Sanctions

31st July 2023

As part of its adjudicatory function, the Standards Commission holds Hearings to determine whether councillors or members of devolved public bodies have breached their Codes of Conduct. Hearings arise if Standards Commission members, following their consideration of an investigation report referred by the Ethical Standards Commissioner (ESC), decide it is both proportionate and in the public interest to hold a Hearing.

When a Hearing is held, three members of the Standards Commission will convene to form a Hearing Panel. The ESC will present the findings of their investigation at the Hearing and will outline any conclusions as to whether the councillor or board member (known as 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. Both parties can call witnesses. Once it has heard all the evidence and submissions, the Hearing Panel will make a determination about whether or not it is satisfied, on the balance of probabilities, that there has been a contravention of the applicable Code. If the Hearing Panel decides that there has been a breach, it is obliged to impose a sanction. That obligation stems from the legislative requirements found at Section 19 of the Ethical Standards in Public Life etc. (Scotland) Act 2000.

In determining the sanction to apply, the Standards Commission’s Hearing Panel takes into account the factors detailed in its Policy on the Application of Sanctions, the aim of which is to help achieve clarity, consistency, awareness and transparency in the way sanctions are applied.

Three types of sanction are available to a Hearing Panel in the event of a breach of the Code being found. These are:

• Censure: Censure is a formal recording of the Standards Commission’s severe and public disapproval of the Respondent.

• Suspension: This can be a full or partial suspension. A full suspension means that the Respondent is suspended from attending all meetings of the council or public body. Partial suspension means that the Respondent is suspended from attending some of the meetings of the council or public body.  The Public Bodies (Joint Working) (Integration Joint Boards) (Scotland) Order 2014 and the Health Boards (Membership and Procedure) (Scotland) Amendment Regulations 2016 provide that any Respondent who is the subject of a suspension is also disqualified from being a member of any Health Board or Health and Social Care Integration Joint Board.

The Standards Commission has produced Guidance on the extent to which a councillor should engage in their duties during a period of suspension.

• Disqualification: Disqualification means that the Respondent is disqualified for the period determined (of up to 5 years) from being a councillor or member of the specific devolved public body in question. A disqualification means, effectively, that a councillor is removed from office.

In reaching its decision on sanction, the Panel will firstly consider the nature and seriousness of the breach that has been found. For example, a finding that a councillor has breached the Councillors’ Code by failing, for a few days, to register a new interest is likely to be considered less serious than a finding that a councillor has bullied council officers or failed to declare a personal financial interest in a planning matter.

The Panel will then consider any aggravating or mitigating factors. Aggravating factors are ones which may increase the severity or culpability (how ‘at fault’ the Respondent is) of the breach. Examples of aggravating factors are:

• the behaviour was repeated over a long period of time;
• deliberate conduct;
• dishonesty and / or concealment; and
• lack of remorse and / or no apology.

Conversely, mitigating factors may lessen the severity or culpability of the breach. These include:

• an admission of breach, especially at an early stage;
• the breach was inadvertent, or technical in nature;
• co-operation with the investigation and adjudication processes; and
• evidence of good character / record of public service.

When imposing a sanction, the Panel will also aim to take into account the interests of the public. The imposition of an appropriate sanction underpinned by clear and understandable reasoning helps maintain the public’s confidence that councillors and board members will comply with their Codes of Conduct – and if they fail to do so, that they will be held to account. Clear and consistent imposition of sanctions also helps to achieve a credible deterrence, by promoting of adherence to the Code and preventing breaches before they occur.

The Standards Commission publishes written decisions of Hearings that have been held. In cases where the Hearing Panel has found a breach of the applicable Code, it will outline what sanction has been imposed and the reasoning behind its decision in this regard.