Elected Member Induction Notebooks

Standards, Ethics and Information Handling

Preface

This notebook provides a starting point for elected members to understand:

• the standards and ethics expected of you in terms of complying with the Councillors’ Code of Conduct;

• your rights to access information; and

• your responsibilities for handling information you have access to appropriately.

This notebook is not a substitute for reading the Councillors Code of Conduct, nor is it the definitive source for understanding your information handling responsibilities. Rather, it highlights important information to aid your understanding and signposts you to definitive sources for further learning.

Contents

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1. The Councillors’ Code of Conduct:‘Integrity in Public Life’ 4

2. Elected Member Behaviour 8

3. Registering and Declaring Interests 11

5. Lobbying and Taking Decisions of a Quasi-judicial or Regulatory Nature 14

6. Freedom of Information 15

7. Confidential Information and Data Protection 19

8. Checklist for Standards, Ethics and Information Handling 22

4. Gifts and Hospitality 13

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The Councillors’ Code of Conduct: ‘Integrity in Public Life’The public have a right to expect honest and upright behaviour from their elected representatives. Confidence in local democracy is essential to an open and inclusive society.

This can only be achieved when those serving their communities adhere to – and can be held accountable for – the high standards expected of them.

The Ethical Standards in Public Life etc. (Scotland) Act 2000 introduced an ethical framework to ensure that high ethical standards are maintained. The Councillors’ Code of Conduct applies to every elected member in Scotland and it sets out the standards you must apply when undertaking your council duties. When you declare your acceptance of office, you are also agreeing to be bound by the Code.

It is your personal responsibility to ensure that you comply with the Code and you are strongly advised to familiarise yourself with it.

The Standards Commission has published guidance on the Code and it is recommended that you use this to help you to interpret and comply with the Code.

If you are unsure of whether you are complying with the Code at any time, you are encouraged to seek advice from a senior officer, such as the council’s statutory Monitoring Officer.

It is very important to note that the rules of good conduct must be observed in all situations where you are acting as an elected member, including representing the council on official business.

You should be mindful that your perception of when you are carrying out official business and when you are acting privately may be different to how it is viewed by a member of the public. You may wish to treat the Code as being applicable in all situations in which you might be perceived to be acting as an elected member. The Standards Commission guidance lists the following factors to consider:

• whether you are clear about the capacity in which are you acting;

• whether you describe yourself as an elected member or are otherwise readily identifiable as an elected member in the situation/circumstances;

• whether you are on council premises or at a council event;

• whether you are using social media where you are identifiable as an elected member;

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• whether your conduct could reasonably be regarded as bringing your position as an elected member, or your council, into disrepute;

• whether you are engaged in political activity, or comment on political matters and whether these fall within or outwith the scope of the council’s functions;

• whether you are representing the council or speaking on behalf of the council.

Key principles of the Code of Conduct

The key principles themselves are for guidance and you should ensure that you have regard to and follow these principles. However, a breach of one or more of the key principles does not in itself constitute evidence of a breach of the Code. This is not always understood by members of the public,

or indeed by all members and officers. Ultimately it is your responsibility to make sure you are complying with the provisions of the Code.

The Scottish public has a high expectation of elected members and the way in which they should conduct themselves in undertaking their duties. You must meet those expectations by ensuring that your conduct is above reproach. In doing so, you may need to exercise your judgement and consider how a member of the public, with knowledge of the relevant facts, would reasonably regard your actions or decision making in your role as a councillor.

Elected members are increasingly using social media to engage with the public. The conduct expected of you on social media and on any other digital medium is no different to the conduct you should employ in other methods of communication and engagement with the public.

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iDUTYYou have a duty to uphold the law and act in accordance with the law and the public trust placed in you. You have a duty to act in the interests of the council as a whole and all the com-munities served by it, and to be accessible to all the people of the area for which you have been elected to serve, and to represent their interests conscientiously.

SELFLESSNESSYou have a duty to take decisions solely in terms of the public interest. You must not act in order to gain financial or material benefits for yourself, family or friends.

INTEGRITYYou must not place yourself under any financial or other obligation to any individual or organisa-tion that might reasonably be thought to influence you in the performance of your duties.

OBJECTIVITYYou must make decisions solely on merit when carrying out public business, including making appointments, awarding contracts, or recommending individuals for rewards and benefits.

