Ethical Standards in Public Life etc. (Scotland) Act 2000

PART 1 S CODES OF CONDUCT ETC.

1 Code of conduct for councillorsS

(1)The Scottish Ministers (“Ministers”) shall issue a code of conduct for councillors (the “councillors’ code”).

(2)There shall be set out in the councillors’ code principles and rules governing the conduct of councillors.

(3)These principles and rules shall include provision about the registration and declaration of the interests of councillors and their ineligibility to discuss or vote upon council business affecting these interests.

(4)Ministers may, in order to assist themselves in carrying out their duty under subsection (1) above, invite such association of councils as seems appropriate to them to draw up and send them a suggested councillors’ code.

(5)Ministers shall issue a councillors’ code only after it has been laid before and approved by a resolution of the Scottish Parliament.

(6)The councillors’ code shall have effect as from such date (not earlier than its issue) as Ministers fix.

(7)Ministers may revise or re-issue the councillors’ code; and subsections (4) to (6) above apply to any revisal or re-issue of the councillors’ code as they apply to its issue.

(8)In subsection (3) above—

• “interests” means pecuniary and non-pecuniary interests;

• “council business” includes matters under consideration by any body on which a councillor is a representative or nominee of a council.

2 Model code of conduct for members of devolved public bodiesS

(1)Ministers shall issue a model code of conduct for members of devolved public bodies (the “members’ model code”).

(2)There shall be set out in the members’ model code principles and rules governing the conduct of members of devolved public bodies.

(3)These principles and rules shall include provision about the registration and declaration of the interests of members of devolved public bodies and their ineligibility to discuss or vote upon business of these bodies affecting these interests.

(4)Ministers shall issue the members’ model code only after it has been laid before and approved by a resolution of the Scottish Parliament.

(5)Ministers may revise or re-issue the members’ model code; and subsection (4) above applies to any revisal or re-issue of the members’ model code as it applies to the issue of the code.

(6)The members’ model code may, for the purposes of sections 3(5) and 25(5) below, distinguish between those of its provisions which are mandatory and those which are optional.

(7)In subsection (3) above, “interests” means pecuniary and non-pecuniary interests and the reference to the business of devolved public bodies shall, in relation to a member of such a body, be construed as including a reference to matters under consideration by any other body on which the member is a representative or nominee of the devolved public body.

3 Codes of conduct for members of devolved public bodiesS

(1)Each devolved public body shall, within the stipulated time limit, submit to Ministers a draft of a code of conduct for its members (a “draft members’ code”).

(2)In subsection (1) above, the “stipulated time limit” is such time limit, being not earlier than three months after the making of the order under this subsection, as is stipulated in relation to each devolved public body by order made by Ministers.

(3)Such an order shall be made by statutory instrument.

(4)A statutory instrument made under this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(5)A draft members’ code—

(a)shall incorporate such mandatory provisions of the members’ model code as apply to the body submitting it;

(b)may incorporate any optional provisions of the members’ model code;

(c)may include such other provisions as are consistent with that code.

(6)Ministers—

(a)may, with or without modifications made by them, approve a draft members’ code submitted to them;

(b)may substitute for a draft members’ code submitted to them a code of their own devising;

(c)shall, if a body fails to submit a draft members’ code in accordance with subsection (1) above, devise a code for that body.

(7)Ministers shall, when approving, substituting or devising a code under subsection (6) above, have regard to the members’ model code.

(8)Once a code has been approved, substituted or devised under subsection (6) above, it shall be called a “members’ code”.

(9)Any reference in the following provisions of this Act to the members’ code is, in relation to a devolved public body, a reference to the members’ code applicable to members of that body.

(10)A members’ code shall have effect as from such date as Ministers fix.

(11)Ministers shall, prior to the date fixed for the coming into effect of a members’ code, intimate that date to the devolved public body.

4 Revisal etc. of members’ codesS

(1)A devolved public body—

(a)may; and

(b)on being so required by Ministers and within such time as they direct, shall,

submit to them a draft revisal or re-issue of the members’ code.

(2)Ministers—

(a)may, with or without modifications made by them, approve a draft revisal or re-issue submitted to them under subsection (1) above;

(b)may substitute for a draft revisal or reissue submitted to them a revisal or re-issue of their own devising;

(c)shall, if a body fails to submit a draft revisal or re-issue in accordance with a requirement under subsection (1)(b) above, themselves revise or re-issue the members’ code.

(3)Ministers shall impose a requirement under subsection (1)(b) above on a devolved public body if it appears to them that the members’ code is not, or is no longer, consistent with the members’ model code (or that code as revised or re-issued) as it applies to the body.

(4)Where, however, in the case mentioned in subsection (3) above, Ministers consider it expedient in the public interest to do so, they may, without previously imposing the requirement under subsection (1)(b) above, themselves revise or re-issue the members’ code.

(5)Ministers shall, when approving, substituting, revising or re-issuing a code under subsection (2) or revising or re-issuing a code under subsection (4) above, have regard to the members’ model code.

(6)Subsections (9) to (11) of section 3 above apply in relation to the coming into effect of a revisal or re-issue of a members’ code as they apply to the coming into effect of the members’ code.

5 Duties of councils and devolved public bodiesS

(1)Every council shall, in accordance with any guidance issued for the purposes of this section by the Standards Commission for Scotland established by section 8 below—

(a)promote the observance by its councillors of high standards of conduct; and

(b)assist them to observe the councillors’ code.

(2)Every devolved public body shall, in accordance with any such guidance—

(a)promote the observance by its members of high standards of conduct; and

(b)assist them to observe the members’ code.

6 Issue of guidance by Standards CommissionS

(1)The Commission shall issue guidance to councils and devolved public bodies on its relationship with them in the carrying out of its functions under this Act.

