82 The Convention of Scottish Local Authorities (COSLA) adopted and circulated a
National Code of Conduct for Local Government Employees in November 1997. Scottish
local authorities have been asked to adopt this code or develop their own but with the
proviso that it should have at least the same effect; the standards cannot be less. The
Government commends these actions, but believes that a statutory duty on local
authorities to adopt a Code for their employees will be an important part of the new
ethical framework.
|
| 83 We will, therefore, place a duty on each council to subscribe to an Employees
Code, which will be a statement of the rules of conduct for the behaviour of its staff in
the performance of their duties as employees. As with the Code for Councillors, the
national model for the Employees Code could be a document prepared by COSLA in
consultation with others, and approved by Ministers. It may also be appropriate
for such a model to be endorsed by Parliament, particularly if the model code
includes provisions restricting the political activities of certain council staff
(see paragraphs 93 to 100 below). |
| 84 We accept the view of the Nolan Report that since employees are subject to
normal employment law, a statutory enforcement regime for the Employees Code –
analogous to that for the councillors’ Code – is unnecessary. We envisage, however,
that the requirements of the Employees Code would be included as part of an
employee’s terms and conditions of employment. Enforcement of the Employees
Code would therefore be through the staff disciplinary arrangements and
employment law. |
| 85 The Government will discuss the detailed implementation of these proposals with
COSLA, the trades unions and other interested bodies. We will wish to consider the
extent to which the voluntary code already published by COSLA may serve as a model
for approval by Ministers and for individual councils to follow, or whether the new
statutory basis of the Employees Code will require some modifications to COSLA’s
approach. |
| Relations Between Members and Officers
|
| 86 The steps described above, together with the proposals in Chapter 2, will ensure that
both councillors and officers know the standards of conduct that are expected of them.
But the relationships between councillors and officers are also crucial to good local
government. It is a commonly expressed view that relationships cannot be regulated and
that any attempt to do so is in itself likely to damage the mutual trust and respect
between councillors and officers on which good local government relies. The Government
believe, however, that it will be beneficial for the principles that should govern working
relationships to be set out in broad terms, and are minded to accept the recommendation
of the Nolan Report that all authorities should have their own protocols. It would,
however, be for individual authorities to decide how best to address their own particular
circumstances. |
| Q22. The Government welcome comments on the proposals for regulating officers’
conduct. To what extent can the National Code for Local Government Conduct
published by COSLA in November 1997 serve as a model for a statutorily-based
and binding code of conduct? What is the most effective way of ensuring good
relations between members and officers? |
| The Statutory Officers |
| 87 The posts of Head of Paid Service and Monitoring Officer are required by the
Local Government and Housing Act 1989. The Head of Paid Service is required to report
to the authority, where he or she considers it appropriate to do so, on the co-ordination
of the discharge of the authority’s functions and the management and organisation of its
staff. He has no other duties, though in practice Heads of Paid Service are almost always
Chief Executives. The Monitoring Officer is required to report to the authority any
proposal, decision or omission which, in his or her view, would amount to a
contravention of the law or a code of practice, or would amount to maladministration or
injustice.
|
88 The post of Chief Financial Officer in England and Wales draws its statutory basis
from the Local Government Act 1972. Under the Local Government Finance Act 1988,
which also imposes requirements as to professional qualifications, he or she is required to
report to the authority any actual or prospective unlawful expenditure, or any proposal
to incur expenditure in excess of the resources available. The Scottish equivalent is
defined under section 95 of the Local Government (Scotland) Act 1973 as “the proper
officer”.
|
89 The Nolan Report records two criticisms of the present position: that to put posts
on a statutory basis is unnecessary because good officers are already driven by their
responsibility as professionals; and that the duties of the statutory officers are in
themselves unworkable. The Report recommends that the statutory powers given to these
posts should be reviewed.
|
| 90 The enforcement and disciplinary arrangements described in Chapter 3 of this
consultation paper place some new responsibilities on Monitoring Officers. They
endorse the informal role that Monitoring Officers may already play in keeping up
standards of conduct by encouragement and persuasion, and they also establish a more
formal role in the handling of allegations of councillors’ breaches of the Code of
Conduct. Although, under these arrangements, a Monitoring Officer will not be required
to initiate disciplinary action, he or she may be required to take a view whether an
allegation constitutes a prima facie breach of the Code and, if so, to inform the
Chairman of the Standards Commission. These arrangements will therefore require
Monitoring Officers to operate more openly and publicly than the discharge of their
responsive functions under the 1989 Act requires. Decisions on the handling of
complaints against councillors will need to command respect both within the council
and in the wider community. The Government therefore propose to make it a
requirement for Monitoring Officer posts to be established at Chief Officer level (ie that
they should report directly, or be directly accountable, to the council itself or one of its
committees or sub-committees). The Government also propose to confirm the
independence of the Monitoring Officer by introducing an explicit requirement that the
head of paid service may not also be the monitoring officer.
