240913 Paper 4 Code Of Conduct

Form­al Board Paper 4 13 Septem­ber 2024 Page 1 of 3

For decision

Title: Code Of Con­duct Addition

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

Stra­tegic context

1. The Park Author­ity board agreed its Code of Con­duct at its meet­ing on 25 March 2022, based on the mod­el code for pub­lic bod­ies pro­duced by the Stand­ards Com­mis­sion for Scot­land. Fol­low­ing approv­al by Scot­tish Min­is­ters the Code was adop­ted by the Park Author­ity in May 2022.

2. Officers have iden­ti­fied that the mod­el code for pub­lic bod­ies omit­ted spe­cif­ic cov­er­age for deal­ing with quasi-judi­cial and reg­u­lat­ory activ­it­ies and decision mak­ing, which is an import­ant aspect of the Park Authority’s oper­a­tions. This paper seeks to resolve that situ­ation, pro­pos­ing the addi­tion of a sec­tion to the Park Authority’s Code of Con­duct cov­er­ing such activities.

Pur­pose

1. The paper seeks to update the Park Authority’s Code of Con­duct with addi­tions based on the pro­vi­sions for quasi-judi­cial and reg­u­lat­ory activ­it­ies and decision mak­ing approved by the Stand­ards Com­mis­sion for Scot­land in the mod­el code for coun­cil­lors. The paper seeks to ensure the Park Authority’s code of con­duct is appro­pri­ate to the range of activ­it­ies and decisions under­taken by Park Author­ity mem­bers using pro­vi­sions already approved by the Stand­ards Com­mis­sion and sup­por­ted by exist­ing guidance.

Recom­mend­a­tions

1. The Board is asked to:

a) Approve the pro­posed addi­tion­al pro­vi­sions set out in Annex 1 to this paper for inclu­sion in the Park Authority’s Code of Conduct.

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b) Agree the sub­mis­sion of the updated Code of Con­duct to Scot­tish Min­is­ters for approval.

Stra­tegic policy consideration

1. Good gov­ernance and clear, effect­ive sup­port­ing policies and arrange­ments are an essen­tial under­pin­ning for the work of the Park Author­ity. Hav­ing iden­ti­fied a gap in the pro­vi­sions of the mod­el code as they relate to the oper­a­tion of the Park Author­ity, it is imper­at­ive that the Code of Con­duct is amended to provide clear cov­er­age of gov­ernance expect­a­tions for all forms of activ­ity and decision mak­ing in which the board may engage. Action covered by this paper will ensure the quasi- judi­cial and reg­u­lat­ory decisions are more fully and spe­cific­ally covered by the Park Authority’s Code of Con­duct, one of the board’s key found­a­tions of its gov­ernance arrangements.

Stake­hold­er engagement

1. The Stand­ards Com­mis­sion for Scot­land has been involved in the devel­op­ment of the pro­posed approach set out in this paper. Seni­or officers at the Stand­ards Com­mis­sion are sup­port­ive of the pro­pos­als set out in this paper.

2. Col­leagues at Loch Lomond and the Trossachs Nation­al Park Author­ity were also aler­ted to the gap in pro­vi­sions of the cur­rent Code of Con­duct and have also acted to address the gap in spe­cif­ic provisions.

Stra­tegic risk management

1. While this mat­ter does not address any stra­tegic risks cur­rently recog­nised, a fail­ure to address the issue iden­ti­fied would cre­ate a risk that our gov­ernance pro­cesses do not adequately cov­er our range of activ­it­ies and decision-mak­ing responsibilities.

Implic­a­tions

1. There is no resource implic­a­tions asso­ci­ated with the pro­pos­als set out in this paper.

2. The Park Authority’s gov­ernance and decision mak­ing has been oper­at­ing on the assump­tion that the mat­ters covered by these pro­pos­als have con­tin­ued to be in

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place. Pro­vi­sion had been made in the Park Authority’s pre­vi­ous Code of Con­duct and our under­pin­ning pro­ced­ures and arrange­ments con­tin­ue to sup­port good gov­ernance. The addi­tion to the Code pro­posed will cov­er a gap in this doc­u­ment, while enhan­cing and cla­ri­fy­ing the spe­cif­ic cov­er­age of pro­vi­sions and expectations

Suc­cess measures

1. This pro­cess will be com­pleted on approv­al of the revised Code of Con­duct by Scot­tish Min­sters and sub­sequent con­firm­a­tion to mem­bers from the Stand­ards Officer that the new Code is in place.