(2)Before issuing any such guidance, the Commission shall consult such association of local authorities and any such other bodies or persons as it thinks fit.

7 Register of interestsS

(1)Every council and every devolved public body shall set up, maintain and make available for public inspection a register of such interests as, respectively—

(a)under the councillors’ code, its councillors; and

(b)under the members’ code, its members,

are required to register.

(2)The duties under subsection (1) above shall be carried out in accordance with such regulations as may be made by Ministers for the purposes of this section and such guidance as may be issued by the Standards Commission for Scotland for those purposes.

(3)In the event of any conflict between those regulations and that guidance, the regulations shall prevail.

(4)Those regulations shall be made by statutory instrument.

(5)A statutory instrument made under this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

PART 2 S ENFORCEMENT

8 Standards Commission for ScotlandS

(1)There shall be a Standards Commission for Scotland (“the Commission”).

(2)Its functions shall be—

(a)those functions given to it by this Act; and

(b)any others relating to the conduct of councillors and members of devolved public bodies given to it by order made by Ministers.

(3)Its members, of whom there shall be not fewer than three, shall be appointed by [F1 the Parliamentary corporation—

(a)after consulting such association of councils and such other persons as the Parliamentary corporation thinks appropriate; and

(b)with the agreement of the Parliament.]

(4)Schedule 1 to this Act provides further about the Commission.

[F2(4A)Ministers shall consult the Parliamentary corporation and the Commission before making an order under subsection (2)(b).]

(5)An order under subsection (2)(b) above shall be made by statutory instrument.

[F3(6)No statutory instrument may be made under this section unless a draft of it has been laid before and approved by the Parliament.]

(7)Different provision may be made under subsection (2)(b) above as respects councillors and as respects members of devolved public bodies.

(8)The Commission shall, in relation to those of its functions which affect matters within the functions of—

(a)the Accounts Commission for Scotland; or

[F4(b)the Scottish Public Services Ombudsman,]

consult that other Commission or, as the case may be, that [F5Ombudsman] .

[F69 [F7Commissioner for Ethical Standards in Public Life in Scotland] to investigate breaches of codesS

It is the duty of the [F8Commissioner for Ethical Standards in Public Life in Scotland] (the “Commissioner”) to investigate and report to the Commission on cases in which a councillor or member of a devolved public body has, might have or is alleged to have contravened the councillors' or, as the case may be, the members' code.]

10 Relationship between Commission and [F9Commissioner for Ethical Standards in Public Life in Scotland] S

(1)The [F10Commissioner] shall, subject to subsection (2) below, in carrying out the [F11Commissioner's functions under this Act], comply with any directions given by the Commission.

(2)The Commission shall not, however, direct the [F10Commissioner] as to how [F12the Commissioner] carries out any investigation.

11 [F13Commissioner for Ethical Standards in Public Life in Scotland] to provide Commission with informationS

The [F14Commissioner] shall provide the Commission with such information concerning the discharge of [F15the Commissioner's] functions [F16under this Act] as the Commission requires.

12 Conduct of [F17F18... Commissioner's] investigationsS

(1)Subject to section 10 above and subsection (2) below, it is for the [F19Commissioner] to decide whether, when and how to carry out any investigation.

(2)Investigations shall, so far as possible, be conducted confidentially.

(3)An investigation may take place notwithstanding that the person whose conduct is to be investigated is no longer a councillor or, as the case may be, a member of a devolved public body.

F20(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)If it appears to the [F19Commissioner] that an investigation being carried out under this section will not be completed within three months of the date on which it began, [F21the Commissioner] shall, in writing, inform—

(a)the Commission;

(b)the councillor or member whose contravention, or possible or alleged contravention, of the councillors’ or, as the case may be, members’ code is the subject of the investigation; and

(c)the council or devolved public body,

of that fact.

(6)Investigations shall, so far as is possible, only be undertaken in response to allegations of misconduct which are made in writing and signed by the complainant.

13F22[F23... Commissioner's] powersS

(1)For the purposes of an investigation, the [F24Commissioner]—

(a)may require any person who, in the opinion of [F25the Commissioner], is able to give relevant information or produce relevant documents to do so; and

(b)shall have the same powers as the Court of Session to enforce the attendance and examination of witnesses and the production of documents.

(2)No person, however, shall be compelled to give any evidence or produce any documents which that person could not be compelled to give or produce in civil proceedings in the Court of Session.

(3)If, without reasonable excuse, any person obstructs the [F24Commissioner] in the performance of [F26the Commissioner's] functions or does anything in relation to an investigation which, had that investigation been proceedings in the Court of Session, would be contempt of court, the Chief Investigating Officer may certify that conduct to the Court of Session.

(4)Where a person’s conduct is so certified, the Court of Session may deal with the person as if any such conduct as occurred had taken place in relation to that Court.

(5)In this section “documents” includes information held by means of a computer or in any other electronic form.

14[F27F28... Commissioner's] reportsS

(1)Subject to section 10 above, it is for the [F29Commissioner] to decide whether to report to the Commission on the outcome of any investigation.

(2)No report concluding that a councillor or a member of a devolved public body has contravened the councillors’ or, as the case may be, the members’ code shall be submitted to the Commission unless the councillor or member has been given a copy of the proposed report and an opportunity to make representations on the alleged contravention and on the proposed report.

(3)At the same time as the [F29Commissioner] gives a copy of a proposed report to a councillor or a member of a devolved public body for the purposes of subsection (2) above, [F30the Commissioner] shall give a further copy to the council or, as the case may be, the devolved public body.

15 Publication of reportsS

The Commission may publish a report submitted to it under section 14 above, and may do so in whatever way and send it to whomever it thinks fit.

