Paper 6 Audit and Risk Committee

21 June 2024

Page 1 of 6

For Dis­cus­sion

Title: Gov­ernance and Code of Con­duct Update

Pre­pared by: Dav­id Camer­on, Deputy Chief Exec­ut­ive and Dir­ect­or of Cor­por­ate Services

Pur­pose of Paper

This paper presents an update to the Com­mit­tee on mat­ters relat­ing to gov­ernance and oper­a­tion of the Code of Con­duct with­in the Park Author­ity. The paper sup­ports con­sid­er­a­tion by the Com­mit­tee of any for­ward actions which may be taken with­in the Park Authority.

Code of Con­duct and Changes to Guidance

1. The Gov­ernance Com­mit­tee con­sidered a num­ber of mat­ters relat­ing to the evol­u­tion of the Park Authority’s Code of Con­duct, togeth­er with revi­sions to guid­ance on the Code pro­duced by the Stand­ards Com­mis­sion for Scot­land, at its meet­ing on 17 May 2024. It is appro­pri­ate for the Audit and Risk Com­mit­tee to also con­sider these mat­ters with­in its remit for over­sight of sys­tems of intern­al con­trol and risk management.

Con­tent of Code of Conduct

1. The board approved the Park Authority’s Code of Con­duct at its meet­ing in March 2022, with the Code approved by the Stand­ards Com­mis­sion and Min­is­ters in May 2022. The Code of Con­duct was adop­ted by the Park Author­ity at that point, in May 2022. The Park Authority’s Code of Con­duct adopts in full and without addi­tion the Mod­el Code of Con­duct developed by the Stand­ards Com­mis­sion for Scotland.

2. The Deputy Chief Exec­ut­ive reviewed the pro­vi­sions of the Park Authority’s Code fol­low­ing the board’s dis­cus­sion on the devel­op­ment of con­sulta­tion on poten­tial byelaws to help man­age the risk of wild­fire. This review has iden­ti­fied that the Mod­el Code, and there­fore the Park Authority’s Code, does not con­tain pro­vi­sion to man­age hand­ling of quasi-judi­cial or reg­u­lat­ory busi­ness. Pro­vi­sion for these mat­ters had been incor­por­ated into the Park Authority’s pre­vi­ous Code of Con­duct. Those pro­vi­sions have now been lost with the adop­tion of the pro­vi­sions of the new Mod­el Code, with the require­ment for Non Depart­ment­al Pub­lic Bod­ies (NDPBs) to cov­er such busi­ness not picked up by the Com­mis­sion in the devel­op­ment of the new Mod­el Code. The Stand­ards Com­mis­sion have been con­tac­ted about this mat­ter and agree that addi­tion to the Park Authority’s Code of Con­duct to make pro­vi­sion for hand­ling quasi-judi­cial and reg­u­lat­ory busi­ness is required.

3. The Stand­ards Com­mis­sion sug­gest that pro­vi­sion as close as pos­sible to the ele­ment of the Coun­cil­lors Code of Con­duct is incor­por­ated in the Park Authority’s Code. This allows for stand­ards guid­ance already developed and approved for loc­al author­ity coun­cil­lors to also be applied to the Park Authority’s Code. The Gov­ernance Com­mit­tee is there­fore invited to review the mater­i­al in ques­tion and provide any com­ments or feed­back on the adequacy of these pro­vi­sions to the Deputy Chief Exec­ut­ive in tak­ing this mat­ter for­ward. The rel­ev­ant pro­vi­sions are set out at Annex One to this paper.

4. Ini­tial con­sid­er­a­tion by the Deputy Chief Exec­ut­ive is that this serves reas­on­ably well for Nation­al Park Author­ity (NPA) pur­poses if it was tidied up to make required ref­er­ences to NDPB boards rather than coun­cil / com­mit­tees. There are a couple of areas picked up as need­ing a bit more attention.