|
| Q23. In the light of the new disciplinary arrangements proposed in Chapter 3, should the
Monitoring Officer be a chief officer who may not also be the Head of Paid
Service? Should the Head of Paid Service be retained as an arbiter of good
management practice in councils? If so, in what detail should the duties of that
post be prescribed?
|
| Protection Against Dismissal
|
| 91 Under existing regulations in England, and as part of a collective agreement within
the Scottish Joint Negotiating Council (SJNC) for Chief Officials, authorities wishing to
dismiss a Head of Paid Service on grounds of misconduct must appoint an independent
assessor and secure his agreement to their proposed action. The Nolan Report recognises
the case for extending this protection to the Monitoring Officer and (in England and
Wales) the Chief Financial Officer. We note that approval for this has been expressed by
some respondents, while others regard the protection as worthless or foresee difficulties
in extending it. It is argued that the state of relationships between members and officers
is a better indicator of an authority’s good conduct and well-being.
|
| 92 Since Monitoring Officers have a key role in the enforcement and disciplinary
arrangements proposed in Chapter 3, there is a strong case for extending protection
to them. Scottish equivalents of Chief Financial Officers already play a key role in
handling financial propriety issues, including advising members on the lawfulness of
proposed expenditure. The Government accept the recommendation in the Nolan Report
that Monitoring Officers and Chief Financial Officers should have the same protection
against dismissal as Heads of Paid Service.
|
| Q24. Should protection against dismissal be statutorily regulated in Scotland? Should it
be extended to Monitoring Officers and the Scottish equivalent of Chief Financial
Officers? Should other chief officers have similar protection?
|
| Politically Restricted Posts
|
| 93 The Nolan Report drew attention to the regulations, made under the Local
Government and Housing Act 1989, restricting the political activities of certain local
government officers. The Report commented that “no convincing case was made to us
[Lord Nolan and his Committee] for their [the regulations’] abolition or alteration”.
|
| 94 The Government are firmly committed to the principle of political impartiality in
senior public officials, and we wish to maintain public confidence in the way they carry
out their official duties. We believe that certain restrictions on the political activities of
public servants are necessary for an effective system of democracy. However, we also wish
to ensure that any such restrictions achieve that objective without encroaching
unnecessarily on individuals’ freedom to take part in political activity if they wish to do
so. Under article 10 of the European Convention on Human Rights any limit on freedom
of expression must be reasonable. Hence, the restrictions on the political activities of
public servants must be kept to the minimum necessary for the effective operation of our
system of democracy, and must include appeals mechanisms of sufficient flexibility and
impartiality to meet the requirements of the Convention.
|
| 95 In July 1997 the European Commission of Human Rights reported that in their view
the current regulations violated the fundamental freedoms enshrined in the European
Convention on Human Rights. The Government are contesting this report in the
European Court of Human Rights – the case is due to be heard before the Court in April 1998. The Government have also, as announced on 30 September 1997, undertaken to
review the current restrictions on local government employees, addressing the detail of
the current regulations and looking in particular at the level and number of officers
covered. The current statutory position is set out at Annex B to this consultation paper,
together with a comparison with the rules on political restrictions which apply to the
civil service.
|
| 96 The underlying aim of the current regime is that those council staff who regularly
give advice to members, or speak to the media on council business, should be politically
restricted as to their activities outside their employment. Equally, the underlying aim is
that no other council staff should be so restricted. The regime operates through those
earning above a specified amount being assumed to fall within the “restricted category”,
with the onus on them to demonstrate to the Independent Adjudicator if this assumption
is not in fact correct in their individual circumstances. It is also open to a council, given
an employee’s particular duties, to designate that employee as in the “restricted category”
even though his or her salary is below the threshold.
|
| 97 We currently remain of the view that this overall approach is an appropriate means
of achieving the underlying objective which we believe is essential to the effective
operation of our local democracy. For the avoidance of doubt, we wish to make it clear
that we do not intend that officers under political restriction should be able to stand for
the Scottish Parliament. However, we have noted that the salary threshold above which
council employees are assumed to be in the “restricted category” is relatively low, and
indeed is generally lower than that which applies to the civil service. Accordingly,
particularly given that the salary threshold in local government merely provides a
rebuttable assumption that a post is in the “restricted category”, we are currently minded
to raise the threshold. It may be most appropriate to pitch the threshold at a sufficiently
high level that few, if any, of the posts above the threshold would, if considered by the
Independent Adjudicator, be judged on their individual circumstances as not warranting
being politically restricted.
|
| Q25. The Government would welcome views on this approach to designating posts as
politically restricted, and in particular on the level of any salary threshold.
