Agenda Document Pack - Council - 21/12/2023
North Lanarkshire Council · 21 December 2023
Back to Council — 21 December 2023 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
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12 December 2023 Members of the Council Chief Executive’s Office Archie Aitken Chief Officer (Legal & Democratic) Civic Centre, Windmillhill Street, Motherwell ML1 1AB www.northlanarkshire.gov.uk Notice is given that a Meeting of the Council is to be held in the Council Chamber, Civic Centre, Windmillhill Street, Motherwell, ML1 1AB on Thursday, 21 December 2023 at 16:00 PM which you are requested to attend. The agenda of business is attached. Des Murray Chief Executive Members : Clerk Name: Mark Hamill Clerk Telephone: 07811294702 Clerk Email: hamillm@northlan.gov.uk D Ashraf, A Ballinger, C Barclay, B Baudo, A Beveridge, M Boyd, H Brannan-McVey, G Brennan, B Burgess, A Bustard, J Cairns, A Campbell, T Carragher, C Costello, M Coyle, S Coyle, D Crichton, G Currie, P Di Mascio, K Docherty, K Duffy, A Duffy-Lawson, H Dunbar, T Fisher, F Fotheringham, W Goldie, K Harmon, M Hughes, J Hume, L Jarvie, D Johnston, T Johnston, J Jones, P Kelly, J Keltie, A Khan, K Larson, J Leckie, G Lennon, J Logue, H Loughran, F MacGregor, A Masterton, M McBride, B McCluskey, A McCrory, B McCulloch, M McCulloch, P McDade, F McKay, R McKendrick, J McLaren, C McManus, F McNally, M McPake, J McPhilemy, A McVey, L Mitchell, L Nolan, P Patton, J Reddin, L Roarty, D Robb, G Robinson, N Shevlin, W Shields, A Smith, K Stevenson, A Stubbs, L Stubbs, R Sullivan, A Thomas, J Toner, S Watson, C Williams, N Wilson, G Woods. Page 1 of 72
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Agenda 1 Declarations of Interest In Terms of the Ethical Standards In Public Life Etc. (Scotland) Act 2000 2 Minutes of Meetings of Committees, Sub-Committees and Panels - Cycle 4 Submit volume of minutes of meetings of committees, sub- committees and panels for cycle 4 for approval in terms of standing order number 21 (copy to follow) 3 Membership of Committees, Sub-Committees, Panels, Working Group and Outside Bodies Submit proposed amendments to Membership of Committees, Sub-Committees, Panels, Working Groups and Outside Bodies (copy to follow) 4 Outcome of By-Election held on 16 November 2023 in Ward 19 Motherwell South East and Ravenscraig Submit outcome of By-Election held on 16 November 2003 in Ward 19 Motherwell South East and Ravenscraig 11 - 12 5 Housing Revenue Account – 2024/2025 Revenue Estimates Submit report by the Chief Officer (Finance) presenting information that will enable the Council to set its Housing Revenue Account (HRA) budget and rent levels for 2024/2025 13 - 24 6 Remit from the Policy and Strategy Committee of 7 December 2023 - Self-Evaluation of the Audit and Scrutiny Panel - Outcome Report and Improvement Plan Submit report by the Chief Officer (Legal and Democratic) seeking approval of the removal of substitute attendance at the Audit and Scrutiny Panel, as per improvement action 2.4 in Appendix 2 25 - 54 7 Standards Commission Proceedings – Councillor Duffy Submit report by the Chief Officer (Legal and Democratic) advising of the outcome of proceedings before the Standards Commission for Scotland in relation to a complaint that Councillor Duffy had been guilty of a breach of the Councillors’ Code of Conduct. 55 - 70 NOTICE OF MOTIONS Page 3 of 72
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8 Notice of Motion submitted by Councillor Smith and Councillor Robinson “Council recognises the need for business conducted at committee meetings to be properly documented and captured, with actions recorded and followed up by officers as and when requested during meetings. This is vital to ensure the continued open and transparent nature of council proceedings, and to avoid duplication and repeated requests being revisited and resubmitted at subsequent meetings. Council agrees for all future Committee and full Council meetings to capture within the minutes any specific questions submitted to council officers where a response or additional actions are promised outside of that meeting. This will be implemented from the first relevant meeting of cycle one of 2024” 9 Notice of Motion submitted by Councillor Khan and Councillor McKay “North Lanarkshire Council recognises the high level of care currently provided at University Hospital Wishaw’s award winning Neonatal Intensive Care Unit and extends a sincere thanks to the staff working there. Council notes with concern the proposal by the Scottish Government to downgrade Wishaw’s Neonatal Unit and acknowledges that a petition opposing the proposal has gathered more than 17,000 signatures. Council notes that a decision to downgrade this unit would result in some babies that require a high level of care being treated in Glasgow, Edinburgh or Aberdeen instead of Wishaw, as they are currently. Council is further concerned that the clinical advice which this proposal is predicated on is now five years out of date. As such, council instructs the Chief Executive to write to the Scottish Government Health Minister objecting to this proposal and highlighting the negative impact it is likely to have on parents here in North Lanarkshire” Page 4 of 72
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10 Notice of Motion submitted by Councillor Costello and Councillor Bustard “Council commends the excellent work of the Scottish Fire and Rescue Service in keeping our communities safe. Council notes with concern Scottish Government cuts to the Scottish Fire and Rescue Service budgets which it understands equate to £64million over the last ten years in real terms. Council understands that such significant cuts to a key public service have led to job losses and a deterioration of the condition of many stations across Scotland. Council recognises reports that the loss of key appliances in neighbouring stations will see large communities outside of North Lanarkshire become partly reliant on North Lanarkshire Fire Stations to provide support. Council believes that it is the public and community safety that will feel the true impacts of these cuts. Council, therefore, urges the Scottish Government to reverse this year’s funding cut to the Scottish Fire and Rescue Service budget to give this key public service the relief it desperately needs and agrees to write to the Scottish Government Community Safety Minister stating this position” Page 5 of 72
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11 Notice of Motion submitted by Councillor Logue and Councillor Fisher “Council agrees that Standing Order 6 be amended, as undernoted: - The notice of the time of, and the arrangements for, the intended meeting, shall be published at the Civic Centre, Motherwell and on the Council’s website and sent to Members by email to their Council email addresses by way of a hyperlink to the meeting papers. If they so choose, Members may request to receive a printed copy of the meeting papers which may be collected from Member Services, Civic Centre, Motherwell. Where a Special Meeting is called by Members, the notice shall be signed by, and record the names of, the Members calling the meeting and the notice shall specify the business proposed to be transacted at the intended meeting. Council agrees that Standing Order 64(A) be amended to read that "Where a member who has been appointed to a committee is unable to attend a meeting of that body, they shall be permitted to appoint a substitute member to attend in their place. The use of substitute members shall be limited to use only by political groups and shall be further limited to three per political group per meeting. Upon attendance in a role of substitute member, that Member shall so indicate to the meeting prior to the commencement of business that they are in attendance as a substitute Member and further indicate the name of the absent Member for whom they are substituting, and this shall be recorded in the Minute of the meeting. It is not permissible for a substitute Member to assume the Chair." Council agrees that all Planning, quasi-judicial & regulatory committees and sub-committees are held in person” Page 6 of 72
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12 Notice of Motion submitted by Councillor Williams and Councillor McKendrick “This Council notes:- • The ‘Strathclyde Regional Bus Strategy and Delivery Plan: Case for Change’ report presented to Strathclyde Partnership for Transport’s Board on 29 September 2023. • That this evidence-based report has found that bus use is in ‘sustained, long-term decline’ in Strathclyde, with bus patronage, the size of bus networks, bus service frequency and network coverage all falling. • That despite decline in bus networks, bus fares continue to rise in Strathclyde at a higher rate than inflation and at a higher rate than the cost of travelling by other modes of transport. • That the current model of bus service has failed to deliver integrated ticketing or an integrated approach to public transport planning. • That in 2021/22 public sector support represented 56 per cent of bus operator revenues in Scotland. • That publicly funded revenue has been boosted by free bus travel for under 22s resulting in 84 million journeys to education, work and leisure, where services are available to use. • The announcement in the 22/23 Programme for Government that the Scottish Government will work with third sector and local authorities to provide free bus travel to asylum seekers and refugees including displaced people from Ukraine. This Council believes:- • The current deregulated model of bus provision is inadequate and that there is now a compelling case for changing the model of bus provision across Strathclyde. • A new model of bus provision will enable bus services and public transport across Strathclyde to contribute more towards a healthier environment, inclusive economic growth and an improved quality of life for the people and communities of Strathclyde. • A new model of bus provision will enable bus routes, timetables, ticketing, fares and integration with other modes to be designed by identifying and addressing communities’ needs in urban and in suburban and rural areas where there is little or no current service. Page 7 of 72
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This Council agrees to write to SPT and the Scottish Government to communicate its view that:- • As part of ongoing work developing theStrathclyde Regional Bus Strategy, SPT must develop a new model of bus provision for Strathclyde (on behalf of its 12 constituent local authorities) that is fully-integrated with other transport modes, affordable, reliable, easy to use, and democratically accountable. • SPT can deliver this most effectively by taking forward the franchising and municipal ownership powers in the Transport (Scotland) Act 2019 (and not through ‘Bus Service Improvement Partnerships’, which are not suitable for delivering transformational change) • This new model of bus provision will help achieve the Regional Transport Strategy objectives and policies set out by SPT by ensuring that bus provision is designed through identifying and addressing communities’ needs. • The Scottish Government must support SPT (and Scotland’s other Regional Transport Partnerships) seeking to replace deregulated bus models with models of regulation or common ownership, with fair funding and regulation that respects the autonomy and democratic wishes of Scotland’s communities and regions. A democratically accountable Strathclyde-wide bus franchising system should be progressed to improve bus services across the region and realise the ambitions of the Regional Transport Strategy. • The Scottish Government must support SPT in reforming transport governance, over a 10 year period, as set out in the recentCentre for Cities report.” In addition: Officers should continue to collaborate with other local authorities and SPT to progress the use of the franchising and municipal ownership powers, in line with this motion” QUESTIONS Page 8 of 72
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13 Questions Received in Terms of Standing Order 51 Submit three Questions Received in Terms of Standing Order 51 71 - 72 Page 9 of 72
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NORTH LANARKSHIRE COUNCIL – RESULTS OF BY-ELECTION WARD 19 – MOTHERWELL SOUTH EAST AND RAVENSCRAIG DATE OF BY-ELECTION: THURSDAY, 16 NOVEMBER 2023 I Des Murray, Returning Officer for the above by-election, hereby give notice that the votes cast were as follows. Total Ballot Papers received 3,155 Invalid votes 48 Total Valid Votes 3,107 Electoral quota 1,554 Percentage poll 20.0% that the votes cast for each of the candidates were as follows: Candidate Number of First Preference Votes Stage at which candidate has been elected Billy Acheson British Unionists – For a Better Britain 96 Oyebola Ajala Scottish Conservative and Unionist 296 Kaye Harmon Labour and Co-Operative Party 1,368 7 Robert Stewart McGeorge Scottish Liberal Democrats 68 Mark Shields Alba Party 66 Derek Watson Scottish Green Party 255 Neil Wilson UK Independence Party 24 Rosa Zambonini Scottish National Party (SNP) 934 After application of the Election Rules, I declare that the following is elected as a Councillor for Ward No. 19 – Motherwell South East and Ravenscraig is:- Kaye Harmon, Labour and Co-Operative Party. Item 4 Page 11 of 72
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Of the total ballot papers, the following were rejected and not counted on account of The Scottish Local Elections Order 2011 Order Rule 44(1): Adjudication Reject Reason Number of Papers Which does not bear a unique identifying mark in a form that is capable of being read by electronic means 0 On which a number standing alone is not placed so as to indicate a first preference for some candidate 8 On which the figure “1” standing alone indicating a first preference is set opposite the name of more than one candidate 32 On which anything is written or marked by which the voter can be identified except the printed number and other unique identifying mark on the back 0 Which is unmarked or void for uncertainty 8 Total ballot papers rejected 48 Des Murray Returning Officer 16 November 2023 Page 12 of 72