   • a) 7.3 may need tidied up a bit and made a little more gen­er­ic to fit our pur­poses and remove some areas of licen­cing activ­ity that we will not be involved in. Per­haps a list along the fol­low­ing lines:
     • i. Plan­ning
     • ii. Licens­ing
     • iii. Byelaws and oth­er reg­u­lat­ory activities
     • iv. Stat­utory enforce­ment procedures
     • v. Staff­ing and employ­ment issues with­in the board’s remit
     • vi. Stat­utory appeals and consents
   • b) 7.6 to 7.8 regard­ing policy and strategy seems a little con­fused for NPA pur­poses, where many policies and strategies work their way into Nation­al Park Part­ner­ship Plans (NPPP) and / or Loc­al Devel­op­ment Strategy (LDS). This could be made to work for NPA pur­poses if it was made clear in the guid­ance to the sec­tion that once a form­al pro­cess around policy or strategy devel­op­ment has star­ted then a quasi-judi­cial or reg­u­lat­ory pro­cess covered by these pro­vi­sions should be assumed to be under­way in terms of expec­ted com­pli­ance with the oth­er pro­vi­sions of sec­tion seven.
   • c) Input from the Cor­por­ate Per­form­ance Man­ager at Loch Lomond and the Trossachs Nation­al Park Author­ity (LLT­NPA) has also iden­ti­fied that sec­tions 7.11 and 7.12 are likely to be incom­pat­ible with the wider gov­ernance arrange­ments of NPAs and as such may need to be removed pri­or to incor­por­a­tion into a Park Author­ity Code of Con­duct. These sec­tions have been greyed out in Annex One for ease of reference.

5. The Gov­ernance Com­mit­tee iden­ti­fied that exist­ing pro­vi­sions of the Code of Con­duct cov­er­ing lob­by­ing should be tested to ensure they are adequate before final­ising any adapt­a­tions to the Code of Con­duct. Sec­tion six of the cur­rent Code of Con­duct does cov­er lob­by­ing and access to board mem­bers in full and there­fore no fur­ther adapt­a­tions to com­pensate for the remov­al of sec­tions 7.11 and 7.12 are expec­ted to be required.

6. For inform­a­tion, the Deputy Chief Exec­ut­ive is also coordin­at­ing this work for Loch Lomond and the Trossachs Nation­al Park Authority.

Update of Guid­ance Sup­port­ing Code of Conduct

1. The Stand­ards Com­mis­sion have made revi­sions to their guid­ance sup­port­ing the oper­a­tion of the Code of Con­duct. A num­ber of revi­sions have par­tic­u­lar rel­ev­ance to the Park Author­ity and are drawn out here for information.

   • a) High­lighted that all mem­bers of the board are required to com­ply with the Code, regard­less of how they have become a mem­ber (i.e. by elec­tion, appoint­ment or nomination).
   • b) New para­graph set­ting out the fol­low­ing: “… pub­lic body boards can com­prise of indi­vidu­als who are appoin­ted, elec­ted or nom­in­ated to the board in dif­fer­ent ways. Mem­bers should recog­nise that the reas­on such bod­ies are com­prised of indi­vidu­als with dif­fer­ent back­grounds, know­ledge and exper­i­ences is to ensure diversity of thought and to ensure that input from, and the per­spect­ives of, all key stake­hold­ers are con­sidered in any decision mak­ing. Mem­bers should ensure, there­fore, that they under­stand, respect and take account of dif­fer­ences in each other’s back­grounds, know­ledge and exper­i­ences, so these do not become a bar­ri­er to pro­gress and to the effect­ive­ness of the board itself.”
   • c) New para­graph set­ting out the fol­low­ing: ​“Mem­bers should be clear, nev­er­the­less, that they are required to act in the best interests of the pub­lic body, as opposed to the interests of any indi­vidu­al con­stitu­ency from which they have been appoin­ted, nom­in­ated or elec­ted. Such mem­bers need to be aware of their oblig­a­tions to the board and recon­cile these with their oblig­a­tions to their con­stitu­ency. While such mem­bers can raise mat­ters from the per­spect­ive of their con­stitu­ency, they should not pro­mote the interests of, or lobby on behalf of, the con­stitu­ency when sit­ting as a mem­ber of the pub­lic body.”
   • d) Sig­ni­fic­ant expan­sion of guid­ance sup­port­ing when a mem­ber may be per­ceived as being a mem­ber of a pub­lic body in their actions. This includes the fol­low­ing. ​“Mem­bers of some pub­lic bod­ies, espe­cially those elec­ted to the board, those appoin­ted via routes linked to a loc­al or spe­cif­ic com­munity (includ­ing Loc­al Author­ity appointees), or those who have reg­u­lar and dir­ect engage­ment with ser­vice users and stake­hold­ers, may have a high pro­file with­in that area or com­munity. If this is the case, you may wish to con­sider wheth­er mem­bers of the pub­lic might auto­mat­ic­ally assume you are com­ment­ing in your capa­city as a mem­ber, either in per­son or in any­thing you post, pub­lish or share, par­tic­u­larly if you are com­ment­ing on mat­ters that relate to the work or remit of the pub­lic body.”
   • e) With regard to social media use, the require­ment to con­sider very care­fully wheth­er “‘lik­ing’, repost­ing and shar­ing com­ments or posts, or pub­lish­ing links to oth­er sites could be reas­on­ably regarded in the cir­cum­stances as endors­ing the ori­gin­al opin­ion, com­ment or inform­a­tion, includ­ing inform­a­tion on oth­er sites.”