Sup­port­ing information

1. The Park Authority’s cur­rent Code of Con­duct is avail­able on our web­site at Mod­el Code of Con­duct for Mem­bers of Devolved Pub­lic Bod­ies (cairngorms​.co​.uk)

2. The pro­posed addi­tion to the Code, which will fol­low dir­ectly after point 6.8b of the cur­rent code and pri­or to the start of ​“Annex A: Breaches of the Code” is set out in full in Annex 1 to this paper.

Dav­id Camer­on, Deputy CEO and Dir­ect­or or Cor­por­ate Service

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Form­al Board Paper 4 Annex 1 13 Septem­ber 2024 Page 1 of 5

Annex 1

Tak­ing Decisions on Quasi-Judi­cial and Reg­u­lat­ory Matters

7.1 1 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 may 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 the Nation­al Park Authority’s repu­ta­tion and fin­an­cial liab­il­it­ies in the event of any challenge.

7.3 Quasi-judi­cial or reg­u­lat­ory decisions typ­ic­ally involve: a) Plan­ning b) Access c) Licens­ing d) Byelaws and oth­er reg­u­lat­ory activ­it­ies e) Stat­utory enforce­ment pro­ced­ure f) Staff­ing and employ­ment issues with­in the Board’s remit g) Stat­utory appeals and consents

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 the Nation­al Park Authority’s Mon­it­or­ing Officer.

Quasi-Judi­cial and Reg­u­lat­ory Matters

7.4 In deal­ing with these applic­a­tions, I will:

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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 five 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 Nation­al Park Author­ity employ­ees. f) Seek advice from the rel­ev­ant Nation­al Park Author­ity 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 Board Mem­bers 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. h) Oth­er­wise act improp­erly or do any­thing which could reas­on­ably cre­ate a per­cep­tion that I have acted improperly.

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Policy and Strategy

7.6 My role in policy and stra­tegic issues may have a very wide rel­ev­ance to my nation­al park area. For example, I have a key role in estab­lish­ing policies for the bene­fit of my nation­al parks 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 nation­al park area.

7.7 When I am being asked to devel­op a policy or feed into any Nation­al Park Part­ner­ship Plans and / or a Loc­al Devel­op­ment 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. I under­stand 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.

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 nation­al park area; c) Have regard to the evid­ence-base behind the for­mu­la­tion of the policy or strategy in question.

I will not: d) 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; e) 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;

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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 the Nation­al Park Author­ity by cre­at­ing a per­cep­tion of a con­flict of interest.

7.10 In cir­cum­stances where I am a mem­ber of the Board or 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.

Site Vis­its

7.11 In respect of any site vis­its that have been decided upon or agreed by the Board or Com­mit­tee as a stage in the con­sid­er­a­tion of the applic­a­tion, I will a) Fol­low the Nation­al Park Authority’s pro­ced­ures for such vis­its as set out by the Nation­al Park Author­ity 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 the Nation­al Park Authority.

Enforce­ment

7.12 In my role, I may become aware wheth­er by com­plaint or by dir­ect know­ledge of the need for Nation­al Park Author­ity inter­ven­tion by way of appro­pri­ate enforce­ment action. In this event, I will refer the mat­ter for invest­ig­a­tion to the appro­pri­ate ser­vice of the Nation­al Park Author­ity. I will also: a) Advise all sub­sequent enquirers to deal dir­ectly with the rel­ev­ant employ­ee of the Nation­al Park Author­ity; b) Be able to request fac­tu­al inform­a­tion about the pro­gress of the mat­ter from the rel­ev­ant employee.

I will not: c) Lobby for a par­tic­u­lar outcome;

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d) Get involved in the oper­a­tion­al detail of any enforce­ment actions which are sub­sequently taken by the Nation­al Park Authority