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North Lanarkshire Council Report Housing Committee Does this report require to be approved? ☐ Yes ☒ No Ref SL / GT Date 08/11/23 Housing Revenue Account – 2024/25 Revenue Estimates From Elaine Kemp, Chief Officer (Finance) E-mail kempe@northlan.gov.uk Telephone 01698 302408 1. Background 1.1 Income and expenditure in relation to a local authority’s own direct provision of housing must be recorded within a Housing Revenue Account (HRA) as set out in the Housing (Scotland) Act 1987. In addition, this Act sets out the requirement for local authorities to set an annual budget to support sound financial management and helps ensure that expenditure is linked to the key priorities of tenants. 1.2 North Lanarkshire is Scotland’s largest local authority landlord, with a housing stock of approximately 36,000. The number has reduced marginally over the last year reflecting the impact of tower re-provisioning, partially offset by additions to the stock through the Council’s new supply programme and buy back schemes. Executive Summary The purpose of this report is to present to Committee information that will enable the Council to set its Housing Revenue Account (HRA) budget and rent levels for 2024/25. Recommendations It is recommended that Committee: (1) Recognises the HRA cost pressures detailed in Appendix 1, (2) Recognises the base budget savings outlined in Appendix 2, (3) Considers the HRA reserve balances as detailed in paragraphs 2.5 to 2.8, and (4) Agrees to review the financial assumptions contained in this report at the Council meeting in December 2023 to approve the HRA Revenue Estimates and rent levels for 2024/25. The Plan for North Lanarkshire Priority Improve North Lanarkshire's resource base Ambition statement (25) Ensure intelligent use of data and information to support fully evidence based decision making and future planning Programme of Work Statutory / corporate / service requirement Item 5 Page 13 of 72
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1.3 The Council approved its 2023/24 HRA budget of £164m on 23 February 2023 with £152m (93%) funded by rental income from tenants, £9m (5%) from other fees and charges and £3m from reserves (2%). 1.4 The average 2023/24 weekly rent in North Lanarkshire of £80.33 is the eleventh lowest amongst Scottish local authority landlords and 2% below the Scottish local authority average. The recent Landlord Report published by the Scottish Housing Regulator shows North Lanarkshire Council’s rents are between 14.1% (for a 1 apartment) and 17.8% (for a 2 apartment) below the Scottish average for all social housing rents. 1.5 In setting the HRA budget and rent levels in December 2017, the Council agreed to an average rental increase of 5% for 2018/19 and 5% for the subsequent three years up to 2021/22. For 2022/23 the rent increase was set at 3%, with a 5% increase approved for 2023/24. 1.6 Committee has received regular updates on the progress of delivering the Council’s ambitious plans for housing through the Economic Regeneration Delivery Plan. This has been further strengthened through The Plan for North Lanarkshire approved in March 2019 and revised in March 2023 with the Programme of Work through the Transforming Places theme with a renewed focus on transforming town centres and communities, creating places with high-quality homes and vibrant town centres. 1.7 Significant progress to date includes: • An increase in the target for new supply housing from 2,150 by 2027 to 5,000 by 2035, • Completion of 1,138 new build homes with a further 451 on site. Sites have been identified and are at various stages of progression for a further 1,289 homes, • Expansion of the buy back scheme with 689 homes purchased through the Council Buy Back Schemes at 14 September 2023, • The approval, development and ongoing delivery of plans for investment and re- provisioning of the Council’s tower properties, • Approval of a 5 year mainstream capital programme from 2021/22 to 2025/26 that aims to deliver £354m of investment in the Council’s housing stock; greater than 20% increase from the previous 5 year planning period. 30-year Business Plan 1.8 The 30-year Business Plan included as part of the 2024/25 budget setting process is shown in Appendix 3. Finance has worked closely with Housing Property Services and the New Supply Team to confirm future investment targets to support the development and refinement of financial modelling. The 30-year Business Plan continues to demonstrate affordability and sustainability of plans based current assumptions. Housing Benefit / Universal Credit 1.9 During the mid point of the current financial year, North Lanarkshire had over 24,000 tenants in receipt of some form of support for their housing costs, representing almost 69% of tenants. Almost 38% of tenants are now in receipt of the housing cost element of Universal Credit and a further 31% are in receipt of Housing Benefit. 1.10 A rent increase would result in some tenants receiving more Housing Benefit and some existing non-claimants becoming entitled to Housing Benefit. However, unless their circumstances change, most tenants will be liable for the same contribution towards their rent, with Housing Benefit making up the difference. Page 14 of 72
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1.11 Tenants currently entitled to the full housing cost element of Universal Credit would have their Universal Credit payment uplifted to reflect any rent increases up to the Local Housing Allowance cap. 1.12 Following approval at the former Housing and Regeneration Committee in November 2019, the Council established the Universal Credit Assistance Fund (UCAF). Following approval at this Committee in February 2023 the scheme evolved into the current Rent Assistance Fund. Over 10,000 tenants have been supported that would otherwise have fallen into arrears. In addition, in accessing these funds tenants have been provided with additional support and advice and signposting to other agencies where required ultimately contributing to longer term sustainability of tenancies. 1.13 These measures have ensured the Council has seen a stable position for rent arrears for current tenants with the arrears balance remaining largely unchanged throughout the current financial year where other landlords are experiencing significant increases in current tenant arrears. 2. Report HRA Revenue Estimates 2.1 In assessing the budgetary requirements of the Housing Revenue Account for 2024/25, a number of variables and factors have to be considered and analysed before determining the adjustments required in the base budget position. These base budget adjustments are outlined in Appendices 1 and 2, with the main factors described below: 2.1.1 Cost Pressures of £17.814m to ensure that the HRA can continue to deliver a highly performing repairs and maintenance programme, effective housing management and support and deliver the approved capital programme, including: • Employee costs (£0.746m) The anticipated cost pressure for employee costs incorporates a re- baselining for the 2023/24 current pay negotiations as well as an allowance for a further 3% increase for 2024/25. This is partially offset by an anticipate increase to the turnover savings to reflect the significant levels of vacancies experienced by the housing service. • Reduced employer pension contributions (£2.591m) It is however anticipated that a one-off saving of £2.591 will materialise for 2024/25 as a result of the Actuarial Valuation of the Strathclyde Pension Fund concluding that the fund is 146% funded allowing the employer pension contribution rate to be reduced for 2 years. The £2.591m is non- recurring therefore a recurring solution for this would need to be identified in future years. • Housing Repair and Maintenance (£6.830m) The Council’s repairs programme is delivered by external contractors. The contracts are indexed to inflation to reflect changes in the price of materials, labour etc. The Enterprise Contract which is currently going through the procurement process is anticipated to be in place from the new financial year. This cost estimate builds in an assumption around the potential rates given the significant levels of inflation experienced within the construction industry at the moment. Page 15 of 72
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• Loan charges (£10.174m) With increases to the Bank of England base rate, the cost of borrowing is increasing which will make the repayment of historic HRA capital borrowing more expensive. This cost pressure is based on an assumption that the repayment of debt will be at 4.75% however there is a risk that for one year in 24/25 the rates will be higher at 5.5%. For the purposes of setting rent for 24/25 this has been excluded and can be managed through reserves. • Other inflationary pressures for energy and other services (£1.510m) • Reversal of prior year Use of Reserves (£3.088m) • Housing Stock Profile (£1.943m) Changes in the profiling of stock during the year including additional units and progression through the tower reprovisioning programme has resulted in a recurring benefit of additional income of £1.943m. 2.1.2 Base Budget Savings are considered each year to ensure that the HRA continues to direct its resources towards key priorities. Appendix 2 outlines base budget savings of £1.165m to be implemented by the service in 2024/25. 2.1.4 The combined impact of these cost pressures and partially offsetting savings is a funding gap of £16.649m. This can be summarised as follows: £m Cost Pressures (see Appendix 1) 17.814 Base Budget Savings (see Appendix 2) (1.165) Funding Gap 16.649 2.2 A rental increase of 11.11% would be required to bridge the funding gap. 2.3 There is an opportunity to make an adjustment to the profile of capital financing within the HRA between borrowing and Capital Funded from Current Revenue (CFCR). Given the significant cost pressures facing the HRA it has been determined that there should be a reduction of £9.084m in CFCR from £27.146m to £18.062m in 2024/25. This would reduce the rent rise required in 2024/25 to 5%. 2.4 It should be noted that this will result in additional recurring revenue costs of c. £0.591m from 2025/26. To maintain this rent increase level beyond 2024/25, a further £4.287m CFCR reduction would be required in 2025/26. Members should note that this mechanism will increase the future borrowing requirement and expose the HRA to more expensive borrowing to support its capital investment however this has been deemed to be a prudent adjustment given the significant cost pressures faced by the HRA. Use of Surplus Balances 2.5 As part of its long-term HRA budget strategy, it is the Council’s policy to set aside approximately 1% of the HRA budget as a core reserve. As a result, the core reserve currently stands at £1.640m. 2.6 Based on the Period 6 Budget Monitoring position, the projected HRA reserves position at 31 March 2024 can be summarised as follows: Page 16 of 72
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£m Earmarked Reserves 9.981 Core Contingency Reserve 1.640 Unallocated Reserve 5.312 Total Projected at 31 March 2024 16.933 2.7 There will be a requirement to support a peak in loan charges expected in 2024/25 from reserves. This would require funding of around £3.700m from the Unallocated Reserve. In addition, there are continuing risks to the HRA from uncertainty within the wider economy and the impact of inflation on repairs and maintenance costs and interest rates on the cost of borrowing. 2.8 Elected Members are reminded of the Council’s Reserves Policy approved at Policy and Strategy Committee in January 2020 which aims to ensure that available balances are managed and utilised in accordance with effective governance principles and continue to support financial plans which are affordable and sustainable. 3. Measures of success 3.1 The Council is required to set a balanced budget for the Housing Revenue Account with expenditure plans fully funded by income, largely from housing rents. 3.2 The setting of an annual budget and thereafter monitoring the budget ensures that tenants can have confidence that the Council and its officers are accountable for the spending decisions they make. 4. Supporting documentation Appendix 1 Cost Pressures 2024/25 Appendix 2 Base Budget Savings 2024/25 Appendix 3 30-year Business Plan Summary Elaine Kemp Chief Officer (Finance) Page 17 of 72
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5. Impacts 5.1 Public Sector Equality Duty and Fairer Scotland Duty Does the report contain information that has an impact as a result of the Public Sector Equality Duty and/or Fairer Scotland Duty? Yes ☒ No ☐ If Yes, please provide a brief summary of the impact? The HRA budget for 2024/25 will ensure that the Council can continue to provide a highly effective and responsive housing management service for all tenants and improve the health and wellbeing and economic outcomes of communities through the delivery of significant additional capital investment in high quality and affordable social housing. If Yes, has an assessment been carried out and published on the council’s website? https://www.northlanarkshire.gov.uk/your-community/equalities/equality- and-fairer-scotland-duty-impact-assessments Yes ☒ No ☐ 5.2 Financial impact Does the report contain any financial impacts? Yes ☒ No ☐ If Yes, have all relevant financial impacts been discussed and agreed with Finance? Yes ☒ No ☐ If Yes, please provide a brief summary of the impact? The financial implications of the 2024/25 Revenue Estimates are outlined throughout the report. 5.3 HR policy impact Does the report contain any HR policy or procedure impacts? Yes ☐ No ☒ If Yes, have all relevant HR impacts been discussed and agreed with People Resources? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.4 Legal impact Does the report contain any legal impacts (such as general legal matters, statutory considerations (including employment law considerations), or new legislation)? Yes ☐ No ☒ If Yes, have all relevant legal impacts been discussed and agreed with Legal and Democratic? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.5 Data protection impact Does the report / project / practice contain or involve the processing of personal data? Yes ☐ No ☒ If Yes, is the processing of this personal data likely to result in a high risk to the data subject? Yes ☐ No ☐ Page 18 of 72