2. An advice note on these mat­ters will be issued to mem­bers for their aware­ness, along with cir­cu­la­tion of the Stand­ards Com­mis­sion for Scotland’s most recent update hand­ling these matters.

Stand­ards Com­mis­sion Hearing

1. As pre­vi­ously advised to all board mem­bers, the Stand­ards Com­mis­sion held a hear­ing on a com­plaint brought by a former board mem­ber against anoth­er former board mem­ber on 27 May 2024.

2. The hear­ing found that the former mem­ber failed to declare an interest at a plan­ning meet­ing of the Park Author­ity on 10 Decem­ber 2021. The Pan­el con­sidered that, hav­ing applied the object­ive test under the Code, the former mem­ber should have reached the view that their con­nec­tions to the item of busi­ness would be reas­on­ably regarded by mem­bers of the pub­lic with know­ledge of the rel­ev­ant facts as being so sig­ni­fic­ant to the applic­a­tions being con­sidered at the meet­ing, that it would be regarded as being likely to pre­ju­dice their poten­tial dis­cus­sion and decision mak­ing. The Pan­el agreed, there­fore, that the former mem­ber should have declared an interest and with­drawn from the meet­ing while the applic­a­tions were being discussed.

3. The hear­ing also found the former mem­ber, on the face of it, to have breached the respect pro­vi­sions in the Code in respect of a remark they made about a seni­or employ­ee of the Park Author­ity at a board meet­ing on 25 Novem­ber 2022. The Pan­el found that the former member’s remark impliedly, and pub­licly, accused the employ­ee of bul­ly­ing and intim­id­at­ing Mem­bers of the Park Author­ity in provid­ing them with advice about when they may need to declare interests. The Pan­el agreed that the mak­ing of such an accus­a­tion about the con­duct of the employ­ee was ser­i­ous and could have been dam­aging, not only to their repu­ta­tion as an indi­vidu­al, but also to the Park Author­ity itself. The Pan­el noted that, in terms of the eth­ic­al stand­ards frame­work, the employ­ee in ques­tion was expec­ted to provide mem­bers with advice about com­pli­ance with the Code. The Pan­el acknow­ledged they did so both to ensure that Mem­bers com­plied with its pro­vi­sions, but also to ensure the pro­pri­ety of decisions made by the pub­lic body and to mit­ig­ate the risk of these being chal­lenged. The Pan­el was of the view, nev­er­the­less, that while the Respondent’s remark was emotive and unjus­ti­fied, it did not con­sider that it was suf­fi­ciently offens­ive, per­son­ally abus­ive or shock­ing as to jus­ti­fy a restric­tion on her right to free­dom of expres­sion under Art­icle 10 of the European Con­ven­tion on Human Rights. The Pan­el con­cluded, there­fore, that a form­al find­ing of a breach of the Code could not be made.

4. It is appro­pri­ate to reflect on any les­sons learned or actions needed to address mat­ters relat­ing to any stand­ards or gov­ernance mat­ters high­lighted by such processes.

5. In this instance and recog­nising the num­ber of new mem­bers now present on the Park Author­ity board and the recent com­ple­tion of the board appoint­ment pro­cess, reg­u­lar train­ing on the Code of Con­duct is now being sched­uled for later in the cur­rent cal­en­dar year. The Stand­ards Officer can ensure this train­ing con­tin­ues to include its usu­al focus on the level of under­stand­ing of the oper­a­tion of the object­ive test with­in the Code, and that a key con­sid­er­a­tion for all board mem­bers is to reflect on the per­cep­tion of the pub­lic on assess­ing their actions as a board mem­ber of a pub­lic body, rather than their own intent or motivations.