ACCOUNTABILITY AND STEWARDSHIPYou are accountable for your decisions and actions to the public. You have a duty to consider issues on their merits, taking account of the views of others. You must ensure that the council uses its resources prudently and in accordance with the law.

OPENNESSYou have a duty to be as open as possible about your decisions and actions, giving reasons for your decisions and restricting information only when the wider public interest clearly demands.

HONESTYYou have a duty to act honestly. You must declare any private interests relating to your public duties and take steps to resolve any conflicts arising in a way that protects the public interest.

LEADERSHIPYou have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public’s trust and confidence in the integrity of the council and its councillors in conducting public business.

RESPECTYou must respect all other councillors and all council employees and the role they play, treating them with courtesy at all times. Similarly, you must respect members of the public when performing duties as a councillor.

KEY PRINCIPLES OF THECODE OF CONDUCT

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You are expected to follow these principles of behaviour in your role as an elected member:

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The bodies involved in ensuring compliance with the Councillors’ Code of Conduct

Two separate bodies with separate statutory functions are involved in enforcing compliance with the Councillors’ Code of Conduct:

1. The Commissioner for Ethical Standards in Public Life in Scotland The Commissioner for Ethical Standards in Public Life in Scotland and his team investigates complaints about MSPs, councillors and members of public bodies, as well as regulating how people are appointed to the boards of public bodies in Scotland.

2. The Standards Commission for Scotland The Standards Commission for Scotland was established under the Ethical Standards in Public

Life etc. (Scotland) Act 2000. The Standards Commission encourages high ethical standards in public life through the promotion and enforcement of codes of conduct for councillors and those appointed to devolved public bodies. It also issues guidance and advice notes to assist elected members and officers in interpreting the provisions in the Councillors’ Code of Conduct.

Relationship between both bodies

In terms of enforcement of compliance with the Code, the Commissioner investigates complaints, and, if he concludes there is a case to answer, the case will be referred to the Standards Commission who will make a final decision, usually after a public hearing on whether or not there has been a breach of the Code. Further detail on the investigation and hearing process can be found in the next section of this notebook.

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2. Elected Member BehaviourEvery action by an elected member and every decision by a council must be undertaken in the interests of the local authority area as a whole.

Decisions and actions will be subject to public scrutiny to ensure that this is the case.

The behaviour of elected members impacts on the climate and culture of a local authority so you need to ensure that your behaviour is exemplary. For example, you should avoid behaviour that might be construed as bullying or harassment.

The member–officer relationship

Councils which generally maintain the best member–officer relations are those where members of whatever party (or independent) and officers share the same commitment to serving the needs of their area and its constituents. Tensions can arise if the primary allegiance of an elected member is firstly to party and only secondly to the needs of their area.

Getting the member–officer relationship right requires that:

• elected members should define the core values of the organisation;

• elected members should identify priorities, and strategic direction for the council;

• officers should provide clear advice and offer alternative options where they exist;

• officers should implement council decisions, deal with matters delegated to them and are responsible for the operational delivery of services;

• elected members and officers should aim to develop a relationship based on mutual respect;

• elected members and officers should communicate clearly and openly, avoiding ambiguity and the risk of misunderstanding;

• elected members and officers should work in partnership to turn the core values and priorities into practical policies for implementation.

The Councillors’ Code of Conduct contains an appendix with a protocol for relations between elected

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members and officers and your council may also have established a local protocol for member–officer relations. The Accounts Commission’s report on Roles and Working Relationships in Councils provides further useful information on getting the member-officer relationship right.

Investigation and hearing of complaints about elected members

It is inevitable that complaints will be made against a small number of elected members who are felt by complainants to have acted against the provisions of the Code. This is a very serious issue. You also have the right to make a complaint about a fellow elected member if you believe he/she has contravened the Code. However, consistent tit-for-tat complaints based on party politics or personal differences is not in the best interest of the people you are elected to serve and is a waste of public resource that undermines the reputation of elected members and the council.

The Commissioner for Ethical Standards in Public Life in Scotland is an independent office-holder responsible for investigating complaints about elected members who are alleged to have contravened

the Code of Conduct.