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If Yes, has a Data Protection Impact Assessment (DPIA) been carried out and e- mailed to dataprotection@northlan.gov.uk Yes ☐ No ☐ 5.6 Technology / Digital impact Does the report contain information that has an impact on either technology, digital transformation, service redesign / business change processes, data management, or connectivity / broadband / Wi-Fi? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? Where the impact identifies a requirement for significant technology change, has an assessment been carried out (or is scheduled to be carried out) by the Enterprise Architecture Governance Group (EAGG)? Yes ☐ No ☐ 5.7 Environmental / Carbon impact Does the report / project / practice contain information that has an impact on any environmental or carbon matters? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.8 Communications impact Does the report contain any information that has an impact on the council’s communications activities? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.9 Risk impact Is there a risk impact? Yes ☒ No ☐ If Yes, please provide a brief summary of the key risks and potential impacts, highlighting where the risk(s) are assessed and recorded (e.g. Corporate or Service or Project Risk Registers), and how they are managed? All activities undertaken by the council are subject to risk, and in acknowledging the Council’s approved Risk Management Strategy (September 2012), Services manage these as part of their overall corporate and service planning process. The current economic climate, in particular, has the potential to impact upon the Council’s ability to provide quality services within approved budget levels. The Government’s proposals for welfare reform include a number of changes to the housing benefit system which present significant financial risks to the HRA, including increasing rent arrears and cash collection costs, combined with lower levels of rental income. These risks are increased by the current cost-of-living crisis. These risks will be closely monitored throughout 2024/25 through the Council’s Financial Sustainability risk. 5.10 Armed Forces Covenant Duty Does the report require to take due regard of the Armed Forces Covenant Duty (i.e. does it relate to healthcare, housing, or education services for in-Service or ex- Service personnel, or their families, or widow(er)s)? Yes ☐ No ☒ If Yes, please provide a brief summary of the provision which has been made to ensure there has been appropriate consideration of the particular needs of the Page 19 of 72
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Armed Forces community to make sure that they do not face disadvantage compared to other citizens in the provision of public services. 5.11 Children’s rights and wellbeing impact Does the report contain any information regarding any council activity, service delivery, policy, or plan that has an impact on children and young people up to the age of 18, or on a specific group of these? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact and the provision that has been made to ensure there has been appropriate consideration of the relevant Articles from the United Nations Convention on the Rights of the Child (UNCRC). If Yes, has a Children’s Rights and Wellbeing Impact Assessment (CRWIA) been carried out? Yes ☐ No ☐ Page 20 of 72
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Appendix 1 Housing Revenue Account Cost Pressures 2024/25 £000 £000 Employee Costs Pay awards (2023/24 balance plus 2024/25 estimate) 1,220 Incremental drift 26 Increase in turnover vacancies (500) 746 Reduction in employers pension contribution (2,591) Inflationary Pressures Housing repairs inflation and stock movements 6,830 Trading and support service costs 467 Energy costs 594 Future credit losses 1,129 Release of Ambition funding (733) Void rent loss increased costs 53 8,340 Capital Financing Costs Loan charges associated with increased capital investment 10,174 Movement and profile of housing stock (1,943) Reversal of prior year Use of Reserves 3,088 Cost Pressures Total 17,814 Page 21 of 72
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Appendix 2 Housing Revenue Account Base Budget Savings 2024/25 £000 Employee Costs Reduced costs associated with former employee pensions 110 Property Costs Reduced home loss and disturbance payments linked to the Phase 2 Tower and Walk Up Flat reprovisioning programme 95 Other Operational Efficiencies Reduced operational delivery costs linked to office expenditure and recharges from other service areas (i.e. HRA share of wider operational efficiencies across the Council) 960 Total base budget savings 1,165 Page 22 of 72
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Appendix 3 30 Year Financial Model 2023/24 Revenue Estimates 30 Year Year 2020/25 2025/30 2030/35 2035/40 2040/45 2045/50 Totals Average Mainstream Housing Stock 35,036 34,172 33,404 32,514 31,894 31,839 New Build Housing Stock 1,237 2,239 3,036 3,329 3,372 3,362 Average Housing stock 36,273 36,412 36,440 35,843 35,266 35,201 Capital Investment £000 £000 £000 £000 £000 £000 £000 Prudential borrowing 319,275 591,893 620,251 644,687 832,579 443,366 3,452,051 Capital receipts 41 0 0 0 0 0 41 Other receipts / Government Grants 112,836 109,690 63,782 4,868 0 0 291,176 Sub total 432,152 701,583 684,033 649,555 832,579 443,366 3,743,268 CFCR 129,220 96,682 121,396 135,729 135,731 135,730 754,488 Total resources 561,372 798,265 805,429 785,284 968,310 579,096 4,497,756 Loan Analysis Opening debt 324,109 602,643 1,101,589 1,561,575 1,958,196 2,465,582 324,109 Prudential borrowing 319,275 591,893 620,251 644,687 832,579 443,366 3,452,052 Principal repayment - historic debt 35,018 51,654 62,434 75,517 51,354 30,382 306,359 Principal repayment - new borrowing 5,723 41,293 97,831 172,549 273,839 404,971 996,206 Closing debt 602,643 1,101,589 1,561,575 1,958,196 2,465,582 2,473,595 2,473,596 Per house (£) - Closing Stock 16,614 30,254 42,853 54,633 69,914 70,271 70,271 Housing Revenue Account 135,273 282,533 449,214 657,620 862,465 1,097,968 3,485,073 663,461 720,346 823,383 923,435 1,019,725 1,139,145 5,289,495 798,734 1,002,879 1,272,597 1,581,055 1,882,190 2,237,113 8,774,568 Other income (87,663) (80,545) (80,545) (80,545) (80,545) (80,545) (490,388) Balance to be financed by rents 711,071 922,334 1,192,052 1,500,510 1,801,645 2,156,568 8,284,180 Average weekly rent (£) 78.15 98.98 126.91 161.97 196.78 235.62 Rental Income 711,069 922,334 1,192,050 1,500,511 1,801,646 2,156,572 8,284,182 Average Yearly % increase 4.58% 5.00% 5.00% 4.53% 3.92% 2.96% Capital charges as a % of rent income 19.02% 30.63% 37.68% 43.83% 47.87% 50.91% 5 Year Bands Loan charges Other costs Page 23 of 72
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North Lanarkshire Council Report Audit and Scrutiny Panel Does this report require to be approved? ☒ Yes ☐ No Ref AA/SL Date 20/11/23 Self-Evaluation of the Audit and Scrutiny Panel - outcome report and improvement plan From Archie Aitken, Chief Officer (Legal and Democratic) E-mail AitkenA@northlan.gov.uk E-mail 07939 280102 Executive Summary Through the discrete functions of both Audit and Scrutiny, the Audit and Scrutiny Panel play an important role in relation to the council’s governance arrangements. As set out in the terms of reference in the Scheme of Administration, the purpose of the Panel is “to provide independent assurance to the council and those charged with governance on the adequacy of the council’s risk management framework and internal control environment”. The council’s governance arrangements are reviewed on an annual basis through the Strategic Governance Framework and throughout the year as part of the Internal Audit programme of audit work. These processes support the council in demonstrating compliance with, and commitment to, the good governance principles as set out in the national Delivering Good Governance in Local Government: Framework (2016). An Internal Audit review in 2021 considered there was a risk that “the council may not be able to adequately demonstrate that it has effective audit committee arrangements and/or arrangements to ensure Elected Members have the skills, knowledge and, where appropriate or required, access to relevant training and resources to effectively undertake their role”. To this end, Internal Audit recommended that the Audit and Scrutiny Panel should, in line with good practice, periodically undertake a self-evaluation of how effectively it is discharging its role. An overview of the evaluation framework, process, and timetable for the self-evaluation of the Audit and Scrutiny Panel was provided to the Panel in September 2023 and Elected Members endorsed the approach that was set out in the report. This comprised a request for current Panel members, as well as those who had been members of the Panel since the local government elections in May 2022, to complete an online survey. This report herewith presents the outcome from the self-evaluation of the Audit and Scrutiny Panel as a synopsis in Appendix 1. The resultant improvement plan is set out in Appendix 3 for members of the Panel to approve and to identify any further developments required in this respect. Recommendations It is recommended that the Audit and Scrutiny Panel: (1) Recognise that the outcome from the self-evaluation demonstrates the extent to Item 6 Page 25 of 72
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1. Background 1.1 Members of the Audit and Scrutiny Panel are well versed in the role of the Panel and its statement of purpose to: • Provide independent assurance to the council and those charged with governance on the adequacy of the council’s risk management framework and internal control environment. • Provide independent review of the council’s governance, risk management, performance, and control frameworks and oversee the financial reporting and annual governance processes. • Oversee the council’s internal and external audit arrangements, helping to ensure efficient and effective assurance arrangements are in place. • Undertake the scrutiny function within the council’s governance framework (establishing short life task group reviews, as required) to undertake in-depth examination of particular areas of policy and/or service delivery with a view to making recommendations for improvement. 1.2 The Panel is also a key component of the council’s corporate governance arrangements which are subject to various review and assessment processes. In 2021, an Internal Audit review of Principles E, F, and G from the Delivering Good Governance in Local Government: Framework (2016) considered there was a risk that “the council may not be able to adequately demonstrate that it has effective audit committee arrangements and/or arrangements to ensure Elected Members have the skills, knowledge and, where appropriate or required, access to relevant training and resources to effectively undertake their role”. 1.3 In this respect, Internal Audit recommended that the Audit and Scrutiny Panel should, in line with good practice, periodically undertake a self-evaluation of how effectively it is discharging its role by introducing: a) “A formal process whereby the Audit and Scrutiny Panel periodically undertakes a self-assessment of their performance and activities against CIPFAs Audit Committees: Practical Guidance for Local Authorities (2018), with a report outlining which the Panel is effective in discharging its Audit and Scrutiny roles and, as such, fulfils the Internal Audit recommendations, (2) Approve the implementation of the improvement plan (in Appendix 3) to further strengthen the Panel’s working practices and identify any further developments required in this respect, and (3) Endorse the next steps outlined at paragraphs 2.14 and 2.15 to ensure the Panel remains effective in discharging its Audit and Scrutiny roles in relation to the functions of an Audit Committee as per CIPFAs Audit Committees: Practical Guidance for Local Authorities (2018), and by ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny. The Plan for North Lanarkshire Priority All priorities Ambition statement All ambition statements Programme of Work Statutory / corporate / service requirement Page 26 of 72
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the results of this review including any improvement actions being presented to the Panel and reported to the Policy and Strategy Committee.” b) “A formal process whereby the Audit and Scrutiny Panel periodically undertakes a separate self- assessment of the effectiveness of the performance and activities of the Panel in discharging the Scrutiny aspect of its role.” 1.4 To implement the Internal Audit recommendations, the self-evaluation exercise was incorporated into the review programme for the council’s Strategic Self-Evaluation Framework. The evaluation framework, process, and timetable for the self-evaluation of the Audit and Scrutiny Panel was subsequently developed in line with the Strategic Self-Evaluation Framework and customised in order to best meet the needs, operating environment, and desired outcomes of the function being evaluated. As part of this process, the Chief Officer (Legal and Democratic) was assigned the role of independent Champion for the self-evaluation exercise. 1.5 While there are two specific Internal Audit recommendations noted in paragraph 1.3, the self-evaluation exercise was combined into one to avoid duplicating the use of both Elected Members’ time and officer resources, and to enable the Audit and Scrutiny Panel to be considered as a single entity. This thereby ensures that any improvement actions identified complement the effective operation of both the Audit and Scrutiny aspects of the Panel and not just one at the expense of the other. 1.6 An overview of the evaluation framework, process, and timetable for the self-evaluation of the Audit and Scrutiny Panel was provided to the Panel in September 2023 and Members endorsed the approach to the self-evaluation exercise that was set out in the report. The approach comprised an online survey (open from 5th to 19th September, with 1:1 support available if requested) with the outcome report and improvement plan scheduled to be submitted back to the Panel in cycle 4 of 2023. 1.7 Given the membership of the Audit and Scrutiny Panel had changed following the Local Government elections in May 2022, implementation of the Internal Audit recommendations was rescheduled to allow time for the new arrangements to become more fully embedded. Considering this, and the recent changes which had been made to the Panel’s membership, it was subsequently agreed at the meeting in September 2023 that both current and former members of the Panel (since May 2022) would take part in the online survey. 1.8 Following completion of work to collate and analyse the responses to the online survey, this report herewith - from the Chief Officer (Legal and Democratic) in his role as Champion for the self-evaluation exercise - presents the outcome from the self- evaluation of the Audit and Scrutiny Panel as a synopsis in Appendix 1. The resultant improvement plan is set out in Appendix 3 for members of the Panel to approve and to identify any further developments required in this respect. 2. Self-Evaluation 2.1 Undertaken in line with the corporate approach set out in the Strategic Self-Evaluation Framework, the self-evaluation of the Audit and Scrutiny Panel aims to answer three simple questions - How well are we doing? How do we know? (i.e. What evidence is there to support the view of how well we are doing?), and How can we do better? (i.e. What are we going to do now?). 2.2 A synopsis of the self-evaluation exercise is set out in Appendix 1; this includes the following: Page 27 of 72
