Making a complaint

19th June 2023

Making a Complaint

We’ve noted in previous blogs, the importance of those elected and appointed to serve as local government councillors and board members of public bodies adhering to the key principles of public life and complying with their Codes of Conduct.

But what happens if they don’t?

Well… anyone can make a complaint about the conduct of a councillor or a member of a public body in Scotland. We would encourage anyone who is considering making a complaint to firstly review the Codes of Conduct, to check that the conduct they are concerned about is covered. Both the Councillors’ Code of Conduct and the Model Code of Conduct for Members of Devolved Public Bodies (upon which the individual public body Codes are based) can be found here.

https://www.standardscommissionscotland.org.uk/codes-of-conduct

It should be noted that a breach of one or more of the key principles, listed in Section 2 of the Codes, does not in itself constitute evidence of a breach of a Code. The key principles can be used by the Ethical Standards Commissioner’s office (in its investigatory role) and the Standards Commission (in its adjudicatory role) to assist with interpretation of alleged breaches of the substantive sections of the Code, being Sections 3 to 7 and Annex A inclusive.

Any potential complainer should also consider whether the Code would apply to the councillor or member at the time of the events in question. As noted in Section 1 of the Codes, the Codes do not apply to a councillor’s or member’s family or private life. They only apply if the councillor or member, at the time of the events in question:

• is acting as a councillor or member of their public body,
• has identified themselves as a councillor or member of their public body; or
• could objectively be acting as a councillor or member of the public body.

Complaints are made to the Ethical Standards Commissioner (ESC), who is a separate and distinct officeholder responsible for investigating complaints that councillors and members of devolved public bodies have breached their respective Codes of Conduct. Information about how to make a complaint can be found on the ESC’s website at: https://www.ethicalstandards.org.uk

On receipt of a complaint, the ESC will check if it is eligible for investigation. All complaints about councillors and members of devolved public bodies will be investigated unless:

1. The councillor or member of a devolved public body (a) died prior to the complaint having been made; or (b) is an incapable adult within the meaning of the Adults with Incapacity (Scotland) Act 2000.
2. The conduct that has or is alleged to have contravened the Code occurred (or in the case of a course of conduct ended) more than one year before the complaint was received.
3. The conduct referred to in the complaint would not, even if it could be established to have occurred, constitute a contravention of the applicable Code.

Further information about how the ESC investigates cases is contained in their Investigations Manual, which can be found on their website here. 

The ESC sends a report to the Standards Commission on the conclusion of their investigation.

On receipt of a report from the ESC, the Standards Commission can choose to:

• Hold a Hearing;
• Direct the ESC to carry out further investigations; or
• Do neither (i.e. take no further action on the complaint). 

Hearings are held to determine whether the councillor or member concerned (known as the Respondent) has breached their respective Code of Conduct and if so, to decide the sanction to be applied. 

Hearing Panels comprise of three members of the Standards Commission. The ESC will present evidence and/or make submissions at the Hearing about why they consider the Respondent has contravened their Code. The Respondent is entitled to attend or be represented at the Hearing and can also present evidence and make submissions. Witnesses can be called by the ESC and the Respondent. Under the 2000 Act, the Standards Commission has a statutory power to require witnesses to appear and give evidence. 

Once it has heard all the evidence and submissions, the Hearing Panel will make a determination about whether it is satisfied, on the balance of probabilities, that there has been a contravention of the applicable Code of Conduct by the Respondent. The Panel is obliged to impose a sanction if it concludes that the Respondent has breached their Code of Conduct.

Hearings are normally held in public at the headquarters of the Respondent’s respective council or devolved public body. Hearings can also be held online. If a Hearing is held online, it will be livestreamed on the Standards Commission’s website. 

Written decisions of Hearings are published on the Standards Commission’s website at:

https://www.standardscommissionscotland.org.uk/cases/case-list

The sanctions that can be imposed following a breach of a Code of Conduct are as follows:

• Censure: A censure is a formal record of the Standards Commission’s severe and public disapproval of the Respondent.
• Suspension: This can be a full or partial suspension (for up to one year). A full suspension means that the Respondent is suspended from attending all meetings of the council or devolved public body. Partial suspension means that the Respondent is suspended from attending some of the meetings of the council or devolved public body.
•  Disqualification: In the case of a councillor, disqualification means that the Respondent is disqualified from holding office or standing for election as a councillor for the period determined (which can be up to five years). The disqualification extends to the councillor’s membership of any joint committee, joint board or other body on which they are a representative or nominee of their council.

In the case of a member of a devolved public body, a disqualification means the Respondent is removed from membership of the body for the period determined (which can be up to five years).

The Hearing Panel can also choose to disqualify the councillor or member from membership of any other devolved public body of which they are a member.