In brief, unless there are unusual circumstances, when the Commissioner receives a complaint, the elected member will be told that a complaint has been made, the substance of the complaint and the name of the complainant. In most cases, the Commissioner will ask senior council officers to provide further information or documents. Having completed the initial screening stage, the Commissioner may conclude that the complaint is irrelevant or inadmissible and in these circumstances may decide not to pursue further enquiries on the complaint and will inform the complainant, the elected member, the council and any other person whom the Commissioner considers appropriate, of the decision and the supporting reasons, by letter.

If, however, it’s concluded that the complaint is relevant, admissible and warrants further enquiries, the Commissioner will undertake further enquiries to determine whether there is a sufficient factual basis to justify the submission of a report to the Standards Commission.

Where the Commissioner finds that there has been a contravention of the Code, the elected member will be given a copy of the draft report and

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an opportunity to comment. A copy will also be given to the council for information. After receiving comments from the elected member, the Commissioner will complete the report and submit the final version to the Standards Commission, the elected member and the council.

It is then a matter for the Standards Commission to decide whether to hold a hearing, to direct the Commissioner to carry out further enquiries or to take no action. If a hearing is held, the elected member and the

Commissioner may appear in person or be represented and put their cases to a hearing panel comprised of three members of the Standards Commission. The hearing panel will decide whether there has been a breach of the Code of Conduct and, if so, what sanction (censure, partial or full suspension or disqualification) should be imposed.

The Standards Commission has published its Hearing Process Guide and Rules on its website.

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3. Registering and Declaring InterestsRegistering Interests

A large part of the Code of Conduct is devoted to clarifying when an elected member should register an interest in a matter under consideration. All local authorities have a duty to set up, maintain and make available for public inspection a Register of the Interests of their elected members, as defined in section 4 of the Code of Conduct. The Register must be available electronically and councils are asked to make a version of this information available on their websites.

You must register any interests listed in Section 4 of the Code of Conduct within a month of declaring your acceptance of office, or within a month of your circumstances changing, so that the public, officers and fellow elected members know which interests might give rise to a conflict of interest. The register should cover the period commencing from 12 months prior to and including your current term of office. Just because you have an interest and decide to register it, does not mean that there is an ethical concern.

Financial interests that should be registered include your employer or business if self-employed, property or land in which you have a beneficial interest, and assistance towards

election expenses exceeding £50. You may also have significant non-financial interests, and it is equally important that relevant interests including membership of or holding office in public bodies, companies, clubs, societies and organisations such as trade unions and voluntary organisations, are registered and described. In this context, non-financial interests are those which members of the public might reasonably think could influence your actions, speeches or votes in the council.

If you are unsure whether you have to register an interest, seek advice from the council’s solicitor or Monitoring Officer. You will need to update regularly the register of your interests. These records are available for public inspection. If there is any change to your situation, it is your responsibility to update your entry in the register.

Declaring Interests

You must consider at the earliest stage of a meeting whether you have an interest to declare in relation to any matter that is to be considered. Your declaration of interest must be made as soon as practicable at a meeting where that interest arises. If you do identify the need for a declaration of interest only when a particular matter

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The financial interests of other persons

The Code of Conduct requires only your financial interests to be registered. You also, however, have to consider whether you should declare any financial interest of:

• a spouse, a civil partner or a co-habitee;

• a close relative, close friend or close associate;

• an employer or a partner in a firm;

• a body (or subsidiary or parent of a body) of which you are a remunerated member or director;

• a person from whom you have received a registrable gift or registrable hospitality;

• a person from whom you have received registrable election expenses.

is being discussed, you must declare the interest as soon as you realise it is necessary. You may find that declarations of interest are a standing item on the agenda for council and committee meetings. Your oral declaration of interest should identify the item or items of business to which it relates. Your statement should begin with the words “I declare an interest” and should be sufficiently informative to enable those at the meeting to understand the nature of your interest, but you do not need to give a detailed description of the interest.

Section 5 of the Code of Conduct outlines what financial interests and non-financial interests you must declare. If you declare a financial or non-financial interest in a decision, you must withdraw from the meeting room until discussion of, and voting on, the relevant item where you have a declarable interest is concluded, though there are some exceptions to this which are covered in section 5 of the Code. If you are not sure if something is a declarable interest you should seek advice from the council’s solicitor or Monitoring Officer at the earliest opportunity, and if possible in advance of the meeting.