16 Action on receipt of reportsS

On receiving a report from the [F31Commissioner], the Commission may—

(a)direct [F32the Commissioner] to carry out further investigations;

(b)hold a hearing; or

(c)do neither,

and, where it acts under paragraph (a) or (b) above, may do so at any time.

17 Hearings before CommissionS

(1)Subject to subsections (2) to (10) below, the procedure at a hearing held under section 16(b) above shall be such as the Commission determines.

(2)The Commission may, at any one hearing, consider alleged contraventions of the councillors’ code by more than one councillor or of the members’ code by more than one member of a devolved public body.

(3)A hearing shall be conducted by not fewer than three members of the Commission selected by the convener of the Commission.

(4)A councillor or member of a devolved public body whose conduct is being considered by a hearing is entitled to be heard there either in person or represented by counsel or a solicitor or any other person.

(5)The members of the Commission conducting a hearing may—

(a)require any person to attend the hearing, give evidence and produce documents;

(b)administer oaths.

(6)A person shall not, however, be compelled to give any evidence or produce any documents which that person could not be compelled to give or produce in civil proceedings in the Court of Session.

(7)A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (5)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(8)The Commission may pay persons appearing at a hearing or attending it for the purpose of giving evidence or producing documents such expenses or allowances as it [F33, with the approval of the Parliamentary corporation, determines].

(9)A hearing shall be held in public unless the members of the Commission conducting it determine that it is in the public interest that it, or such part of it as they specify for the purposes of this subsection, be not so held.

(10)In this section, “documents” shall be construed as in section 13 above.

18 Findings of hearingsS

(1)The members of the Commission conducting a hearing shall state their findings in writing and give a copy to—

(a)the councillor or member of a devolved public body whose contravention, or possible or alleged contravention, of the councillors’ or, as the case may be, the members’ code was the subject of the hearing;

(b)the council or the devolved public body;

(c)any person the Commission considers should, under this paragraph, receive a copy; and

(d)any other person seeking a copy who has paid the Commission’s reasonable charge for providing it.

(2)A council or devolved public body receiving a copy of findings under subsection (1) above shall consider those findings within three months of receiving them or within such longer period as the Commission may specify in writing.

(3)The duty imposed on a council or devolved public body by subsection (2) above shall be discharged only by that council or body and not by a committee or sub-committee or an officer.

19 Action on finding of contraventionS

(1)Where the members of the Commission conducting a hearing find that a councillor has contravened the councillors’ code or a member of a devolved public body the members’ code, they shall impose one of the following sanctions—

(a)censuring, but otherwise taking no action against, the councillor or member;

(b)suspending, for a period not exceeding one year, the councillor’s or member’s entitlement to attend one or more but not all of the following—

(i)all meetings of the council or body;

(ii)all meetings of one or more committees or sub-committees of the council or body;

(iii)all meetings of any other body on which the councillor or member is a representative or nominee of the council or body;

(c)suspending, for a period not exceeding one year, the councillor’s or member’s entitlement to attend meetings of the council or body and of any committee or sub-committee thereof and of any other body on which the councillor or member is a representative or nominee of the council or body;

(d)in the case of a councillor, disqualifying the councillor for a period not exceeding five years, from being, or from being nominated for election as, or from being elected, a councillor;

(e)in the case of a member of a devolved public body, removing the member from membership of the body and disqualifying the member, for a period not exceeding five years, from membership of the body.

(2)A period of suspension imposed under subsection (1)(b) or (c) above which would continue until or after the day of the next following ordinary election of councillors shall end at the beginning of that day.

(3)Disqualification imposed under subsection (1)(d) above—

(a)has the effect of vacating the councillor’s office; and

(b)extends to the councillor’s membership of committees and sub-committees of the council of which the councillor was a member and any joint committee, joint board or other body on which the councillor is a representative or nominee of the council.

(4)Where the members of the Commission disqualify, under subsection (1)(d) above, a councillor who is also a member of a devolved public body otherwise than as a representative or nominee of the council, they may also, in respect of that membership, remove and disqualify that person under subsection (1)(e) above F34. . . .

(5)The members of the Commission, on removing and disqualifying a member of a devolved public body under subsection (1)(e) above, may—

(a)where the member is a councillor, disqualify that person under subsection (1)(d) above;

(b)direct that the removal from membership and disqualification apply also in respect of any other devolved public body of which the member is a member; F35. . .

(c)F35. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)The members of the Commission may, on imposing a suspension under subsection (1)(b) or (c) above on a member of a devolved public body, direct that any remuneration or allowance deriving from membership of the body that would be payable to the member be not paid or be reduced as they direct.

(7)The powers to remove and disqualify a person from membership of a devolved public body under subsections (4) and (5)(b) above are exercisable as respects that body only after the members’ code applicable to that body first has effect.

(8)The Commission shall, after consulting such association of local authorities and any such other bodies or persons as it thinks fit, issue guidance to councils on the extent to which a councillor should engage in activities (other than those mentioned in subsection (1)(c) above) which are, or may be perceived to be, the activities of a councillor during a period of suspension.

20 Duty of Commission to provide informationS

The members of the Commission who are to conduct a hearing under section 16(b) above, shall, before doing so, give written notice to the councillor or member of the devolved public body whose contravention, or possible or alleged contravention, of the councillors’ or, as the case may be, the members’ code is to be the subject of the hearing, of—

(a)the procedure to be followed at the hearing; and

(b)the sanctions which may be imposed following a finding of a contravention of the councillors’ or, as the case may be, the members’ code by that councillor or member.

21 Interim reports on investigations and action thereonS

(1)The [F36Commissioner] may, and, if so directed by the Commission, shall, submit an interim report on an investigation being conducted by [F37the Commissioner].