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• An outline in terms of what the self-evaluation of the Audit and Scrutiny Panel aimed to achieve. • The assessment framework - which for the Audit function was based on the key principles set out in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and the supporting Audit Committees Practical Guidance for Local Authorities (2018) document. For the Scrutiny function relevant assessment statements were incorporated into the evaluation framework from the Best Value Statutory Guidance (2020). • The assessment process, including timescales - from the initial desktop exercise to identify existing evidence against the respective CIPFA and Best Value guidance (referred to above), to the online survey process, and development of the outcome report and improvement plan. • Respondents - in total 11 Elected Members who currently sit on the Audit and Scrutiny Panel, plus 8 who had formerly been members of the Panel (since May 2022) were given the opportunity to respond to the online survey. • Survey results - the aggregated overall RAG status for the self-evaluation exercise as well as for each of the 4 themes and 25 good practice questions which have been compiled from the results of the online survey (where responses were anonymous). 2.3 The online survey contained 25 good practice questions and presented the opportunity for respondents to: • Provide constructive feedback in line with the experience of being a member of the Audit and Scrutiny Panel by answering Yes, No, Partially, or Don’t Know to each of the 25 good practice questions. A No or Partially response in some questions prompted a further question that asked for more details to help understand any further improvements required in this respect. • Highlight where the Panel works well (in line with its approved terms of reference). • Identify anything that could be improved in relation to the Audit and Scrutiny Panel (in line with the Panel’s approved terms of reference). How well are we doing? 2.4 A RAG status was applied to each of the 25 good practice questions based on how respondents answered each question, this is set out in Table 1 below. Description RAG status applied Respondents replied with a Yes to the question in the online survey = this is an area of good practice. Green Respondents replied with a Partially to the question in the online survey = this is an area that requires further investigation. Amber Respondents replied with a No to the question in the online survey = this is an area that requires further investigation. Red Respondents replied with a Don’t Know to the question in the online survey = this is an area that requires further investigation. Grey Table 1: Description of survey responses and RAG status applied 2.5 The online survey received a 58% response rate, with 11 out of 19 participants answering the 25 good practice questions. The aggregated RAG status for the 25 good practice questions combined is set out in Figure 1 below. A high level summary of the results shows that: Page 28 of 72
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• Notwithstanding the response rate, the results still show a relatively positive response across all 25 questions, with 53% of responses having a Yes response. • There is a much smaller proportion of negative responses in terms of Partially (12%) and No (11%). • Of particular note, however, is the proportion of Don’t Knows (24%) which exceed the responses for Partially and No combined. It is however recognised that the proportion of Don’t Knows will have been influenced by the length of time respondents have been a member of the Audit and Scrutiny Panel. 2.6 Following the online survey the good practice questions considered areas of good practice, which received the highest Yes responses, are listed in Table 2 below. Theme Good practice question % responses = Yes Membership and Support Q15. Does the Panel have good working relations with key people and organisations, including external audit, internal audit, and the chief financial officer? 100% Membership and Support Q16. Is the secretariat and administrative support provided to the Panel adequate? 91% Functions of the Panel Q5. Has the Panel maintained its remit as set out in the Terms of Reference in the approved Scheme of Administration? 73% Effectiveness of the Panel Q19. Does the Panel engage with a wide range of leaders and managers, including discussion of audit findings, risks, and action plans with the responsible officers? 73% Functions of the Panel Q4. Are Members of the Panel committed to training and personal development to update and enhance their knowledge, skills, capacity, and capabilities (where appropriate or required) to deliver Best Value and perform their role on the Panel? 70% Table 2: Areas of good practice (i.e. Yes responses) 2.7 The areas of good practice shown in Table 2 above are further substantiated by the feedback provided in terms of where respondents think the Panel works well (in line with its approved terms of reference). A summary of constructive feedback received in this respect includes the following: a) Panel members are generally clear on the purpose of the Panel and its role in ensuring good governance across the council's operations. b) The Panel works well in terms of finding items for scrutiny. c) The Panel works well with Internal Audit. d) The Panel works well in identifying areas of the council's operations that require scrutiny and works closely with officers to ensure that appropriate scrutiny is undertaken. e) I think the Panel operates well in terms of its functions. f) The Panel is excellent at scrutinising all the papers and is prepared to question, ask for a deep dive, and support where necessary. g) I think the Panel provides a good level of overview and scrutiny which has its own value over and above that provided at departmental level. Page 29 of 72
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h) Panel works pretty well with council officers to continue to improve the delivery of public services. i) I think that there is a good relationship between the Panel and council officers. j) Good interaction between member and support. k) An interested and effective group with no political bias. How can we do better? 2.8 Following the online survey, the good practice questions which are considered to require further investigation, and which received the highest combined responses for Partially, No, and Don’t Know are listed in Table 3 below. * Note, for some questions the responses have been aggregated to clearly differentiate between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined). This has been applied in questions where the responses showed a significant differentiation one way or the other in order to further support a clear identification of areas for improvement. Theme Good practice question % responses = Partially, No, or Don’t Know combined Membership and Support Q12. Do Members of the Panel have appropriate knowledge and skills? * (a) 27% compared to (b) 73%. 73% No + Partially + Don’t Know Panel Purpose and Governance Q1. Is the role and purpose of the Audit and Scrutiny Panel understood and accepted across the council? * (a) 46% compared to (b) 54% 54% No + Partially Panel Purpose and Governance Q3. Are the arrangements to hold the Panel to account for its performance operating satisfactorily? * (a) 46% compared to (b) 54% 54% Partially + Don’t Know Table 3: Areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) 2.9 As noted in paragraph 2.5, overall there are a higher proportion of Don’t Know responses (24%) than Partially (12%) and No (11%) combined. While it is recognised that the proportion of Don’t Knows will have been influenced by the length of time respondents have been a member of the Audit and Scrutiny Panel, this does present an opportunity to highlight specific areas for improvement. The good practice questions which received the highest Don’t Know responses are listed in Table 4 below. Theme Good practice question % responses = Don’t Know Effectiveness of the Panel Q22. Has the Panel evaluated whether and how it is adding value to the organisation? * (a) 18% compared to (b) 82% 46% Functions of the Panel Q8. Has the Audit and Scrutiny Panel considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them? * (a) 27% compared to (b) 73% 64% Membership Q14. Are arrangements in place to support the Panel with 36% Page 30 of 72
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and Support briefings and training? * (a) 27% compared to (b) 73% Effectiveness of the Panel Q21. Has the Panel obtained feedback on its performance from those interacting with the Panel or relying on its work? * (a) 27% compared to (b) 73% 46% Functions of the Panel Q6. Is an evaluation undertaken to assess whether the Panel is fulfilling its terms of reference and that adequate consideration has been given to all core areas in the terms of reference? 46% Functions of the Panel Q7. Where coverage of core areas in the terms of reference has been found to be limited, are plans in place to address this? 46% Effectiveness of the Panel Q23 Does the Panel have an action plan to improve any areas of weakness. 46% Effectiveness of the Panel Q24. Does the Panel publish an annual report to account for its performance and explain its work? 46% Table 4: Areas requiring further investigation (i.e. Don’t Know responses) 2.10 The areas requiring further investigation shown in Tables 3 and 4 above are further substantiated by the feedback provided in terms of where respondents think things could be improved (in line with the Panel’s approved terms of reference). A summary of constructive feedback received in this respect includes the following: a) Training of members of the Panel on a regular basis. b) Explanations to ensure everyone is clear in what the purpose of the Panel is, what is expected of them and that they understand the purpose of the Panel. c) There is scope to improve the information presented in reports, responses to questions, and service representation. d) I would like more financial assessments, not just process, in relation to real Best Value. e) Regular reviews and prioritise potential scrutiny topics and evaluate outcomes to demonstrate added value. f) Scope of Internal Audit activities in relation to the work of the Panel. g) More monitoring and evaluation to measure success in terms of outcomes. h) There have recently been significant changes in the composition of Elected Members sitting on the panel. A concern lies that this has diluted the knowledge and skills within the Panel and that further training may be required to ensure that the Panel discharges its duties and responsibilities effectively and in line with terms of reference. i) There is scope to improve participation in the scrutiny of papers. j) Internal Audit and Scrutiny items are effective but need to be expanded on even if this means expanding the remit of the Panel. Improvement plan 2.11 Where the results of the self-evaluation exercise show a high degree of performance against the good practice questions, CIPFA consider this to be an indicator that the Audit and Scrutiny Panel is soundly based and has in place a knowledgeable membership. As well as informing an improvement plan for the Panel, the self- evaluation exercise is also considered an important improvement tool in terms of supporting future planning for the Panel’s work programme, training plan, and annual report. 2.12 As such, the analysis from the detailed survey responses set out in the synopsis in Appendix 1, and the summary overview in paragraphs 2.4 to 2.10 above, show a relatively positive response in terms of the Audit and Scrutiny Panel effectively discharging its duties with a high degree of performance being reflected against the Page 31 of 72