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4. Gifts and HospitalitySection 3 of the Code of Conduct deals with the acceptance of gifts and hospitality.

You must not accept any offer by way of gift or hospitality which could give rise to real or substantive personal gain or a reasonable suspicion of influence on your part to show favour or disadvantage to any individual or organisation. The term ‘gift’ includes benefits such as relief from indebtedness, loan concessions, or provision of services at a cost below that generally charged to members of the public.

You are personally responsible for all decisions connected with the acceptance of gifts or hospitality offered to you and for avoiding the risk of damage to public confidence in your council and in local government. As a general rule, it is usually appropriate to refuse offers except:

• Isolated gifts of a trivial character, the value of which must not exceed £50;

• Normal hospitality associated with your duties and which would reasonably be regarded as appropriate;

• Civic gifts received on behalf of the council.

Bribery Act 2010

While you are only required to declare gifts under the Code of Conduct, if a gift to you or someone else induces or rewards you to improperly undertake a statutory duty, such as granting a planning permission, it is likely to fall foul of the provisions of the Bribery Act 2010. This could result in your criminal prosecution. The Standards Commission guidance (paragraph 25) provides further information and cases that help you understand and comply with the legislation.

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5. Lobbying and Taking Decisions of a Quasi-judicial or Regulatory NatureThe issue of lobbying and taking decisions on quasi-judicial or regulatory application are covered in section 6 and section 7 of the Code of Conduct.

There are standards expected of you when carrying out your duties in encouraging participation and providing access to the public in the decision making process. You may be lobbied by a wide range of people or organisations and this is an essential part of the democratic system.

However, if you are lobbied on issues of a regulatory matter such as a planning or licensing application, you cannot lend support for or against any such application that you will have a responsibility for making a decision on in due course. You should direct these representations to the appropriate department of the council.

When involved in making decisions on a quasi-judicial or regulatory application, you should avoid prejudging a decision prior to it coming before the committee. If you have an interest in the application, financial or non-financial, you should declare the interest and refrain from taking part in that decision. If you are seen prejudging a decision or you take part in a decision when you have an interest, that decision could be legally challenged and you may face an investigation and hearing to determine if you’ve breached the Code of Conduct.

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i6. Freedom of InformationBackground to the Freedom of Information (Scotland) Act 2002

The Freedom of Information (Scotland) Act 2002 (FOISA) provides a right of access to recorded information of any age held by Scottish public authorities in order to make those authorities more open and accountable to the people they serve. It is important to become familiar with the specific policies and procedures that your council has in place to ensure its compliance with the Act.

FOI requests and appeals

FOI requests can be made by anyone, although they must be made in writing (a fax or email is adequate). A request for information does not need to mention the FOISA, and any person who makes a request for information must be provided with it within strict time limits, unless any of the exemptions provided within the Act apply to the information. Any person who makes a request for information does not need to provide a reason why they are asking for the information, unless there are very exceptional circumstances.

It should be noted that it is a criminal offence for a council officer to alter, block or destroy information with the intention of preventing disclosure to

someone who has made a request and who is entitled under the Act to see the information.

If the person making the request is unhappy with the response to their request for information, they can first ask for a review of the decision and subsequently, if they are still not satisfied, they can appeal to the Scottish Information Commissioner who is responsible for enforcing and promoting Scotland’s freedom of information laws.

The Scottish Information Commissioner:

• investigates appeals and issues legally enforceable decisions;

• promotes good practice amongst public authorities; and

• provides the public with information on their rights.

Impact of FOISA on elected members

As an elected member, you are not individually subject to the Act when you act for your party or constituents. However, since the council is required to comply with the Act, any requests that relate to your work for the council will need to be answered. It is possible that members of the public will not

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make this distinction and will make a request for information held by the council to an elected member instead of to the council. You must make sure you know what arrangements your council has in place to enable you to pass across any requests for information which you receive so that they can be dealt with as appropriate by the council. Most local authorities will provide training or briefing in this regard.

Where requests have been made to an elected member and not to the council itself, the council does not have a duty to respond to the request under FOISA. However, councils do have a duty to advise and assist people making information requests under section 15 of the Act. Depending on the request, the duty might be fulfilled by asking the requester to make a new, valid information request direct to the council.