(2)On receiving an interim report, the Commission, if it is satisfied—

(a)that the further conduct of the investigation is likely to be prejudiced if the sanction mentioned in subsection (3) below is not imposed; or

(b)that otherwise it would be in the public interest to impose that sanction,

then it may impose that sanction.

(3)That sanction is suspending the councillor or member of the devolved public body whose alleged contravention of the councillors’ code or, as the case may be, the members’ code was the subject of the interim report from the entitlement set out in section 19(1)(c) above for a period not exceeding three months.

(4)The Commission shall not require to hold a hearing before proceeding to impose that sanction, but shall give the councillor or member an opportunity to make representations on the alleged contravention of the councillors’ code or, as the case may be, the members’ code and on the interim report.

(5)The Commission shall put its decision under this section in writing and shall give a copy to—

(a)the councillor or member;

(b)the council or devolved public body of which that person is a member; and

(c)any other person seeking a copy of the decision who has paid the Commission’s reasonable charges for providing such a copy.

(6)A period of suspension imposed under this section ends upon—

(a)the issue of findings under section 18 above that the councillor or member has not contravened the councillors’ code or, as the case may be, the members’ code;

(b)the imposition of a sanction under section 19 above; or, as the case may be,

(c)a decision by the Commission under section 16(c) above not to hold a hearing.

(7)A period of suspension imposed upon a councillor under this section which would continue until or after the day of the next following ordinary election of councillors ends at the beginning of that day.

(8)If, however, the councillor is re-elected at that election, the Commission may re-impose the suspension.

(9)The period for which suspension may be re-imposed under subsection (8) above is that for which it would have continued to apply but for subsection (7) above.

(10)On the expiry (otherwise than by operation of subsection (6) or (7) above) of a period of suspension, it may be renewed by the Commission for a period not exceeding three months and a renewed period may likewise be further renewed.

(11)Where, but for suspension under this section—

(a)a councillor would be entitled to receive basic allowance and special responsibility allowance from the council; or

(b)a member of a devolved public body would be entitled to receive a salary or daily or other periodic allowance or other payment having the character of remuneration or an honorarium from the devolved public body,

the suspension under this section shall not affect that entitlement; but nothing in this subsection authorises the payment or reimbursement of travelling, subsistence or other allowances or expenses.

(12)In subsection (11) above “basic allowance” and “special responsibility allowance” are the respective allowances referred to in section 18(1)(a) and (c) of the Local Government and Housing Act 1989 (c.42).

22 Appeals from CommissionS

(1)A councillor or member of a devolved public body—

(a)who is the subject of a finding under section 18 above of a contravention of the councillors’ or, as the case may be, the members’ code;

(b)on whom a sanction under section 19(1)(b) to (e), (4) or (5) above has been imposed; or

(c)who has been suspended under section 21(2) above,

may appeal to the sheriff principal of the sheriffdom in which the relevant council or devolved public body has its principal office.

(2)The relevant council or, as the case may be, devolved public body is—

(a)in the case, where—

(i)a finding of a contravention of the councillors’ or the members’ code has been made under section 18 above;

(ii)a sanction under section 19(1) above has been imposed following such a finding;

(iii)a sanction under section 19(4) or (5) above has been imposed following such a finding,

the council or devolved public body to which the finding relates;

(b)where suspension under section 21(2) above has been imposed, the council or devolved public body from which the councillor or member has been suspended;

(c)where the appeal is in respect of findings which relate to more than one council or devolved public body, any one of those councils or devolved public bodies.

(3)An appeal—

(a)under subsection (1)(a) above may be made on one or more of the following grounds—

(i)that the Commission’s finding was based on an error of law;

(ii)that there has been procedural impropriety in the conduct of any hearing held under section 16(b) above;

(iii)that the Commission has acted unreasonably in the exercise of its discretion;

(iv)that the Commission’s finding was not supported by the facts found to be proved by the Commission;

(b)under subsection (1)(b) above, may be made on one or both of the following grounds—

(i)that the sanction imposed was excessive;

(ii)that the Commission has acted unreasonably in the exercise of its discretion;

(c)under subsection (1)(c) above, may be made only on the ground that the Commission has acted unreasonably in the exercise of its discretion.

(4)An appeal under subsection (1) above shall be lodged within 21 days of—

(a)the sending of the finding under section 18 above to the councillor or member;

(b)the imposition of the sanction under section 19(1) above; or, as the case may be,

(c)the imposition of the suspension under section 21(2) above.

(5)A finding made or sanction imposed by the Commission continues to have effect notwithstanding the lodging of an appeal under subsection (1) above.

(6)The sheriff principal may—

(a)in an appeal under subsection (1)(a) above—

(i)confirm the finding under section 18 above;

(ii)quash the finding;

(iii)quash the finding and remit the matter to the Commission to reconsider its decision;

(b)in an appeal under subsection (1)(b) above—

(i)confirm the sanction;

(ii)quash the sanction and either substitute a lesser sanction or remit the matter back to the Commission;

(c)in an appeal under subsection (1)(c) above, quash the suspension;

(d)award expenses.

(7)The decision of the sheriff principal under subsection (1) above is a final judgment for the purposes of [F38section 114(1) (appeal from the sheriff principal to the Court of Session) of the Courts Reform (Scotland) Act 2014].

(8)In an appeal from the sheriff principal by virtue of subsection (7) above, the Court of Session has the powers specified in subsection (6) above.

(9)The Commission may be a party to any appeal under subsection (1) above and in any appeal from the decision of the sheriff principal.

23 Special provision for enforcement and suspension in case of Crown appointmentsS

(1)Sections 19, 21(2) and 22 above do not apply in the case of members of devolved public bodies who have been appointed by Her Majesty.

(2)Where the members of the Commission conducting a hearing under section 16(b) above find that a member of a devolved public body so appointed has contravened the members’ code they shall submit to the First Minister a recommendation under subsection (3) below.

