Multiple Roles: Conflicts of Interest?

17th March 2023

Councillors and members of devolved public bodies in Scotland often have multiple roles. A councillor might, for example, also be a member of the local health board or regional transport partnership. Similarly, a member of a health board may also be a member of the local health and social care partnership, or they may sit on the board of a college or enterprise organisation.

Being a member of two or more organisations can bring real benefits to both, in terms of a councillor or member being able to use and share their skills, knowledge and experience. For example, a councillor’s experience as a board member of a public body may give them valuable knowledge and experience of identifying and managing strategic risks. Similarly, a member’s experience on another public body may give them useful knowledge and experience of the public sector budget-setting processes.

Being a member of another organisation can, however, also can give rise to potential conflicts of interest and issues around confidentiality and collective responsibility.

The Codes of Conduct for councillors and members of devolved public bodies differentiate between being:

1. appointed or nominated by one public body to also be a member of another external public body (scenario 1); and
2. independently elected, or independently applying and being appointed, to another external public body (scenario 2).

Scenario 1

An example of the first scenario is where a councillor or member of a health board is nominated or appointed by their council or health board to be a member of a health and social care integration joint board (IJB).

Councils and devolved public bodies are often obliged by statute to nominate or appoint councillors or members to other external public bodies. There are also clear strategic or policy benefits for doing so, which include the sharing of knowledge about work and priorities in order to help ensure balanced and informed decision-making. Councillors and members can also help provide support and balance to the external body and can ensure the position of the council or public body is represented properly.

The Codes recognise these benefits and provide that, in such a scenario, the councillor’s or member’s membership of the IJB would not automatically be a connection. This means that their membership of the IJB alone would not amount to a declarable interest that would force them to withdraw from any council or health board meeting where matters that could concern the IJB were being discussed. The only exceptions to this are:

• If the matter being considered by the council or public is quasi-judicial or regulatory in nature (such as a licensing or planning matter) and the other external body to which they have been nominated or appointed has an interest in the outcome (for example, if the other IJB was the applicant or an objector); or
• The councillor or member has what is essentially an additional, personal conflict by reason of their actions, connections or legal obligations (for example, an additional conflict could arise if the IJB was seeking additional funding from the Council or health board and the councillor’s or member’s partner’s employment could be affected by the decision as to whether or not to allocate further funding).

The councillor or member concerned would nevertheless be expected, while at the meeting of the council or health board, to act in its best interests. This means they are required to wear their councillor or health board member’s ‘hat’, even if the decisions they made while doing so may not necessarily also be in the best interests of the IJB.

It should be noted that the arrangements, as outlined above, are same for councillors who are nominated or appointed by their council to one of its arms’ length external organisations (known as ALEOs), which has been set up by the council to deliver some of its functions (for example a leisure trust or, waste management company).

Scenario 2

Examples of the second scenario could be where a councillor is also elected to be a member of a national park authority; or where a member of a college board applies, and is appointed by the Scottish Ministers, to be a member of an independent public body, such as the Scottish Legal Aid Board.

In this case, the councillor or member’s membership of the other external public body could be a connection that, in turn, could amount to a declarable interest.

The Codes make it clear that all councillors and members have a personal responsibility to identify and manage conflicts. The Codes require them to consider and apply a three-stage test, which is:

1. CONNECTION – whether there is any link between the matter being considered and the external public body. If so:
2. INTEREST – they are then required to apply the Objective Test, being whether a member of the public, with knowledge of the relevant facts, would reasonably regard their connection to the matter as being sufficiently significant as to be likely to influence their discussion or decision-making.  If so, then it is an interest that requires to be declared.
3. PARTICIPATION – if the councillor or member has a declarable interest, by virtue of their membership of the external public body, then they cannot participate in the discussion or any voting on the matter and must leave the room.

As noted above, councillors and members who are also members of other external public bodies (regardless of how they are appointed) must also comply with the provisions in the Codes on confidentiality. They cannot, for example, disclose confidential information that they have received in their capacity as a councillor or member to the other external body. Members must also abide by the provision in their Codes concerning collective responsibility (for example, if their public body has made a decision, they should not undermine that decision before the other public body).

So, while there can be clear benefits, councillors and members of devolved public bodies should take care to understand their responsibilities before accepting an appointment to another external public body.