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following good practice questions: Q15. 100% of respondents consider that the Panel has good working relations with key people and organisations, including external audit, internal audit, and the chief financial officer. Q16. 91% of respondents consider that the secretariat and administrative support provided to the Panel is adequate. Q5. 73% of respondents consider that the Panel has maintained its remit as set out in the Terms of Reference in the approved Scheme of Administration. Q19. 73% of respondents consider that the Panel engages with a wide range of leaders and managers, including discussion of audit findings, risks, and action plans with the responsible officers. Q4. 70% of respondents consider that members of the Panel are committed to training and personal development to update and enhance their knowledge, skills, capacity, and capabilities (where appropriate or required) to deliver Best Value and perform their role on the Panel. 2.13 As noted in the synopsis in Appendix 1, and the summary overview in paragraphs 2.4 to 2.10 above, there are also clear areas for improvement for which improvement actions can be identified - these are listed below. For these areas, the improvement plan in Appendix 3 sets out the next steps. Q22. 82% of respondents considered that the Panel had either Partially or had Not evaluated whether and how it is adding value to the organisation, or they Didn’t Know if this was the case. Q12. 73% of respondents considered that members of the Panel either Partially or did Not have appropriate knowledge and skills, or they Didn’t Know if this was the case. Q8. 73% of respondents considered that the Audit and Scrutiny Panel had Not considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them, or they Didn’t Know if this was the case. Q14. 73% of respondents considered that either Partially there were (or there were Not) arrangements in place to support the Panel with briefings and training, or they Didn’t Know if this was the case. Q21. 73% of respondents considered that the Panel had either Partially or had Not obtained feedback on its performance from those interacting with the Panel or relying on its work, or they Didn’t Know if this was the case. Q1. 54% of respondents considered that the role and purpose of the Audit and Scrutiny Panel was either Partially or Not understood and accepted across the council. Q3. 54% of respondents considered that Partially there were arrangements in place to hold the Panel to account for its performance operating satisfactorily, or they Didn’t Know if this was the case. Next steps 2.14 From a Scrutiny perspective, actions from the Improvement Plan in Appendix 3 will be incorporated into the Scrutiny Work Programme which is reported to the Panel every six months. This will enable Elected Members on the Panel to monitor the progress and effectiveness of the improvement actions implemented along with the Panel’s routine activity. 2.15 As per the recommendations from the Internal Audit report in 2021 (noted in paragraph 1.3 above), a report outlining the results of the self-evaluation together with the improvement plan which has been approved by the Audit and Scrutiny Panel will be subsequently reported to the Policy and Strategy Committee in cycle 4 of 2023. 3. Measures of success 3.1 Measures of success will be identified in the form of evidence which demonstrates that the council has effective Audit and Scrutiny Panel arrangements. Specifically, that the: Page 32 of 72
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• Panel effectively discharges its duty in line with the council’s Scheme of Administration. • Performance and activities of the Panel are effective in discharging the audit aspect of its role in line with CIPFAs Audit Committees Practical Guidance for Local Authorities (2018). • Performance and activities of the Panel are effective in discharging the scrutiny aspect of its role in line with ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny. 3.2 Further measures of success will reflect the skills and knowledge of the Elected Members on the Audit and Scrutiny Panel, and their commitment to ensuring they have (where appropriate or required) access to relevant training and resources to enhance their knowledge, skills, capacity, and capabilities in order to effectively undertake their role on the Panel. 4. Supporting documentation 4.1 Appendix 1: Synopsis of the self-evaluation of the Audit and Scrutiny Panel. Appendix 2: 25 good practice questions. Appendix 3: Improvement Plan. Archie Aitken Chief Officer (Legal and Democratic) 5. Impacts 5.1 Public Sector Equality Duty and Fairer Scotland Duty Does the report contain information that has an impact as a result of the Public Sector Equality Duty and/or Fairer Scotland Duty? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? If Yes, has an assessment been carried out and published on the council’s website? https://www.northlanarkshire.gov.uk/your-community/equalities/equality- and-fairer-scotland-duty-impact-assessments Yes ☐ No ☐ 5.2 Financial impact Does the report contain any financial impacts? Yes ☐ No ☒ If Yes, have all relevant financial impacts been discussed and agreed with Finance? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.3 HR policy impact Does the report contain any HR policy or procedure impacts? Yes ☐ No ☒ Page 33 of 72
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If Yes, have all relevant HR impacts been discussed and agreed with People Resources? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.4 Legal impact Does the report contain any legal impacts (such as general legal matters, statutory considerations (including employment law considerations), or new legislation)? Yes ☐ No ☒ If Yes, have all relevant legal impacts been discussed and agreed with Legal and Democratic? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.5 Data protection impact Does the report / project / practice contain or involve the processing of personal data? Yes ☐ No ☒ If Yes, is the processing of this personal data likely to result in a high risk to the data subject? Yes ☐ No ☐ If Yes, has a Data Protection Impact Assessment (DPIA) been carried out and e- mailed to dataprotection@northlan.gov.uk Yes ☐ No ☐ 5.6 Technology / Digital impact Does the report contain information that has an impact on either technology, digital transformation, service redesign / business change processes, data management, or connectivity / broadband / Wi-Fi? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? Where the impact identifies a requirement for significant technology change, has an assessment been carried out (or is scheduled to be carried out) by the Enterprise Architecture Governance Group (EAGG)? Yes ☐ No ☐ 5.7 Environmental / Carbon impact Does the report / project / practice contain information that has an impact on any environmental or carbon matters? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.8 Communications impact Does the report contain any information that has an impact on the council’s communications activities? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.9 Risk impact Is there a risk impact? Yes ☒ No ☐ If Yes, please provide a brief summary of the key risks and potential impacts, highlighting where the risk(s) are assessed and recorded (e.g. Corporate or Service or Project Risk Registers), and how they are managed? Page 34 of 72
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Implementation of a self-evaluation of the Audit and Scrutiny Panel contributes to the mitigation of the risk on the Corporate Risk Register for governance, leadership, and decision making. 5.10 Armed Forces Covenant Duty Does the report require to take due regard of the Armed Forces Covenant Duty (i.e. does it relate to healthcare, housing, or education services for in-Service or ex- Service personnel, or their families, or widow(er)s)? Yes ☐ No ☒ If Yes, please provide a brief summary of the provision which has been made to ensure there has been appropriate consideration of the particular needs of the Armed Forces community to make sure that they do not face disadvantage compared to other citizens in the provision of public services. 5.11 Children’s rights and wellbeing impact Does the report contain any information regarding any council activity, service delivery, policy, or plan that has an impact on children and young people up to the age of 18, or on a specific group of these? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact and the provision that has been made to ensure there has been appropriate consideration of the relevant Articles from the United Nations Convention on the Rights of the Child (UNCRC). If Yes, has a Children’s Rights and Wellbeing Impact Assessment (CRWIA) been carried out? Yes ☐ No ☐ Page 35 of 72
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Appendix 1 SYNOPSIS FOR THE SELF-EVALUATION OF: The Audit and Scrutiny Panel ASSESSMENT FRAMEWORK: The framework used reflects the function being assessed and the context and operating environment of that function. As such, the framework incorporates: • The key principles set out in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and the supporting Audit Committees Practical Guidance for Local Authorities (2018) document. These are considered to be the essential factors in developing effective Audit aspects for such a committee. • From a Scrutiny perspective, the Audit and Scrutiny Panel has a key role to play in terms of ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny. As such relevant assessment statements have also been incorporated into this evaluation framework from the Best Value Statutory Guidance (2020). ASSESSMENT TEAM: • Council’s Project Team: Archie Aitken - Chief Officer (Legal and Democratic) / CMT Champion, Susan Lawrie (Strategy and Performance Manager). • Respondents: 11 Elected Members currently on the Audit and Scrutiny Panel (as at September 2023) plus 8 who had formerly served on the Panel since the local government elections in May 2022 were given the opportunity to respond to the online survey: Councillors S Watson, HE Dunbar, H Brannan-McVey, A Duffy-Lawson, T Fisher, M Hughes, J Hume, D Johnston, T Johnston, P Kelly, JJ Leckie, G Lennon, H Loughran, A Masterton, B McCulloch, F McNally, G Robinson, K Stevenson, R Sullivan. ASSESSMENT PROCESS: • August 2023 - Desktop exercise to identify existing evidence against the respective CIPFA and Best Value guidance. • 4th September 2023 - Report to the Panel reiterated the Internal Audit recommendations and provided an overview of the evaluation framework, process, and timetable for the self-evaluation which was endorsed by the Panel. • 5th September 2023 - Chief Officer (Legal and Democratic) shared the online survey with the respondents (listed above), offering 1:1 support if requested. • 5th to 19th September 2023 - Online survey open. • 20th to 26th September 2023 - Analysis of survey results and development of outcome and improvement plan which were subsequently reviewed by the council’s Corporate Management Team on 6th October for oversight purposes. • 25th October 2023 - Presentation of outcome report and improvement plan to the Audit and Scrutiny Panel Conveners meeting. • 20th November 2023 - Presentation of outcome report and improvement plan to the Audit and Scrutiny Panel committee meeting for Elected Members on the Panel to discuss and agree implementation of the improvement plan. WHAT THE EVALUATION AIMS TO ACHIEVE: Through the discrete functions of both Audit and Scrutiny, the Audit and Scrutiny Panel provide an independent and high level resource to support good governance and strong public financial management. The Panel’s role in respect of the Audit function reflect the standards set out in the Chartered Institute of Public Finance and Accountancy (CIPFA) Position Statement: Audit Committees in Local Authorities (2018). This role, and the wider Terms of Reference for the Panel which includes the Scrutiny function, is set out in the Scheme of Administration which was most recently approved at the Council meeting in October 2022. The council’s governance arrangements are reviewed on an annual basis through the Strategic Governance Framework and throughout the year through the Internal Audit programme of work. These processes support the council in demonstrating compliance with, and commitment to, the good governance principles as set out in the national Delivering Good Governance in Local Government: Framework (2016). A review of Principles E, F, and G from the national Framework was undertaken by Internal Audit in 2021. This focused on corporate governance that relates to the following principles: • E - Developing the entity’s capacity, including the capability of its leadership and the individuals within it. • F - Managing risks and performance through robust internal control and strong public financial management. • G - Implementing good practices in transparency, reporting, and audit to deliver effective accountability. In relation to the effectiveness of the Audit and Scrutiny Panel, the Internal Audit report (submitted to the Panel in March 2021) considered there was a risk that: “the council may not be able to adequately demonstrate that it has effective audit committee arrangements and/or arrangements to ensure Elected Members have the skills, knowledge and, where appropriate or required, access to relevant training and resources to effectively undertake their role”. In this respect, Internal Audit recommended that the Audit and Scrutiny Panel should, in line with good practice, undertake a self-evaluation of how effectively it is discharging its role by introducing: a) “A formal process whereby the Audit and Scrutiny Panel periodically undertakes a self- assessment of their performance and activities against CIPFAs Audit Committees: Practical Guidance for Local Authorities (2018), with a report outlining the results of this review including any improvement actions being presented to the Panel and reported to the Policy and Strategy Committee.” b) “A formal process whereby the Audit and Scrutiny Panel periodically undertakes a separate self- assessment of the effectiveness of the performance and activities of the Panel in discharging the Scrutiny aspect of its role.” At the Panel meeting in September 2023, members endorsed the approach to the self-evaluation exercise which was set out at that time and agreed that Elected Members currently on the Audit and Scrutiny Panel would take part in the self-evaluation exercise. At this meeting, it was also agreed that the self-evaluation would include those Elected Members who had experience of formerly serving on the Panel since the local government elections in May 2022. Page 36 of 72
