has various considerations to guide Councillors on when and how to make a declaration of interest (Section 5).

4. Clearer rules around access and lobbying. The section in the Code addressing lobbying and access is now broken down into various areas where problems might occur, such as during constituent enquiries or community engagement. It also directs Councillors with active steps and express prohibitions around access and lobbying (Section 6).

5. Substantially revised guidance on decisions in quasi-judicial or regulatory applications. The Code emphasis the need to be 'especially vigilant' when making decisions of this nature. Examples set out include planning applications and alcohol licensing matters, among other areas. It sets out the active steps that Councillors will or will not take when making such decisions. The fairly substantial changes for such applications within the new Code seek to address problems which previously arose for Councillors engaging in such decisions (Section 6 and 7).

The Code can be found here as well as guidance from the Standards Commission for Scotland here.

Our team regularly advises on local government matters related to conduct, ethical standards and equalities issues. If you have any questions relating to the above, please do get in contact with Jackie McGuire, Johanna Boyd or your usual Brodies contact.