Information for Respondents

If you have received notification from the Standards Commission that you are to be the subject of a Hearing, you should read carefully the following information. 

Information you are required to provide before the Hearing: You are required to provide certain information before the Hearing by completing the Respondent’s Information Template, which will have been sent to you with the initial correspondence advising that a Hearing is to be held. The Respondent’s Information Template can be downloaded from the table below. This includes information about whether you intend to be represented and to call any witnesses to appear on your behalf.

Unrepresented Respondents: The Standards Commission understands that being the subject of a Hearing can be daunting, particularly for Respondents who are not represented. Please note that we will do everything we can to ensure that an unrepresented Respondent is not disadvantaged. Guidance for Unrepresented Respondents can be downloaded from the table below.

Representation: You are entitled to be represented at a Hearing (including by a legal representative). If you are represented, all questions must be put to, and answered by, your representative (unless they are put to you if you are giving evidence as a witness). If you are represented, then only your representative will be allowed to make submissions. Any person appearing as a witness at the Hearing will not be able to act as a representative.

You will be responsible for any costs associated with obtaining representation.

Written Submissions: You can choose not to appear at the Hearing, but to instead rely on written submissions. If you decide not to appear, you will need to send any written submissions to the Executive Director at least 21 days before the Hearing.

Productions: The ‘productions’ are any documents submitted by the Ethical Standards Commissioner (ESC) or Respondent to be considered by the Hearing Panel both in advance and at the Hearing. These include a copy of the ESC’s report and any case law. Any productions, including any case law that the parties wish to rely on at a Hearing, must be submitted to the Executive Director at least 14 days before the Hearing is scheduled to commence. The relevant paragraphs in any case law must be highlighted.

The Standards Commission will add any documents or case law submitted to the productions and will circulate numbered copies to both parties at the earliest available opportunity. The ESC and Respondent can refer the Hearing Panel to any document in the productions during the Hearing and can take the Panel through any points they consider to be relevant.

The Hearing Panel may decide not to accept any productions submitted less than seven days before a Hearing, if it considers it would be unfair to the other party to do so. 

When they are giving evidence, witnesses will be provided with a copy of the numbered productions. Witnesses (including you if you are giving evidence), are not allowed access to any other paperwork or notes while they are giving their evidence. You can, however, refer to you own notes or paperwork while making any submissions.

Witnesses: You and the ESC (the parties) are entitled to call witnesses to give evidence about the factual circumstances that are the subject of the complaint.  It is up to you to ask any witnesses to appear on your behalf and to check that they are available, and willing, to attend on the day of the Hearing.

Witnesses will be questioned by the party calling them and may then be cross-examined (asked questions) by the other party. The party calling the witness may then re-examine the witness, but only on new matters raised during cross-examination. The party calling the witness should not put leading questions (i.e. questions which invite a witness to give a particular response) to the witness, unless they are on introductory matters or facts that are not in dispute. The Hearing Panel can choose to disregard any evidence that is obtained from a leading question.

Members of the Hearing Panel can question witnesses at any point. The parties may question witnesses on matters arising out of any question asked by the Hearing Panel.

Neither you nor the ESC (or any representatives) will be allowed to ‘badger’ a witness, for example, by:

• asking argumentative or sarcastic questions;
• deliberately antagonising them;
• asking insulting questions in an attempt to provoke an emotional response; or;
• asking repetitive questions or a variation of a question over and over. 

The Hearing Panel will ask any party doing so to stop and may either prevent them from asking further questions of the witness or excuse the witness.

Witnesses are not allowed to be in the Hearing room until after they have given evidence.

If you think someone can give relevant evidence to support your position, but they refuse to appear, you can ask the Standards Commission to require them to attend. Please contact the Executive Director at least 21 days before the Hearing if you want the Standards Commission to require a person to attend. You will need to provide their name and contact details (if you have these), along with an indication as to why you think their evidence might be relevant and helpful.

Witnesses should only be asked to provide evidence about the factual circumstances that are the subject of the complaint or how any events may have affected them. They should not be asked to give their opinions or views on whether or not there has been a breach of the Code.

Oath / Affirmation: The Chair will ask any witnesses to swear an oath or make an affirmation before giving evidence. A document containing the wording of the oath and affirmation can be downloaded from the table below.

Relevancy of Evidence: The Hearing Panel may refuse to hear any evidence that it does not consider to be relevant to the question of whether there has been a breach of the Code of Conduct. Guidance on the Relevancy of Evidence can be downloaded from the table below. 

Difference between Evidence and Submissions: You are entitled to both give evidence and to make submissions (unless you are represented, in which case it will be for your representative to make submissions on your behalf). If you decide to give evidence, you will be asked to take an oath or make an affirmation, just like any other witness. If the Hearing is being held in person, you will be asked to sit at the witness table while giving evidence.

Witnesses should give evidence about what they saw, heard, did, received etc. They should not give their views or present any arguments, as these are considered to be submissions. Submissions are observations and comments about each party’s position in respect of whether or not there has been a breach of the Code. You can refer to the evidence that has been given when you make your submissions, but you cannot give evidence yourself when you are making a submission. You can only give evidence if you are under oath or have made an affirmation as a witness.