(3)That recommendation is that there be imposed on the member such sanction as is specified in the recommendation (being one of those which may be imposed under subsection (1) of section 19 above on a member of a devolved public body who has been appointed otherwise than by Her Majesty) together with any such direction as is so specified (being one of those which may be made under that section in respect of such a member).

(4)A recommendation under subsection (3) above having been made, Her Majesty may, on the advice of the First Minister—

(a)impose on the member who is the subject of the recommendation any sanction; and

(b)in that respect, make any direction,

which could, under section 19 above, be imposed on or made in respect of a member of a devolved public body who was appointed otherwise than by Her Majesty.

(5)Where the [F39Commissioner] submits an interim report under section 21(1) above in respect of a contravention of the members’ code by a member of a devolved public body who has been appointed by Her Majesty, the Commission may submit to the First Minister a recommendation under subsection (6) below.

(6)That recommendation is that the member be suspended from the entitlement set out in section 19(1)(c) above for a period not exceeding three months.

(7)A recommendation under subsection (6) above having been made, Her Majesty may, on the advice of the First Minister, impose any suspension on a member who is the subject of the recommendation which could, under section 21 above, be imposed on a member of a devolved public body who was appointed otherwise than by Her Majesty.

(8)A period of suspension imposed under subsection (7) above ends upon—

(a)the issue of findings under section 18 above that the member has not contravened the members’ code;

(b)the imposition of a sanction under this section; or, as the case may be,

(c)a decision by the Commission under section 16(c) above not to hold a hearing.

(9)On the expiry (otherwise than by operation of subsection (8) above) of a period of suspension it may be renewed by Her Majesty, on the advice of the First Minister, for a period not exceeding three months and a renewed period may likewise be further renewed.

24 Special provision for employee and ex officio members of devolved public bodiesS

(1)Sections 16 to 19, 21 (other than subsection (1)) and 22 of this Act do not apply in the case of a member of a devolved public body—

(a)who is also an employee; or

(b)who is an ex officio member,

of the body.

(2)On receiving—

(a)a report under section 14 above; or

(b)an interim report under section 21(1) above,

relating to such a member, the Commission shall send it to the devolved public body.

25 Special provision for the Water Industry CommissionerS

F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

26 Appeals by Water Industry CommissionerS

F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4227 Protection from actions of defamationS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 3 S GENERAL AND MISCELLANEOUS PROVISIONS RELATING TO PARTS 1 TO 3

28 DefinitionsS

(1)In Parts 1 and 2 and this Part of this Act—

• [F43“Commissioner” means the Commissioner for Ethical Standards in Public Life in Scotland;]

• “the Commission” means the Standards Commission for Scotland set up by section 8 above;

• “council” means a council constituted by section 2 of the Local Government etc. (Scotland) Act 1994 (c.39);

• “councillor” shall be construed accordingly;

• “councillors’ code” means the code of conduct for councillors for which provision is made in section 1 above;

• “devolved public body” means a body listed in schedule 3 to this Act;

• [F44“investigation” means an investigation under this Act;]

• “joint board” and “joint committee” have the meanings respectively given by section 235 of the Local Government (Scotland) Act 1973 (c.65);

• [F45“member”, in relation to the Scottish National Investment Bank p.l.c., means that company's directors (and “membership” is to be construed accordingly);]

• “members’ code” means a code of conduct for members of a devolved public body for which code provision is made in section 3 above;

• “members’ model code” means the model code for members of devolved public bodies issued under section 2(1) above;

• “Ministers” means the Scottish Ministers.

(2)Ministers may by order modify schedule 3 to this Act by—

(a)adding to the bodies listed there any Scottish public authority with mixed functions or no reserved functions;

(b)deleting the entry relating to any body listed there.

(3)An order under subsection (2) above may contain such provisions as appear to Ministers to be necessary or expedient in connection with the addition or deletion effected by the order, including provisions modifying the application of this Act or any other enactment to the body to which the order relates.

(4)An order under subsection (2) above shall be made by statutory instrument.

(5)A statutory instrument made under this section shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

29 Suspension and disqualification of councillors: supplementary and consequential provisionsS

(1)In section 35 (vacation of office by failure to attend meetings) of the Local Government (Scotland) Act 1973 (c.65)—

(a)in subsection (1) for “(2) and (3)” there is substituted “ (2) to (4) ”; and

(b)at the end there is added—

“(4)The absence of a member of a local authority from a meeting of the authority during a period of suspension imposed on the member under section 103F or 103G of this Act or section 19 or 21(2) of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7) is not, for the purposes of this section, a failure to attend the meeting.”.

(2)In section 36 (casual vacancies) of that Act, in paragraph (c), after the word “principal” there is inserted “ or become vacant by operation of section 19(3)(a) (effect of disqualification) of the Ethical Standards in Public Life etc. (Scotland) Act 2000 (asp 7). ”.

30 Modification of enactments etc.S

(1)Ministers may, by order, make such modification as they consider necessary or expedient of any enactment or instrument governing the conduct of a councillor or a member of a devolved public body F46. . . or the tenure of office, suspension, removal from office, disqualification or discipline of any such person in order to make that enactment or instrument consistent with this Act and with the provisions of any code under it applicable to that person.

(2)An order under subsection (1) above shall be made by statutory instrument.

(3)No such order shall be made unless a draft of the statutory instrument has been laid before, and approved by a resolution of, the Scottish Parliament.

31 Preservation of previous law and rules in relation to members of devolved public bodiesS

Subject to sections 30 above and 36 below, nothing in this Act or in any code under it affects the continued operation in relation to a member of a devolved public body of any enactment or other provision governing the conduct of that member or that member’s tenure of office or the suspension, removal from membership, disqualification or discipline of that member.