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HEADLINE RESULTS: The online survey received a 58% response rate, with 11 out of 19 participants answering the 25 good practice questions. The online survey asked respondents to state how much they agreed with the 25 good practice questions by responding either Yes, Partially, No, or Don’t Know. The aggregated RAG status for the 25 good practice questions combined is set out in Figure 1. A high level summary of the results shows that: • Notwithstanding the response rate, the results still show a relatively positive response across all 25 questions, with 53% of responses having a Yes response. • There is a much smaller proportion of negative responses in terms of Partially (12%) and No (11%). • Of particular note, however, is the proportion of Don’t Knows (24%) which exceed the responses for Partially and No combined. It is however recognised that the proportion of Don’t Knows will have been influenced by the length of time respondents have been a member of the Audit and Scrutiny Panel. The evaluation framework for the self-evaluation of the Audit and Scrutiny Panel covered four themes: A. Panel Purpose and Governance. B. Functions of the Panel. C. Membership and Support. D. Effectiveness of the Panel. Following completion of the online survey, the overall RAG status for each of the 4 themes is show in Figure 2. This shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined). A high level summary of the results shows that: • The theme of Membership and Support received the highest proportion of positive (Yes) responses (60%). • Effectiveness of the Panel received the lowest proportion of positive (Yes) responses (48%). • When responses for Partially, No, and Don’t Know are combined the themes which require further investigation the most are the Effectiveness of the Panel (52%) and the Functions of the Panel (51%). Looking at the Partially, No, and Don’t Know responses in more detail (as depicted in Figure 3), this shows that: • The theme for Panel Purpose and Governance received the highest proportion of negative responses (Partial and No combined) with 35% in this respect. Page 37 of 72
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• The proportion of Don’t Knows are highest in the themes of Functions of the Panel (35%) and Effectiveness of the Panel (31%). • Conversely for the Panel Purpose and Governance theme there is a much lower proportion of Don’t Knows (9%). Page 38 of 72
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FULL RESULTS: Delving deeper into the results from the online survey, the % of respondents who answered either Yes, Partially, No, or Don’t Know for each of the 25 good practice questions is show in Figure 4. This includes a RAG status to provide a visual representative of the results, i.e. • Yes = Green • Partially = Amber • No = Red • Don’t Know = Grey The good practice questions that received the highest positive (Yes) responses are listed below: Membership and Support • Q15 - 100% of respondents said Yes, the Panel has good working relations with key people and organisations, including external audit, internal audit, and the chief financial officer. • Q16 - 91% of respondents said Yes, the secretariat and administrative support provided to the Panel is adequate. Functions of the Panel • Q5 - 73% of respondents said Yes, the Panel has maintained its remit as set out in the Terms of Reference in the approved Scheme of Administration? • Q4 - 70% of respondents said Yes, Members of the Panel are committed to training and personal development to update and enhance their knowledge, skills, capacity, and capabilities (where appropriate or required) to deliver Best Value and perform their role on the Panel. Effectiveness of the Panel • Q19 - 73% of respondents said Yes, the Panel engages with a wide range of leaders and managers, including discussion of audit findings, risks, and action plans with the responsible officers. The good practice questions that received the highest negative responses (Partially and/or No and/or Don’t Know) are listed below: Panel Purpose and Governance • Q1 - 54% of respondents replied to say that the role and purpose of the Audit and Scrutiny Panel was either Partially (27%) or Not (27%) understood and accepted across the council. With Partially and No combined for this question, this is a higher proportion than the 46% who responded to say Yes. • Q3 - 54% of respondents replied to say that the Panel either Partially (27%) provided support to the council in meeting the requirements of good governance or they Didn’t Know (27%) if this was the case. With Partially and Don’t Know combined for this question, this is a higher proportion than the 46% who responded to say Yes. Page 39 of 72
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Membership and Support • Q12 - 45% of respondents replied to say that Members of the Panel either Partially (27%) or did Not (18%) have appropriate knowledge and skills. When the responses to this question are considered overall this shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) to be (a) 27% compared to (b) 73%. The good practice questions that received the highest individual Don’t Know responses are listed below: Functions of the Panel • Q8 - 64% of respondents Didn’t Know if the Audit and Scrutiny Panel considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them. When the responses to this question are considered overall this shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) to be (a) 27% compared to (b) 73%. • Q6 - 46% Didn’t Know if there was an evaluation undertaken to assess whether the Panel is fulfilling its terms of reference and that adequate consideration has been given to all core areas in the terms of reference. • Q7 - 46% Didn’t Know if coverage of core areas in the terms of reference had been found to be limited, or if plans were in place to address this. Membership and Support • Q14 - 36% Didn’t Know if arrangements were in place to support the Panel with briefings and training. When the responses to this question are considered overall this shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) to be 27% compared to 73%. Effectiveness of the Panel • Q21 - 46% Didn’t Know if the Panel obtained feedback on its performance from those interacting with the Panel or relying on its work. When the responses to this question are considered overall this shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) to be (a) 27% compared to (b) 73%. • Q22 - 46% Didn’t Know if the Panel evaluated whether and how it is adding value to the organisation. When the responses to this question are considered overall this shows the differentiation between (a) areas of good practice (i.e. Yes responses) and (b) areas requiring further investigation (i.e. Partially, No, and Don’t Know responses combined) to be (a) 18% compared to (b) 82%. • Q23 - 46% Didn’t Know if the Panel have an action plan to improve any areas of weakness. • Q24 - 46% Didn’t Know if the Panel published an annual report to account for its performance and explain its work. Page 40 of 72
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Context and evidence base. Context is an important first step in a self-evaluation exercise in order to ensure a clear understanding of the operating environment of the function being evaluated. For the self-evaluation of the Audit and Scrutiny Panel, initial desktop work was undertaken to gather evidence to ensure that the results from the self-evaluation exercise can be cross checked from multiple sources in order to increase the reliability and validity of the findings, as well as help to ensure a wider understanding of complex issues and facilitate the identification of more complete and fully informed areas for improvement. The section on the left below reflects the outcome of the initial desktop exercise and contains the pre-populated evidence and context base regarding the operation of the Panel in line with the council’s decision making and committee arrangements as set out in the approved Standing Orders and Scheme of Delegation. This section also reflects updates in terms of the council’s corporate governance arrangements which have been set out in various reports to the Panel over the course of 2022 and 2023. The section on the right below sets out the outputs provided by respondents who replied to the online survey. In relation to the qualitative comments on the right, these have been handled with a significant degree of sensitivity to ensure that responses remain anonymous, and that feedback is clear and constructive in informing future improvements to the Audit and Scrutiny Panel. Panel Purpose and Governance Pre-populated evidence and context base Outputs provided by the respondents who replied to the online survey • Local authorities are corporate bodies created by statute and must make corporate decisions. Legislation allows local authorities to delegate most decision making to committees, sub-committees, or officers. This means that committees only operate within the remits given to them by their council. The council has delegated certain matters to committees, sub- committees and officers, and the Standing Orders set out the rules which apply to the running and operation of council and its committee meetings. The latest version of the Standing Orders is December 2022. • The Scheme of Administration provides the details and different functions of committees and other groups of the council and the delegation of authority to carry out the functions of the council. It sets out the terms of reference for committees, sub-committees, and panels of the council. At its meeting on 6th October 2022, the Council approved new governance arrangements and the Scheme of Administration. • The Audit and Scrutiny Panel was established in its current form in 2017, with Audit / Governance and Scrutiny being separate committees prior to that. The current Audit and Q1. Is the role and purpose of the Audit and Scrutiny Panel understood and accepted across the council? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “I think this is understood by panel members, but I doubt that the role and purpose is fully understood by elected members not on the panel.” • “Unless involved in the panel I don't think people understand the panel.” • “There is a reluctance to provide answers to questions.” • “Some members are not involved. I do not know how much awareness staff have.” Q2. Does the Panel provide support to the council in meeting the requirements of good governance? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “The panel can only provide a level of good governance if officers respond effectively to issues raised by the panel, this is not always the case.” Page 41 of 72
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Scrutiny Panel has two discrete functions - Audit and Scrutiny, with corporate governance a key aspect within both of these functions. • As per the Scheme of Administration approved at the Council meeting in October 2022, the Audit and Scrutiny Panel is a standing committee of North Lanarkshire Council and a Sub- Committee of the Policy and Strategy Committee. • The Audit and Scrutiny Panel’s remit in relation to accountability arrangements is to report to the council’s Policy and Strategy Committee on the Panel’s findings, conclusions, and recommendations concerning the adequacy and effectiveness of the council’s governance, risk management and internal control frameworks, financial reporting arrangements, internal and external audit arrangements, the performance of the council in delivering upon its priorities, and the adequacy and effectiveness of the council's performance and improvement arrangements. It is also required to report to the Policy and Strategy Committee on a regular basis on the Panel’s performance in relation to its Terms of Reference and the effectiveness of the Panel in meeting its purpose. • The Terms of Reference for the Audit and Scrutiny Panel are set out in the Scheme of Administration. Each year the Strategic Governance Framework provides the evidence for production of the Annual Governance Statement to demonstrate that the purpose, activities, and functions of the council’s Audit and Scrutiny Panel reflect the standards set out in CIPFAs Position Statement: Audit Committees in Local Authorities (2018). Q3. Are the arrangements to hold the Panel to account for its performance operating satisfactorily? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “The panel generally operates within its own structure and holds itself to account. Some external assessment is carried out but mostly relates to process.” Q4. Are Members of the Panel committed to training and personal development to update and enhance their knowledge, skills, capacity, and capabilities (where appropriate or required) to deliver Best Value and perform their role on the Panel? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “I was provided with no training for the panel and training offered to elected members at the start of term was a lot to take in and even if undertaken then will be forgotten easily as time passes.” • “I’m not sure on all members.” • “Not all members on the Panel are as committed or interested in updating their knowledge.” Feedback from respondents on the Panel’s Purpose and Governance in terms of where they think the Panel works well (in line with its approved terms of reference): • “By and large it works well, but there are times where answers are not always forthcoming.” • “Excellent input from Ken Adamson and his team and Linda and Susan on Scrutiny, as well as the council officers.” • “Panel members are generally clear on the purpose of the panel and its role in ensuring good governance across the council's operations.” • “The Panel works well with Internal Audit. However, it can only be as effective as the information it is given. The information from officers often has a positive bias.” • “The Panel works well in terms of finding items for scrutiny.” • “I am unsure of this, as a recent member to the Panel I feel I do not know enough about all the details yet.” Feedback from respondents on the Panel’s Purpose and Governance in terms of where they think things could be improved (in line with the Panel’s approved terms of reference): • “Not sure.” • “If questions to be submitted to officers were provided beforehand, there is little point in meeting or following up with further questions for scrutiny.” • “There needs to be better co-ordination between departments. Questions are not always answered if an item involves multiple departments.” • “All potential improvements are discussed with Ken Adamson.” Page 42 of 72