6. A fur­ther action iden­ti­fied is to con­sider wheth­er any con­trol sys­tem improve­ments for oper­a­tion of the board and its com­mit­tees may be made, whereby the role of the Stand­ards Officer in sup­port of Con­vener or Chair of meet­ings to safe­guard the pro­pri­ety of decision mak­ing at the Park Authority’s meet­ings can be made more explicit.

Dav­id Cameron,

Deputy CEO and Dir­ect­or of Cor­por­ate Services

June 2024

Annex 1: Audit and Risk Committee

21 June 2024

Page 1 of 6

Annex 1

Title: Extract from Mod­el Coun­cil­lors Code of Conduct

Pre­pared By: Dav­id Camer­on, Deputy Chief Exec­ut­ive and Dir­ect­or of Cor­por­ate Services

SEC­TION 7: TAK­ING DECISIONS ON QUASI-JUDI­CIAL OR REG­U­LAT­ORY APPLICATIONS

Intro­duc­tion

7.1 I need to be espe­cially vigil­ant when I am mak­ing a decision on a quasi-judi­cial or reg­u­lat­ory applic­a­tion. For these applic­a­tions, I need to ensure there is a prop­er and fair hear­ing of the applic­a­tion and I must avoid any impres­sion of bias in the whole decision-mak­ing process.

7.2 I will deal with many types of quasi-judi­cial or reg­u­lat­ory applic­a­tions. Depend­ing on the type of applic­a­tion that is made, there will often be a form­al, stat­utory decision-mak­ing pro­cess for its con­sid­er­a­tion and out­come. There may also be form­al leg­al routes to chal­lenge decisions made on these applic­a­tions and for this reas­on, I must be aware that my own per­son­al respons­ib­il­ity to ensure a prop­er and fair hear­ing has wider con­sequences for my council’s repu­ta­tion and fin­an­cial liab­il­it­ies in the event of any challenge.

7.3 Quasi-judi­cial or reg­u­lat­ory decisions typ­ic­ally involve:

* a) Planning or other applications in terms of planning legislation
* b) Applications for alcohol licensing matters
* c) Applications for betting and gaming premises
* d) Applications for taxi licences and all other forms of civic licensing
* e) Actions where my council is involved in any form of statutory enforcement procedure
* f) Any actions where my council is an employer and is involved in any disciplinary issues that I may have a remit to deal with
* g) Any procedures for statutory approval or consent involving my council and where I have a remit to deal with the matter;
* h) Any appeal procedure where my council has a role and where I am expected to adjudicate on applications, for example an Education Appeals Committee for school placements or school exclusions.

The above list is provided to me only for guid­ance and is not exhaust­ive. If I have any doubt as to wheth­er or not my involve­ment involves a quasi-judi­cial or reg­u­lat­ory mat­ter I will seek the advice of my council’s Mon­it­or­ing Officer.

Quasi-Judi­cial and Reg­u­lat­ory Matters

7.4 In deal­ing with these applic­a­tions, I will:

* a) Throughout my involvement with the entire application process act fairly and be seen to act fairly
* b) Declare interests where required in terms of Section 5 of this Code and leave the meeting until the matter has been determined
* c) Deal fairly and impartially with all parties involved in the application
* d) Tell those who may be seeking to influence me out with the proper decision-making process that I will not formulate an opinion on any particular application until all information is available to all decision-makers and has been duly considered at the relevant meeting
* e) Take into account professional advice given to me by council employees and
* f) Seek advice from the relevant council employee if I am in doubt as to any material or relevant considerations.

7.5 In deal­ing with such applic­a­tions, I will not:

* a) Pre-judge or demonstrate bias or be seen to pre-judge or demonstrate bias
* b) Indicate or imply support for or opposition to an application nor indicate my voting intention prior to the appropriate meeting where the application will be considered
* c) In advance of the decision-making meeting, attempt to influence employees to adopt a particular position as that would imply that I am prejudiced in my decision making;
* d) Lobby other councillors who may be dealing with the application;
* e) Express any view on the application before the appropriate meeting where the application will be considered. If I do so I will not participate in any aspect of the decision-making nor vote on the application
* f) Formulate my conclusions on an application until all available information is to hand and has been duly considered by me at the meeting where the application will be considered
* g) Express any indicative or provisional views in the course of my involvement in any aspect of the application; or
* h) Otherwise act improperly or do anything which could reasonably create a perception that I have acted improperly.