|
| 98 As to the nature of the restrictions, there is broad comparability between local
government and the civil service (except that the civil service provides for “restricted
staff” to seek special permission to take part in political activity at local level). There are,
however, differences in the expression of these restrictions, perhaps in part due to the fact
that in the case of civil servants the restrictions are set out in a code, whilst for local
government they are specified in a statutory instrument. Thus, for example, the civil
service restriction takes the form of a prohibition not to “speak in public or publish
material on matters of political controversy”; the corresponding local government
restriction is not to “speak or publish written work with the intent to affect public
support for a political party”.
|
| 99 We accept that there may be advantage in framing restrictions in the same terms
where the intention is to achieve equivalent results. Whilst we believe that the restrictions
applicable to local government are satisfactorily specified, the more informal approach of a code, as followed by the civil service, may be more easily understood and applied by
individual employees and their managers. With our proposal for each council to adopt an
Employees Code for their staff, the possibility of dealing with political restrictions via a
code in local government becomes an option.
|
| 100 With this option we would envisage that the political restrictions to be applied to
council staff would be part of those mandatory provisions, specified in the national
model code approved by the Secretary of State and endorsed by Parliament, required
to be included in the Employees Codes of all councils. By this route appropriate
restrictions would remain part of the terms and conditions of employment of staff in
“restricted posts”.
|
| Q26. The Government would welcome views on the nature both of the restrictions which
are applied, and the means for specifying and applying those restrictions.
|
Whistleblowing
|
101 The Government is firmly committed to protecting workers who become aware of
wrongdoing, dangers or failures in the workplace, and who seek to bring attention to
their concerns. A Bill is currently before Parliament – the Public Interest Disclosure Bill –
which would, if enacted, introduce new protections under employment law for
individuals who disclose certain information (such as concerns about criminal offences,
failures to comply with legal obligations, miscarriages of justice, health and safety and
environmental dangers) in the public interest, and would allow them to bring actions in
respect of victimisation. The Government is supporting this Bill.
|
| 102 The Nolan Report draws attention to the existing high standards of openness
imposed on local government by statute, but expresses some doubts that these are
everywhere observed. The Government regard openness as a key element of the process
of rebuilding trust between councils and their communities, and accept the Nolan
Report’s recommendation that there should be an established procedure for
whistleblowing. Any such procedure should provide a genuine recourse for legitimate
representations without encouraging a climate in which they become malicious, trivial or
routine, and should include both internal and external arrangements. We propose that
these arrangements should operate independently of councillors, although it may be
appropriate for Standards Committees to receive, with suitable safeguards, information
about numbers of representations and the action proposed to be taken on them.
|
| 103 We accept the Nolan Report’s recommendation that these arrangements should extend, with appropriate variations, to staff of contracting organisations. Such
arrangements should be carefully confined to those areas of activity relating specifically
to contractors’ relationships with councils, and should not extend to contractors’
internal arrangements.
|
| 104 We propose to discuss with the Convention of Scottish Local Authorities how the
existing “whistleblowing arrangements” in the National Code of Conduct for Local
Government Employees in Scotland can be amended to meet the recommendations of the
Nolan Report.
|
Complaints Procedures
|
106 We have already stressed our conviction that public confidence in the probity of
local government relies on the conduct of both members and officers. That confidence
will be undermined if there is any suggestion that officers are able to reap undue
personal benefits on moving from local government into the private sector. It may also be
undermined if staff use information they have gained while in local authority service, for
the benefit of a new employer. We therefore agree with the Nolan Report that greater
clarity is needed about the position of staff moving from local authorities to contractors
and potential contractors.
|
| 107 The Report’s recommendations reflect either the possibility of using restrictive
covenants, or an approach which the Society of Local Authority Chief Executives
(SOLACE) proposed, that any contractor tendering for work from a council, should
include information in their tender about any former member of a council’s staff who
had taken part in, or advised on, the work connected with that tender.
|
| 108 Neither of these approaches is without potential problems. The use of restrictive
covenants, aiming to prevent council staff from joining private sector firms which will
compete for contracts from that council, runs the risk of being in law unenforceable. The
Nolan Report comments that the use of such covenants is relatively new and has not
been tested in practice. The Report comments that “while it must always be for the
courts to decide the facts in an individual case, we believe that any restraint should be
balanced against the wider considerations of probity in public life”. As regards the
requiring of information in tenders, essentially using stipulations in the contracting
process, any council adopting such an approach would need to avoid acting in such a way
as could be considered to distort or prevent competition.
|
| 109 The Nolan Report clearly took the view that whilst these were largely untried
measures, there was reasonable prospect in appropriate circumstances of their being
successfully applied. These prospects would seem to be greatest where the conflicts of
interest, which the measures were designed to resolve, were the sharpest.
|
| Q27. The Government would welcome comments on the approaches to the movement of
staff suggested by the Nolan Report, and would particularly be interested to hear
from councils and others of their experiences of using these and similar measures.
|
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