Information which is passed to a local authority by an elected member will fall within the scope of FOISA. If a request is received by the authority for that information it will have to consider whether this information is appropriate for release. Such information might include:

• emails from elected members to chief officers;

• comments on reports which have been prepared for consideration by a council committee;

• details of expense claims submitted;

• correspondence to the local authority regarding a constituency matter.

The act does contain a number of exemptions on the disclosure of certain information through FOI, though you should be careful in the wording of correspondence you send to officers within your council.

If you receive a written request for information relating to an issue involving another public body on which you are a Board member, you should pass the request to that body immediately as it has a responsibility to deal with such requests in accordance with its own FOI procedures.

The Scottish Information Commissioner has additional information for elected members on the Freedom of Information (Scotland) Act 2002.

Publication Scheme

The Act also places an obligation on all Scottish public authorities to adopt and maintain a ‘publication scheme’.

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All Scottish public authorities have produced a publication scheme that shows:

• the information they already make available or intend to make available;

• where you can find the information; and

• whether the information is available free of charge or on payment of a fee.

You might find it helpful to read your council’s publication scheme and also to look at the explanatory material provided for the public on how to exercise their rights under FOISA to access information held by the council.

Other laws dealing with access to information in Scotland

The Environmental Information (Scotland) Regulations 2004 provide rights similar to those provided by FOISA, but specifically with regard to environmental information. The INSPIRE (Scotland) Regulations 2009 create a right to discover and view spatial datasets (e.g. map data) held by Scottish public authorities. As with FOISA, elected members are not individually subject to the Regulations – it is the council that is required to comply with the Regulations. However,

environmental information and spatial datasets held by public authorities on behalf of elected members are subject to the Regulations, regardless of the purpose for which they were created.

Elected Members’ Right of Access to information held by the council

As an elected member, you will not generally be required to follow FOISA procedures in order to obtain information about your own council. In statute and common law, you have a legal right to inspect council documentation, though there are some exemptions.

Under the Local Government (Scotland) Act 1973, elected members have a statutory right to inspect any council document which contains material relating to any business which is to be transacted at a council, committee or sub-committee meeting. This right applies irrespective of whether the elected member is a member of the committee or sub-committee concerned and extends not only to reports which are to be submitted to the meeting, but also to any relevant background papers.

This right does not, however, apply to ‘confidential information’ and ‘exempt information’ considered in private at

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committee or sub-committee meetings. The items in question are those which contain exempt information relating to elected members, employees, occupiers of council property, applicants for grants and other services, the care of children, contract and industrial relations negotiations, advice from counsel and criminal investigations.

The common law right of elected members is much broader and is based on the principle that any elected member has a prima facie right to inspect council documents so far as his/her access to the document is reasonably necessary to enable the member to perform his/her duties properly as a member of the council. This principle is commonly referred to as the ‘need to know’ principle.

In other words, in common law, you are entitled to view and obtain copies of all documentation held by the council, provided that you can show you have ‘a need to know’ in connection with your duties as an elected member and that you have no ulterior or improper motive. In this respect, you do not have a right to ‘a roving commission’ to go and examine documents of the council – mere curiosity is not sufficient. You need to be able to demonstrate you have a ‘need to know’.

The provision of information comes at

a cost and you should ensure, where possible, that you are not used by members of the public as a conduit for access to information that is properly available through normal FOISA procedures.

Any council information provided to you must only be used by you for the purpose for which it was provided – i.e. in connection with the proper performance of your duties as a member of the council or in the exercise of a statutory right. This point is emphasised in paragraph 3.15 of the Code of Conduct. As a councillor:

“You will often receive information of a private nature which is not yet public or which perhaps would not be intended to be public... Such information is, however, for your individual use as a councillor and must not be disclosed or in any way used for personal or political advantage or in such a way as to discredit the council. This will also apply in instances where you hold the personal view that such information should be publicly available”.

Councils may have specific protocols regarding the sharing of information with yourself and other members, for example, of the same ward. You should make yourself aware of such protocols.

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You should think very carefully and seek advice before disclosing confidential or personal information, even when you believe that it may bring about a beneficial result. If you think that disclosing specific personal or confidential information might help to resolve a situation satisfactorily, then you should ask the person who produced the information or to whom it relates if they would be willing for you to share the information within certain parameters. If you are unsure whether or not information is to be treated as confidential, you should check with the people who produced it or to whom it relates. You should obtain advice from the council officers who deal with FOISA or data protection issues.