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• “Information needs to be unbiased and reflect the actual full circumstances. Also some officers are poor in responding to issues raised by Internal Audit and members.” • “Training of members of the Panel on a regular basis, explanations to ensure everyone is clear in what the purpose of the Panel is, what is expected of them and that they understand the purpose of the Panel.” Functions of the Panel Pre-populated evidence and context base Outputs provided by the respondents who replied to the online survey • The Terms of Reference for the Audit and Scrutiny Panel explicitly address the following areas from CIPFAs Position Statement: Audit Committees in Local Authorities (2018), i.e. good governance, assurance framework, internal audit, external audit, financial reporting, risk management, value for money, and counter fraud and corruption. • Standing agenda item number 1 on all agendas for Council and Committee meetings is Declarations of Interest in terms of the Ethical Standards in Public Life Etc. (Scotland) Act 2000. Any declarations made are recorded in the minutes. • Good governance enables the council to effectively pursue the ambition set out in The Plan for North Lanarkshire within appropriate controls and the management of risk. It is also central to ensuring effective scrutiny and delivery of statutory Best Value obligations. The changes in the national approach to auditing Best Value were reported to the Audit and Scrutiny Panel in February 2023. • This report also set out the role of Panel members in this respect. These changes move the audit of Best Value from once every five years to an annual occurrence that is undertaken as part of the external auditors Annual Audit Report (AAR) process. • Reflecting the principles in the national Delivering Good Governance in Local Government: Framework, the council’s local code of governance is set out in the Strategic Governance Framework which was initially approved in February 2020 and subsequently refreshed and approved by the Audit and Scrutiny Panel annually thereafter; the most Q5. Has the Panel maintained its remit as set out in the Terms of Reference in the approved Scheme of Administration? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • Q6. Is an evaluation undertaken to assess whether the Panel is fulfilling its terms of reference and that adequate consideration has been given to all core areas in the terms of reference? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “I don't recall a meaningful evaluation of the terms of reference.” • “Not sure if evaluations have effectively taken place in core areas.” Q7. Where coverage of core areas in the terms of reference has been found to be limited, are plans in place to address this? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “We rely on officers following up after the meeting. Cross departmental representation would alleviate some of this.” Page 43 of 72
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recent in June 2023. Q8. Has the Audit and Scrutiny Panel considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them? Q9. Is the Panel’s role clear in relation to ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny? Q10. Do the scrutiny structures in the council support Members in reviewing and challenging performance? Feedback from respondents on the Functions of the Panel in terms of where they think the Panel works well (in line with its approved terms of reference): • “Not sure.” • “Generally speaking, yes.” • “We have several Panel members who probe deeply into the papers and then question the answers.” • “The Panel works well in identifying areas of the council's operations that require scrutiny and works closely with officers to ensure that appropriate scrutiny is undertaken.” • “The Internal Audit plans and investigations are generally acceptable, and some officers respond well to the findings.” • “I think the Panel operates well in terms of its functions.” • “Scrutiny Panel mainly works well as the Panel and the council’s executive views it in a positive light.” Feedback from respondents on the Functions of the Panel in terms of where they think things could be improved (in line with the Panel’s approved terms of reference): • “It falls on cross departmental representation.” • “Any potential changes are discussed with the Chief Officer Audit and Risk.” • “Officer's response is the main problem. I would like more financial assessments, not just process, in relation to real Best Value. Benchmarking is also an area that would be useful.” Page 44 of 72
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Membership and support Pre-populated evidence and context base Outputs provided by the respondents who replied to the online survey • 11 Elected Members sit on the Audit and Scrutiny Panel. Membership is in line with appointments to all committees and other bodies and these places are decided upon at a meeting of the Council. • Panel meetings are held quarterly in line with the council’s arrangements for committee meetings which support the implementation of the Scheme of Administration. At its meeting on 6th October 2022, the Council approved new governance arrangements - including the membership of committees, sub-committees, panels, and outside bodies and the timetable of meetings for 2022-27. • The Convener and Vice Convener for all council’s committees, sub-committees and panels were approved at the Council meeting in August 2022. • The latest membership changes to the Audit and Scrutiny Panel were approved at the Council meeting in June 2023. • The Committee Services team within Legal and Democratic provide secretariat and administrative support to all of the council’s committees, including the Audit and Scrutiny Panel. • The Chief Officer (Audit and Risk) supports the Panel on matters relating to internal audit, external audit, and risk management. • The Chief Officer (Business and Digital) supports the Panel on matters relating to scrutiny, Best Value, and Arm’s Length External Organisation (ALEO) assurance reporting. Matters in relation to corporate governance can be covered by either of these two Chief Officers, depending on the particular subject matter. • The Chief Officer (Finance) supports the Panel on matters relating to financial reporting. • Any Chief Officer can be called in by the Panel to provide further support, where appropriate, on service specific queries matters. • LearnNL provides an online portal for all Elected Members training and development needs, as well as an induction Q11. Does the Convener of the Panel have appropriate knowledge and skills? Q12. Do Members of the Panel have appropriate knowledge and skills? Q13. Do Members of the Panel receive sufficient support to perform their role on the Panel? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “CIPFA and Best Value information and requirements should be reviewed and discussed more often particularly when new members are involved.” • “I think training for new members of the Panel and a refresh for existing members would be a good idea.” • As a recent member to the Panel, I was not provided with any details.” Q14. Are arrangements in place to support the Panel with briefings and training? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “New members - training required.” • “Some arrangements are in place and used, but could be increased in scope, again particularly for new members.” • “Positively moving forward where appropriate, and if required, more training and briefings would be beneficial.” Page 45 of 72
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programme for new Elected Members: https://learnnl.learningpool.com/login/index.php Q15. Does the Panel have good working relations with key people and organisations, including external audit, internal audit, and the chief financial officer? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • Q16. Is the secretariat and administrative support provided to the Panel adequate? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • Q17. Does the Panel have access to clear, timely, and sufficiently detailed information that allows them to carry out their governance and scrutiny role? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “It would be occasionally helpful if papers could be available earlier.” • “Officer's information and responses to issued raised by Internal audit audits should be better.” Feedback from respondents on the Panel’s Membership and Support in terms of where they think the Panel works well (in line with its approved terms of reference): • “Good interaction between member and support.” • “An interested and effective group with no political bias.” • “Internal Audit reports are good.” • “I think that there is a good relationship between the Panel and council officers.” • “Panel works pretty well with council officers to continue to improve the delivery of public services.” Feedback from respondents on the Panel’s Membership and Support in terms of where they think things could be improved (in line with the Panel’s approved terms of reference): • “There have recently been significant changes in the composition of elected members sitting on the panel. A concern lies that this has diluted the knowledge and skills within the Panel and that further training may be required to ensure that the Panel discharges its duties and responsibilities effectively and in line with terms of reference.” • “Earlier papers and better cross departmental representation.” • “There has been a turnover of members, so a meeting has been arranged with the Chief Officer Audit to organise a Page 46 of 72
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training session.” • “Training for new members.” • “Officer's information and responses to issues raised.” • “Scope of Internal Audit activities.” • “Further training as outlined above.” • “Regular reviews and prioritise potential scrutiny topics and evaluate outcomes to demonstrate added value.” Effectiveness of the Panel Pre-populated evidence and context base Outputs provided by the respondents who replied to the online survey • Internal Audit undertakes a programme of work which is approved by the Audit and Scrutiny Panel on an annual basis; this is based on the Internal Audit Annual Plan. This plan is risk based and is periodically updated to reflect evolving issues and changes. The most recent was approved in May 2023. • A log is maintained of Audit and Risk related items to allow Elected Members to track implementation of outstanding requests and recommendations made by the Panel; log as at September 2023. • An update to the assessment and prioritisation process (previously approved in 2018 to establish a work programme for the scrutiny function of the Panel) was reported to the Panel in September 2022. Through this process members of the Panel are able to submit items, functions, or activities requiring scrutiny which are then assessed and prioritised in line with the approved framework. This process was further updated in September 2022 to ensure scrutiny activity is framed within the context of The Plan for North Lanarkshire. • A further report in February 2023 combined the previous twofold approach to the scrutiny function of the Panel - which comprises (1) items, functions, or activities requiring scrutiny identified and submitted by Panel members, and (2) the presentation of information and reports aligned to the long-term vision set out in The Plan for North Lanarkshire and its supporting strategic frameworks - into the one composite Scrutiny Work Programme. This composite programme listed all scrutiny related reports scheduled to be presented to the Panel during each cycle of 2023/24. Q18. Are meetings effective with a good level of discussion and engagement from all Panel members? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • “Some members are not engaged.” • “Not all members contribute.” • “I think it needs to be clear that the Panel is apolitical and that we all share a duty to scrutinise the papers in front of us regardless of party politics.” Q19. Does the Panel engage with a wide range of leaders and managers, including discussion of audit findings, risks, and action plans with the responsible officers? Q20. Does the Panel make recommendations for the improvement of governance, risk, control, and performance and are these acted on? Page 47 of 72
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Q21. Has the Panel obtained feedback on its performance from those interacting with the Panel or relying on its work? Q22. Has the Panel evaluated whether and how it is adding value to the organisation? Q23. Does the Panel have an action plan to improve any areas of weakness? Q24. Does the Panel publish an annual report to account for its performance and explain its work? Q25. Is the Panel assured that its scrutiny of council performance adds value to the scrutiny activity which already takes place at Service Committee level and does not duplicate efforts? Where respondents replied either Partially or No to this question, further information was requested; the responses provided are therefore noted below: • Feedback from respondents on the Effectiveness of the Panel in terms of where they think the Panel works well (in line with its approved terms of reference): • “The Panel is excellent at scrutinising all the papers and is prepared to question, ask for a deep dive, and support Page 48 of 72
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where necessary.” • “Internal Audit and scrutiny items are effective but need to be expanded on even if this means expanding the remit of Audit/Scrutiny.” • "I think the Panel provides a good level of overview and scrutiny which has its own value over and above that provided at departmental level.” • “Effective meetings and positive communication with council executive, officers and Panel members.” Feedback from respondents on the Effectiveness of the Panel in terms of where they think things could be improved (in line with the Panel’s approved terms of reference): • “More training.” • “Nothing comes to mind at this point.” • “Officer's information and responses in dealing with issues raised.” • “There is scope to improve participation in the scrutiny of papers.” • “The Panel should be more transparent and inclusive in its dealings with members and stakeholders.” • “More monitoring and evaluation to measure success in terms of outcomes.” Page 49 of 72