PART 4 S CODES OF CONDUCT FOR MEMBERS OF OTHER BODIES

32 Codes of conduct for members of certain Scottish public authoritiesS

(1)Ministers shall issue (and may revise or reissue) a code or codes in respect of the conduct of members of such Scottish public authorities as are specified by Ministers by order.

(2)Where Ministers issue more than one such code, those codes may provide differently in respect of the members of different such authorities.

(3)Ministers shall, when preparing provisions for a code under this section, have regard to the members’ model code.

(4)Ministers shall not, in an order under this section, specify any authority which is a devolved public body.

(5)Ministers may, in such an order, define “member” for the purposes of this section and may do so differently in relation to different authorities.

(6)It is the duty of a member of an authority to which a code under this section applies to have regard to the provisions of the code in the carrying out of the member’s functions and activities as such.

(7)An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of the Scottish Parliament.

(8)In this section, “Ministers”, “devolved public body” and “members’ model code” have the same meanings as in Parts 1 to 3 of this Act.

PART 5 S FUNCTIONS OF CONTROLLER OF AUDIT AND ACCOUNTS COMMISSION FOR SCOTLAND

33 Procedure for special reports and modification of surcharge provisionsS

(1)In section 102 (reports to Accounts Commission for Scotland by Controller of Audit) of the Local Government (Scotland) Act 1973 (c.65)—

(a)in subsection (3), for “shall” there is substituted “ may ”;

(b)after subsection (3) there is inserted—

“(3A)No such special report shall, however, be so made unless—

(a)the authority; and

(b)any person named or referred to in the report—

(i)as being to blame in connection with an item of account being contrary to law; or

(ii)whose failure, negligence or misconduct is a subject of the report,

has been given a copy of the proposed report and an opportunity to make representations to the Controller on the proposed report and on any of the matters dealt with in it.”.

(2)In section 103 (action by Accounts Commission for Scotland on reports by Controller of Audit) of that Act—

(a)in subsection (1)—

(i)the words “Subject to subsection (2) below,” are repealed; and

(ii)after the words “any report” there is inserted “ , except a special report under section 102(3) of this Act, ”;

(b)subsections (2) to (5) are repealed.

(3)After section 103 of that Act there are inserted the following sections—

“103A Publication of special reports

The Commission may publish a special report made to it under section 102(3) of this Act, and may do so in whatever way and send it to whomever it thinks fit.

103B Action by Commission on receipt of special reports

(1)On receiving a special report under section 102(3) of this Act from the Controller of Audit, the Commission may—

(a)direct the Controller to carry out further investigations;

(b)hold a hearing;

(c)state a case on any question of law arising on the special report for the opinion of the Court of Session;

(d)subject to subsections (2) and (3) below, do none of the above.

(2)The Commission shall hold a hearing if requested to so in writing by—

(a)the local authority which was sent a copy of the report under section 102(3A) of this Act;

(b)any person, named or referred to in the report—

(i)as being to blame in connection with an item of account being contrary to law;

(ii)whose failure, negligence or misconduct is a subject of the report; or

(iii)who was sent a copy of the report under section 102(3A) of this Act.

(3)The Commission shall state a case under subsection (1)(c) above if directed to do so by the Court of Session.

103C Hearings on special reports

(1)Subject to subsections (2) to (12) below, the procedure at a hearing held under section 103B(1)(b) of this Act shall be such as the Commission determines.

(2)The Commission may, at any one hearing, consider—

(a)allegations of blame, in connection with an item of account being contrary to law, against; and

(b)failures, negligence or misconduct by,

more than one officer or member of a local authority.

(3)A hearing shall be conducted by not fewer than three members of the Commission selected by the chairman of the Commission.

(4)Notwithstanding paragraph 4(1) of Schedule 8 to this Act, for the purposes of this section, the quorum for a meeting of the Commission shall be three.

(5)The following—

(a)an officer or member—

(i)as to whom the question of blame in connection with an item of account being contrary to law is; or

(ii)whose alleged failure, negligence or misconduct is being considered by a hearing, is; and

(b)the local authority are,

entitled to be heard at the hearing.

(6)An officer or member entitled to be heard at a hearing shall be entitled to be heard either in person or represented by counsel or a solicitor or any other person.

(7)The members of the Commission conducting a hearing may—

(a)require any person, including officers or members or former officers or members of any local authority, to attend the hearing, give evidence and produce documents;

(b)administer oaths.

(8)A person shall not, however, be compelled to give any evidence or produce any documents which that person could not be compelled to give or produce in civil proceedings in the Court of Session.

(9)A person who, without reasonable excuse, fails to comply with a requirement imposed under subsection (7)(a) above is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(10)The Commission may pay persons appearing at a hearing or attending it for the purpose of giving evidence or producing documents such expenses or allowances as it thinks fit.

(11)A hearing shall be held in public unless the members of the Commission conducting it determine that it is in the public interest that it, or such part of it as they specify for the purposes of this subsection, be not so held.

(12)In this section, “documents” includes information held by means of a computer or in any other electronic form.

103D Findings of hearings

The members of the Commission conducting a hearing under section 103B(1)(b) of this Act shall state their findings in writing and give a copy to—

(a)any officer or member of the local authority who is or was blamed in connection with an item of account being contrary to law or whose failure, negligence or misconduct, or alleged failure, negligence or misconduct, was a subject of the hearing;

(b)the local authority;

(c)any other person the Commission considers should, under this paragraph, receive such a copy; and

(d)any other person seeking a copy of those findings who has paid the Commission’s reasonable charge for providing such a copy.

103E Action by local authorities on receipt of findings under section 103D

(1)A local authority receiving a copy of findings under section 103D of this Act shall consider those findings at a meeting of the authority within three months of receiving them or within such longer period as the Commission may specify in writing.