Policy and Strategy

7.6 My role in policy and stra­tegic issues may have a very wide rel­ev­ance to my coun­cil area. For example, I have a key role in estab­lish­ing policies for the bene­fit of my council’s area and I am fully entitled to express my genu­inely held views or to advoc­ate pro­pos­als for the adop­tion of key guid­ance. It is entirely appro­pri­ate that I can express my views on mat­ters of such gen­er­al import­ance to my coun­cil area.

7.7 When I am being asked to devel­op a policy and set a strategy that forms the frame­work under which indi­vidu­al applic­a­tions may sub­sequently be decided, I under­stand that I can dis­cuss or debate these items of policy or strategy. How­ever, I will only take into account mater­i­al con­sid­er­a­tions affect­ing the policy or stra­tegic issue and will have regard to the require­ment for the adop­tion of the policy or strategy to be based on facts and evidence.

7.8 For policy and stra­tegic issues under which indi­vidu­al applic­a­tions may sub­sequently be decided, I will:

* a) Be able to express my views
* b) Be able to advocate proposals that I consider to be of benefit to my council area
* c) Have regard to the evidence-base behind the formulation of the policy or strategy in question.

I will not:

* a) Do anything or be motivated to do anything that is connected or linked in any way with my personal involvement in a policy or strategic issue
* b) Express any view that suggests I have a closed mind on the policy or strategic issue regardless of any material considerations affecting that issue.

Rep­res­ent­a­tion

7.9 If I intend to be involved in the decision-mak­ing for any quasi-judi­cial or reg­u­lat­ory applic­a­tion, I will not:

* a) Organise support for or opposition to the application in any way
* b) Represent or appear to represent individuals or groups who are seeking to make representations for or against an application; or
* c) Compromise myself or my Council by creating a perception of a conflict of interest.

7.10 In cir­cum­stances where I am a mem­ber of a Com­mit­tee as a decision maker but have been involved in organ­ising sup­port for or oppos­i­tion to an applic­a­tion, I will:

* a) Declare an interest in the matter, and
* b) Withdraw from the meeting without participating in the consideration of the matter.

7.11 In cir­cum­stances where I am a mem­ber of a Com­mit­tee as a decision maker but wish to rep­res­ent indi­vidu­als or groups who are seek­ing to make rep­res­ent­a­tions for or against an applic­a­tion, I will:

* a) Follow procedures agreed by my council which afford equal opportunity to any parties wishing to make representations to do so
* b) Declare an interest in the matter; and
* c) Only remain in the meeting, while that item is being discussed, for the purposes of acting as the representative of the individual or group throughout the duration of their participation.

I will not:

* a) Participate or attempt to participate as a decision-maker in that application
* b) Attempt to influence employees to adopt any particular position relative to the matter; or
* c) Lobby other councillors who may be involved in the decision-making process.

7.12 In cir­cum­stances where I am not a mem­ber of any Com­mit­tee which is mak­ing a decision on an applic­a­tion, but wish to rep­res­ent indi­vidu­als or groups who are seek­ing to make rep­res­ent­a­tions for or against it, I will:

* a) Follow procedures agreed by my council which afford equal opportunity to any parties wishing to make representations to do so; and
* b) Only remain in the meeting for that item for the purposes of acting as the representative of the individual or group throughout the duration of their participation.

I will not:

* a) Participate or attempt to participate as a decision-maker in that application
* b) Attempt to influence employees to adopt any particular position relative to the matter; or
* c) Lobby other councillors who may be involved in the decision-making process.

Site Vis­its

7.13 In respect of any site vis­its that have been decided upon or agreed by the Com­mit­tee as a stage in the con­sid­er­a­tion of the applic­a­tion, I will:

* a) Follow my council's procedures for such visits as set out by my council and that with regard to any legislative requirements or notes of guidance or practice
* b) Remember that such site visits are part of the decision-making process and as such are formal in nature and may have procedures as set out by my council.

Enforce­ment

7.14 In my role, I may become aware wheth­er by com­plaint or by dir­ect know­ledge of the need for coun­cil inter­ven­tion by way of appro­pri­ate enforce­ment action. In this event, I will refer the mat­ter for invest­ig­a­tion to the appro­pri­ate ser­vice of my coun­cil. I will also:

* a) Advise all subsequent enquirers to deal directly with the relevant employee of the Council department
* b) Be able to request factual information about the progress of the matter from the relevant employee.

I will not:

* a) Lobby for a particular outcome
* b) Get involved in the operational detail of any enforcement actions which are subsequently taken by my council