Standard of Proof: The standard of proof to be applied by a Hearing Panel is the balance of probabilities. This means the Hearing Panel will consider whether it is satisfied, from the evidence and submissions before it, that a breach of the Code of Conduct is more likely than not to have occurred. 

Hearing Rules: The Standards Commission’s Hearing Rules outline the procedures to be followed at a Hearing. The Hearing Rules can be downloaded from the table below.

Sanctions: If the Hearing Panel finds, on the balance of probabilities, that you have breached the Code of Conduct, as alleged, it will be obliged to impose a sanction. The sanctions available to the Hearing Panel are censure, suspension or disqualification. A policy outlining the factors the Hearing Panel will consider when making a decision on the sanction to be imposed can be found in the Application of Sanctions Policy, which can be downloaded from the table below.

Mitigation: If the Hearing Panel finds there has been a breach of the Code of Conduct, the Chair will ask you or you representative to call any witnesses or make any submissions in respect of mitigation before the Hearing Panel makes a decision on the sanction to be applied. You can also send written submissions (including any character references) to the Executive Director in advance of the Hearing. These will only be given to the Hearing Panel to consider if a breach of the Code of Conduct is found.

Impact Statements: In cases where the Standards Commission’s Hearing Panel has found a breach of the respect or bullying and harassment provisions in a Code of Conduct, it may consider any impact statement received from someone affected by the Respondent’s conduct, when determining the sanction to be applied. In doing so, the Hearing Panel will be mindful of, and will take into account, the fact that the information in any such a statement has not been given under oath or tested.

Article 10 of the European Convention on Human Rights (ECHR): In cases alleging a breach of the respect, courtesy, bullying and harassment or confidentiality provisions in a Code of Conduct, the Standards Commission will be required to consider the Respondent's right to freedom of expression under Article 10 of the ECHR. Advice Notes on how Article 10 of the ECHR will be applied by the Standards Commission, for both councillors and members of devolved public bodies, can be accessed here: https://www.standardscommissionscotland.org.uk/education-and-resources/professional-briefings 

On the day: A diagram showing how the Hearing room will be set up can be downloaded from the table below. Members of the public and press can attend and sit at the back of the room as observers only. Staff of the Standards Commission will be present and will introduce themselves and check whether you have any questions before the Hearing starts.

The Chair of the Hearing Panel will open the Hearing by outlining the procedure to be followed, as outlined in the Hearing Rules, which can be downloaded from the table below. The Chair will ask you if you have any questions on the procedure, before starting to hear evidence and submissions. The Chair will adjourn the Hearing at various points to allow for comfort breaks and for the Panel to deliberate. If you need any additional comfort breaks or time to gather your thoughts, you should let the Chair or a member of Standards Commission staff know.

Adjustments: If you or any witness appearing on your behalf need particular assistance (for example, because of physical impairment or language difficulty), you should advise the Executive Director accordingly at least 14 days before the Hearing. The Hearing Panel will consider all the relevant information and will ensure that appropriate supportive measures, as far as reasonably practicable, are in place prior to the Hearing.

Support: If you are unrepresented at the Hearing, you are allowed to bring someone along to support you. That person will not, however, be allowed to make representations, give evidence or question witnesses.

Pre-Hearing Meetings: It is likely that you will be invited to attend a pre-Hearing meeting. The Standards Commission hold pre-Hearing meetings (usually online) to try to resolve any procedural issues and to give the parties (being the ESC and the Respondent) the opportunity to raise any issues and ask any questions before the Hearing itself. The Chair of the Hearing Panel will chair the pre-Hearing meeting, and a member of Standards Commission staff will normally also be in attendance. Pre-Hearing meetings usually take 30 – 45 minutes.

You will be asked at the pre-Hearing meeting to give an indication as to how much time you (or your representative) will need to present your case at the Hearing.

Joint Statement of Facts: The ESC may contact you, as the Respondent, to see whether you are willing to try and agree some of the factual findings of the report. This is so the parties do not need to lead evidence about matters that are not disputed.

If you can reach agreement, then the ESC will send you a document listing the relevant facts that are not in dispute. If you agree to this, both you and the ESC will sign the document, which is known as a joint statement of facts, before submitting it to the Standards Commission. The Hearing Panel will only be provided with and consider any final, agreed and signed version of the joint statement of facts.

Adjournments: In accordance with the Standards Commission’s Policy on Hearing Adjournment Requests, which can be downloaded from the table below, the Hearing Panel may, at its own discretion or on the application of any of the parties, postpone or adjourn a Hearing.  Before any request for postponement or adjournment is granted, the Hearing Panel will consider:

(a)    The public interest in the expeditious disposal of the case; and

(b)    Any inconvenience or prejudice to the parties and to witnesses.

If you wish to submit an application for the postponement of a Hearing, please email enquiries@standardscommission.org.uk at least seven days before the scheduled date of the Hearing.  It will be up to the Chair to decide whether any application submitted later than seven days before the scheduled date of the Hearing should be considered.

HELP AND QUESTIONS: You can contact Standards Commission staff if you have any questions or need help before the Hearing. The contact details are as follows:

Email: enquiries@standardscommission.org.uk

Phone: 0131 348 6666