(2)The duty imposed on a local authority by subsection (1) above shall be discharged only by that authority and not by a committee or sub-committee or an officer.

(3)Where findings received by a local authority contain recommendations under section 103F(3)(b) of this Act, the authority shall decide—

(a)whether to accept any or all of those recommendations;

(b)what, if any, action to take in response to those recommendations.

(4)A meeting under subsection (1) above shall not be held unless, at least seven clear days before the meeting, there has been published, in a newspaper circulating in the area of the local authority concerned, a notice which—

(a)states the time and place of the meeting;

(b)indicates that the meeting is to be held in order to consider the findings of the Commission and any recommendations in those findings; and

(c)describes the nature of those findings and of any such recommendations.

(5)The local authority shall, as soon as practicable after that meeting—

(a)notify the Commission of any decisions made in pursuance of subsection (3) above; and

(b)publish, in a newspaper circulating in the area of the local authority, a notice containing a summary, approved by the Commission, of any such decisions.

(6)A notice under subsection (5)(b) above shall not need to summarise any decision made while the public were excluded from the meeting—

(a)under section 50A(2) of this Act (confidential matters) or in pursuance of a resolution under section 50A(4) of this Act (exempt information); but

(b)in a case where sections 50C and 50D of this Act (availability for inspection after meetings of minutes, background papers and other documents) apply in relation to the meeting, shall indicate the documents which, in relation to that meeting, are open for inspection in accordance with those sections.

(7)This section is without prejudice to any other duties (so far as they relate to the subject-matter of findings or recommendations sent to the authority) which are imposed by or under Part VII of this Act, section 5 of the Local Government and Housing Act 1989 (c.42) (functions of monitoring officers) or any other enactment.

103F Action on finding of failure, negligence or misconduct

(1)Where the members of the Commission conducting a hearing under section 103B(1)(b) of this Act find that—

(a)any item of account is contrary to law;

(b)there has been a failure on the part of any person to bring into account any sum which ought to have been brought into account;

(c)any loss has been incurred or deficiency caused by the negligence or misconduct of any person or by the failure of the local authority to carry out any duty imposed on them by any enactment;

(d)any sum which ought to have been credited or debited to one account of the local authority has been credited or, as the case may be, debited to another account of the authority and the Commission are not satisfied that the authority has taken or is taking such steps as may be necessary to remedy the matter,

they may, as appropriate, impose one of the sanctions specified in subsection (2) or make any of the recommendations in subsection (3) below.

(2)The sanctions which may be imposed under subsection (1) above are—

(a)censuring, but otherwise taking no action against, an officer or member of the authority;

(b)suspending, for a period not exceeding one year, the entitlement of a member of a local authority to attend one or more but not all of the following—

(i)all meetings of the local authority;

(ii)all meetings of one or more committees or sub-committees of the local authority;

(iii)all meetings of any other body on which the member is a representative or nominee of the local authority;

(c)suspending, for a period not exceeding one year, the entitlement of a member of a local authority to attend meetings of the local authority and of any committee or sub-committee thereof and of any other body on which the member is a representative or nominee of the local authority;

(d)disqualifying a member of a local authority for a period not exceeding five years, from being, or from being nominated for election as, or from being elected, such a member.

(3)In the case of a local authority, the Commission may—

(a)make recommendations to the Scottish Ministers that they make an order directing the authority to make such rectification of their accounts as appears to the Commission necessary;

(b)include in its findings any recommendations arising from those findings which the Commission think fit.

(4)A period of suspension imposed under subsection (2)(b) or (c) above which would continue until or after the day of the next following ordinary election of members shall end at the beginning of that day.

(5)Disqualification imposed under subsection (2)(d) above—

(a)has the effect of vacating the member’s office; and

(b)extends to membership of committees and sub-committees of the local authority of which the member was a member and any joint committee, joint board or other body on which the member is a representative or nominee of the local authority.

(6)The Commission shall, on making a recommendation under subsection (3)(a) above, forthwith send a copy of that recommendation to the local authority and to any person whom the Commission thinks fit.

(7)Where the Commission make recommendations to the Scottish Ministers under subsection (3)(a) above, Ministers may make an order giving effect to any recommendation, with or without modifications, or may decline to make such an order.

(8)A local authority shall give effect to any direction to them made in an order under subsection (7) above.

103G Interim reports on investigations and action thereon

(1)The Controller of Audit may submit an interim report on an investigation being conducted by that Controller under section 102(3) of this Act.

(2)On receiving an interim report, the Commission, if it is satisfied—

(a)that the further conduct of the investigation is likely to be prejudiced if the sanction mentioned in subsection (3) below is not imposed; or

(b)that otherwise it would be in the public interest to impose that sanction,

then it may impose that sanction.

(3)That sanction is suspending the member of the local authority whose alleged blame in connection with an item of account being contrary to law or whose alleged failure, negligence or misconduct was the subject of the interim report from the entitlement set out in section 103F(2)(c) of this Act for a period not exceeding three months.

(4)The Commission shall not require to hold a hearing before proceeding to impose that sanction, but shall give the member an opportunity to make representations on the allegations of blame, failure, negligence or misconduct and on the interim report.

(5)The Commission shall put its decision under this section in writing and shall give a copy to—

(a)the member;

(b)the authority; and

(c)any other person seeking a copy of the decision who has paid the Commission’s reasonable charges for providing such a copy.

(6)A period of suspension imposed under this section ends upon—

(a)the issue of findings under section 103D of this Act that the member was not to blame or has not failed, been negligent or been guilty of misconduct;

(b)the imposition of a sanction under section 103F of this Act or a decision not to impose such a sanction; or, as the case may be,

(c)a decision by the Commission under section 103B of this Act not to hold a hearing.