Data Protection Act 1998

Confidential information needs to be handled in line with relevant legislation. For personal information, the relevant legislation is likely to be the Data Protection Act (DPA) 1998, which applies to the whole of the UK. To deliver services and carry out its duties it is necessary for councils to gather personal information about constituents, staff and other

stakeholders. This includes names, addresses, contact details and, in some cases, more specific, sensitive personal information. The DPA sets out provisions as to how councils can gather, process and handle this information. It also provides a right of access for individuals to their own personal data (“Subject Access requests”). The DPA applies to elected members in the same way that it does to council employees, and covers paper records and computerised systems using equipment owned by elected members or provided by the council.

A key feature of the DPA is the requirement to store and dispose of confidential information securely. You should find out what arrangements are in place for this within your council and you should seek guidance on the storage and disposal of information out with council premises, for example, at home.

Unlike the Freedom of Information (Scotland) Act 2002, which is enforced and promoted by the Scottish Information Commissioner, the Data Protection Act is enforced and promoted by the UK Information

7. Confidential Information and Data ProtectionAs an elected member, you will have access to a range of confidential information, both about the work of the council and also about individual constituents or employees.

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Commissioner’s Office (UK ICO), which has a regional office in Edinburgh. There are therefore two Information Commissioners with jurisdiction in Scotland – the Scottish Information Commissioner and the UK ICO.

Your council may also have guidance on data protection.

The data controller role of elected members

In brief, elected members are regarded as data controllers if they process personal data and are required to notify the (UK) ICO of the reasons why they hold and process data. (Data controller means … a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed.) When holding and processing personal data about individuals in the course of council business, elected members are covered by the council’s own notification. However, if the data is used for other purposes, for example, for taking forward complaints made by local residents, for political activity or campaigning, elected members are required to notify as a data controller with the UK ICO. Relevant officers within your council will be able to advise you on the notification process.

Within your multi-member ward, you will only be allowed to disclose a constituent’s personal information to another elected member in your ward either:

• to address the constituent’s concerns; or

• where the particular issue raises a matter which concerns other elected members in the same ward and the constituent has been made aware that the other members will be advised and why it is necessary.

If your council has a caseload management procedure in place, it may prompt you to ask constituents if you can share information with other elected members in your ward. If a constituent asks an elected member to act for them and to request their personal data from the council, some councils require the elected member to provide the relevant officer with a mandate signed by the constituent.

If a constituent objects to the use or disclosure of their information, their objections should normally be honoured.

You should not pass on personal information which is not connected to the constituent’s case. If you are using personal data, you must keep it secure as misuse of data is a punishable

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ioffence. The UK ICO’s powers have been increased to impose a civil monetary penalty of up to £500,000 in cases where there has been a serious breach of the Data Protection Act 1998. Moreover, a wilful and reckless breach of the data protection principles is an offence.

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Checklist for standards, ethics and information handlingYou should:

1 Ensure that you read and have a good understanding of the Councillors’ Code of Conduct. The guidance produced by the Standards Commission will help you with this.

2 Ensure that you register any interests listed in section 4 of the Councillors’ Code of Conduct within one month of declaring your acceptance of office, and within one month of a change of circumstances.

3 Ensure that you understand in what circumstances you should declare interests.

4 Familiarise yourself with the roles of the Standards Commission for Scotland and the Commissioner for Ethical Standards in Public Life in Scotland

5 Find out if your council has a protocol in place for member-officer relations and, if so, familiarise yourself with this protocol.

6 Familiarise yourself with the investigation process to deal with complaints about elected members.

7 Familiarise yourself with the Freedom of Information (Scotland) Act 2002 and any FOI guidance produced by your council.

8 Familiarise yourself with information provided by your Council to the public on making a Freedom of Information request.

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9 Ensure that any personal constituent information is held securely, only used for the purposes for which it was given to you and is destroyed within the proper timescales.

10 Familiarise yourself with the Data Protection Act 1998 and how it applies to you in your role as an elected member.

11 Read any data protection guidelines produced by your council.

12 Ensure that you register as a data controller with the ICO.

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Mar 2017