(7)A period of suspension imposed under subsection (2) above which would continue until or after the day of the next following ordinary election of members ends at the beginning of that day.

(8)If, however, the member is re-elected at that election, the Commission may re-impose the suspension.

(9)The period for which suspension may be re-imposed under subsection (8) above is that for which it would have continued to apply but for subsection (7) above.

(10)On the expiry (otherwise than by operation of subsection (6) or (7) above) of a period of suspension, it may be renewed by the Commission for a period not exceeding three months and a renewed period may likewise be further renewed.

(11)Where, but for the suspension under this section, a member would be entitled to receive basic allowance and special responsibility allowance from the authority, the suspension shall not affect that entitlement; but nothing in this subsection authorises the payment or reimbursement of travelling, subsistence or other allowances or expenses.

(12)In subsection (11) above, “basic allowance” and “special responsibility allowance” are the respective allowances referred to in section 18(1)(a) and (c) of the Local Government and Housing Act 1989 (c.42).

103H Protection from actions of defamation

(1)For the purposes of the law of defamation, any statement made by the Commission or any of its agents or staff of Audit Scotland provided for the Commission under section 10(3) of the Public Finance and Accountability (Scotland) Act 2000 (asp 1) or by the Controller of Audit shall be absolutely privileged.

(2)In subsection (1) above “statement” has the same meaning as in the Defamation Act 1996 (c.31).

103J Appeals from Commission

(1)An officer or member of a local authority—

(a)who is the subject of a finding under section 103F(1) of this Act;

(b)on whom a sanction under section 103F(2)(a), (b) or (c) of this Act has been imposed;

(c)who has been suspended under section 103G(2) of this Act,

may appeal to the sheriff principal of the sheriffdom in which the authority has its principal office.

(2)An appeal—

(a)under subsection (1)(a) above may be made on one or more of the following grounds—

(i)that the Commission’s finding was based on an error of law;

(ii)that there has been procedural impropriety in the conduct of any hearing held under section 103B(1)(b) of this Act;

(iii)that the Commission has acted unreasonably in the exercise of its discretion;

(iv)that the Commission’s finding was not supported by the facts found to be proved by the Commission;

(b)under subsection (1)(b) above may be made on one or more of the following grounds—

(i)that the sanction imposed was excessive;

(ii)that the Commission has acted unreasonably in the exercise of its discretion;

(c)under subsection (1)(c) above may be made only on the ground that the Commission has acted unreasonably in the exercise of its discretion.

(3)An appeal under subsection (1) above shall be lodged within 21 days of—

(a)the sending of the finding under section 103F(1) of this Act to the officer or member;

(b)the imposition of the sanction under section 103F(2) of this Act; or, as the case may be,

(c)the imposition of suspension under section 103G(2) of this Act.

(4)A finding made or sanction imposed by the Commission continues to have effect notwithstanding the lodging of an appeal under subsection (1) above.

(5)The sheriff principal may—

(a)in an appeal under subsection (1)(a) above—

(i)confirm the finding under section 103F(1) of this Act;

(ii)quash the finding;

(iii)quash the finding and remit the matter to the Commission to reconsider its decision;

(b)in an appeal under subsection (1)(b) above—

(i)confirm the sanction;

(ii)quash the sanction and either substitute a lesser sanction or remit the matter back to the Commission;

(c)in an appeal under subsection (1)(c) above, quash the suspension;

(d)award expenses.

(6)The decision of the sheriff principal under subsection (1) above is a final judgment for the purposes of section 28 (appeals to the Court of Session) of the Sheriff Courts (Scotland) Act 1907 (c.51).

(7)In an appeal from the sheriff principal by virtue of subsection (6) above, the Court of Session has the powers specified in subsection (5) above.

(8)The Commission may be a party to an appeal under subsection (1) above and in any appeal from the decision of the sheriff principal.”.

(4)Section 104 (action by Scottish Ministers on recommendation by Commission) of that Act is repealed.

PART 6 S TEACHING AND WELFARE OF CHILDREN

34 Repeal of section 2A of Local Government Act 1986S

Section 2A (prohibition on local authorities’ activities in connection with same-sex relationships) of the Local Government Act 1986 (c.10) is repealed.

35 Councils’ duties to childrenS

(1)It is the duty of a council, in the performance of those of its functions which relate principally to children, to have regard to—

(a)the value of stable family life in a child’s development; and

(b)the need to ensure that the content of instruction provided in the performance of those functions is appropriate, having regard to each child’s age, understanding and stage of development.

(2)In this section—

• “children” means persons of school age within the meaning of section 31 of the Education (Scotland) Act 1980 (c.44) and “child’s” in subsection (1)(b) is to be construed accordingly;

• “council” has the same meaning as in Parts 1 and 2 of this Act.

PART 7 S GENERAL AND MISCELLANEOUS PROVISIONS RELATING TO PARTS 1 TO 6

36 Other repealsS

(1)The enactments specified in the left hand column of schedule 4 to this Act are repealed to the extent specified in the right hand column.

(2)The repeal of section 39 (meaning of pecuniary interests) of the Local Government (Scotland) Act 1973 (c.65) does not, however, extend to that section as it has effect for the purposes of section 68(1) (disclosure by local government officers of their pecuniary interests) of that Act.

37 Short title, commencement and transitional provisionS

(1)This Act may be cited as the Ethical Standards in Public Life etc. (Scotland) Act 2000.

(2)This Act (other than this section) comes into force on such day as Ministers may by order made by statutory instrument appoint; and different days may be so appointed for different purposes.

(3)An order under subsection (2) above may include such transitional provisions and savings as appear to Ministers to be necessary or expedient in connection with the provisions brought into force by the order.