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Appendix 2 Self-evaluation of the Audit and Scrutiny Panel: Good practice questions used in the online survey. Panel Purpose and Governance Q1. Is the role and purpose of the Audit and Scrutiny Panel understood and accepted across the council? Q2. Does the Panel provide support to the council in meeting the requirements of good governance? Q3. Are the arrangements to hold the Panel to account for its performance operating satisfactorily? Q4. Are Members of the Panel committed to training and personal development to update and enhance their knowledge, skills, capacity, and capabilities (where appropriate or required) to deliver Best Value and perform their role on the Panel? Functions of the Panel Q5. Has the Panel maintained its remit as set out in the Terms of Reference in the approved Scheme of Administration? Q6. Is an evaluation undertaken to assess whether the Panel is fulfilling its terms of reference and that adequate consideration has been given to all core areas in the terms of reference? Q7. Where coverage of core areas in the terms of reference has been found to be limited, are plans in place to address this? Q8. Has the Audit and Scrutiny Panel considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them? Q9. Is the Panel’s role clear in relation to ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny? Q10. Do the scrutiny structures in the council support Members in reviewing and challenging performance? Membership and Support Q11. Does the Convener of the Panel have appropriate knowledge and skills? Q12. Do Members of the Panel have appropriate knowledge and skills? Q13. Do Members of the Panel receive sufficient support to perform their role on the Panel? Q14. Are arrangements in place to support the Panel with briefings and training? Q15. Does the Panel have good working relations with key people and organisations, including external audit, internal audit, and the chief financial officer? Q16. Is the secretariat and administrative support provided to the Panel adequate? Q17. Does the Panel have access to clear, timely, and sufficiently detailed information that allows them to carry out their governance and scrutiny role? Effectiveness of the Panel Q18. Are meetings effective with a good level of discussion and engagement from all Panel members? Q19. Does the Panel engage with a wide range of leaders and managers, including discussion of audit findings, risks, and action plans with the responsible officers? Q20. Does the Panel make recommendations for the improvement of governance, risk, control, and performance and are these acted on? Q21. Has the Panel obtained feedback on its performance from those interacting with the Panel or relying on its work? Q22. Has the Panel evaluated whether and how it is adding value to the organisation? Q23. Does the Panel have an action plan to improve any areas of weakness? Q24. Does the Panel publish an annual report to account for its performance and explain its work? Q25. Is the Panel assured that its scrutiny of council performance adds value to the scrutiny activity which already takes place at Service Committee level and does not duplicate efforts? Page 50 of 72
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Appendix 3 Self-evaluation of the Audit and Scrutiny Panel: Improvement Plan. Improvement actions Lead Target date Measures of success Outcomes (1) Formally establish a regular face to face learning and development programme for the Audit and Scrutiny Panel to ensure members of the Panel have the appropriate skills and knowledge and (where required) access to relevant training and resources to effectively undertake their role. 1.1 Develop and deliver a training programme that includes all relevant aspects of Audit and Risk, and covers the role of Audit in line with the key principles set out in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and the supporting Audit Committees Practical Guidance for Local Authorities (2018) document. Chief Officer (Audit and Risk) By the end of 2023/24. All members of the Audit and Scrutiny Panel attend the annual session. Members of the Audit and Scrutiny Panel are informed and able to fulfil their roles and responsibilities in line with the terms of reference as set out in the Scheme of Administration. The purpose of the Audit and Scrutiny Panel is clear as well as the role of members and the expectations of them. All members of the Audit and Scrutiny Panel have a good and consistent level of awareness and understanding of the purpose of the Audit and Scrutiny Panel, its role in relation to the council’s governance arrangements - including the approach and assessment and prioritisation process for scrutiny led by Panel members - and there is an appreciation of the role they have to play in scrutinising all information presented to the Panel. Areas for improvement arising from the self-evaluation exercise will be addressed, in particular the following: Q12. 73% of respondents considered that members of the Panel either Partially or did Not have appropriate knowledge and skills, or they Didn’t Know if this was the case. Q8. 73% of respondents considered that the Audit and Scrutiny Panel had Not considered the wider areas identified in CIPFAs Position Statement: Audit Committees in Local Authorities (2018) and whether it would be appropriate for the Panel to undertake them, or they Didn’t Know if this was the case. Q14. 73% of respondents considered that either Partially there were (or there were Not) arrangements in place to support the Panel with briefings and training, or they Didn’t Know if this was the case. 1.2 Develop and deliver a training programme that includes all relevant aspects of Scrutiny and covers (a) the role of Scrutiny in terms of ensuring the council can demonstrate Best Value through the existence of robust arrangements for performance reporting and scrutiny, and (b) the approach to scrutiny led by members of the Panel and the supporting assessment and prioritisation process. Chief Officer (Business and Digital) By the end of 2023/24. All members of the Audit and Scrutiny Panel attend the annual session. 1.3 As part of the programme for the sessions at 1.1 and 1.2 above, further discussions to be held with members of the Audit and Scrutiny Panel to identify potential areas for briefings and further training requirements. Chief Officer (Audit and Risk) / Chief Officer (Business and Digital) By the end of 2023/24. All members of the Audit and Scrutiny Panel attend the annual sessions for (i) Audit and Risk and (ii) Scrutiny to participate in the discussions. 1.4 Develop an online e-learning module for LearnNL to provide a means to raise awareness of the work of the Audit and Scrutiny Panel for new members prior to undergoing the face-to-face training on an annual basis. This would also serve as a refresher and information resource Chief Officer (Audit and Risk) / Chief Officer (Business and Digital) / Leader and Talent Development Manager Module developed by the end of 2023/24. Completed annually thereafter from 2024/25 onwards. All members of the Audit and Scrutiny Panel complete the e- learning module on LearnNL on an annual basis. Page 51 of 72
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Improvement actions Lead Target date Measures of success Outcomes which members of the Panel would be able to dip in and out of as required. (2) Ensure the Audit and Scrutiny Panel continues to effectively discharge its duties and can demonstrate that it adds value to the organisation. 2.1 Produce an annual report that summarises all Audit and Risk elements considered by the Audit and Scrutiny Panel during the year and highlights the impact of the work of the Panel. Chief Officer (Audit and Risk) Annual report for 2023/24 to be submitted in cycle 4 of 2024. Annual report to committee. Annual reports will raise awareness of the work of Audit and Scrutiny Panel across the organisation. Areas for improvement arising from the self-evaluation exercise will be addressed, in particular the following: Q22. 82% of respondents considered that the Panel had either Partially or had Not evaluated whether and how it is adding value to the organisation, or they Didn’t Know if this was the case. Q21. 73% of respondents considered that the Panel had either Partially or had Not obtained feedback on its performance from those interacting with the Panel or relying on its work, or they Didn’t Know if this was the case. Q1. 54% of respondents considered that the role and purpose of the Audit and Scrutiny Panel was either Partially or Not understood and accepted across the council. 2.2 Produce an annual report that summarises all Scrutiny elements considered by the Audit and Scrutiny Panel during the year and highlights the impact of the work of the Panel. Chief Officer (Business and Digital) Annual report for 2023/24 to be submitted in cycle 2 of 2024. Annual report to committee. 2.3 Continue to evaluate the effectiveness of the Panel in discharging its duties - initially through an annual check in and self-evaluation in line with the principles set out in CIPFAs Position Statement: Audit Committees in Local Authorities (2018), the supporting Audit Committees Practical Guidance for Local Authorities (2018) document, and the Best Value Guidance (2020). The frequency of follow up self- evaluations will be determined by the extent of improvements required following the 2024 self-evaluation exercise. Chief Officer (Legal and Democratic) September 2024. All members of the Audit and Scrutiny Panel engage in the evaluation process. Outcome report and improvement plan from self-evaluation concluded and submitted to the Panel for approval and implementation. An ongoing evaluation will ensure the Audit and Scrutiny Panel remains effective in providing “independent assurance to the council and those charged with governance on the adequacy of the council’s risk management framework and internal control environment”. Areas for improvement arising from the self-evaluation exercise will be addressed, in particular the following: Q3. 54% of respondents considered that Partially there were arrangements in place to hold the Panel to account for its performance operating satisfactorily, or they Didn’t Know if this was the case. 2.4 Continue to seek to improve the effectiveness of the Panel by asking Council to amend current governance Chief Officer (Audit and Risk) / Chief By the end of 2023/24. Members attending Panel meetings have appropriate training, Page 52 of 72
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Improvement actions Lead Target date Measures of success Outcomes arrangements and remove the scope for substitute members to attend Audit and Scrutiny Panel meetings given the importance of Panel members having appropriate training, knowledge, and understanding and recognising the role that consistency in involvement has in terms of ensuring ongoing Panel effectiveness. Officer (Legal and Democratic) knowledge, and understanding of the work of the Panel and this is enhanced over time through ongoing and consistent involvement in the Panel’s business. Page 53 of 72
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North Lanarkshire Council Report Council Does this report require to be approved? ☐ Yes ☒ No Ref Date 21/12/23 Standards Commission Proceedings – Councillor Kenneth Duffy From A Aitken, Chief Officer (Legal and Democratic) E-mail aitkena@northlan.gov.uk Telephone 07939 280102 1. Background 1.1 Following a complaint made to the Ethical Standards Commissioner, there was submitted a report from the Commissioner for Scotland, regarding alleged contraventions of the Councillors’ Code of Conduct by Councillor Duffy. Executive Summary The purpose of this report is to advise of the outcome of proceedings before the Standards Commission for Scotland in relation to a complaint that Councillor Duffy had been guilty of a breach of the Councillors’ Code of Conduct. Recommendations It is recommended that Council consider the written findings of the proceedings before the Standards Commission and note the outcome of the Hearing. The Plan for North Lanarkshire Priority All priorities Ambition statement All ambition statements Programme of Work All Programmes of Work Item 7 Page 55 of 72
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2. Report 2.1 A Hearing was held on 29 September 2023 by the Standards Commission for Scotland in relation to a complaint against Councillor Duffy. The Ethical Standards Commissioner had investigated the complaint and concluded that Councillor Duffy had breached paragraph 3.10 of the Councillors' Code of Conduct. The Hearing decided that there had been such a breach. 2.2 The decision of the Hearing was to censure Councillor Duffy in terms of section 19(1)(a) of the Ethical Standards in Public Life Etc. (Scotland) Act 2000. 2.3 Section 18 of the Act requires that the Standards Commission, following a hearing, must provide a copy of its findings to the Council and that the Council must consider those findings within three months of receiving them, or within such longer period as the Commission may specify. Further, the duty imposed on the Council to consider the findings is to be discharged only by the Council itself and not by a Committee, Sub- Committee or officer. This report and the attached decision from the Standards Commission are submitted to the Council in accordance with the requirements of that Act. 3. Measures of success 3.1 All Elected Members were provided with information and advice from the Monitoring Officer as part of the new Members' Induction Programme 2022 on their obligations and duties to adhere to the Councillors' Code of Conduct. Adhering to the advice and information provided and, where any lack of clarity exists, seeking further advice from the Monitoring Officer, would mitigate against any actions required to be taken by the Standards Commission for Scotland due to a breach, or perceived breach, of the Code of Conduct. 4. Supporting documentation Appendix 1 - Decision of the Hearing Panel of the Standards Commission for Scotland held on 29 September 2023. Archie Aitken Chief Officer (Legal and Democratic) Page 56 of 72
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5. Impacts 5.1 Public Sector Equality Duty and Fairer Scotland Duty Does the report contain information that has an impact as a result of the Public Sector Equality Duty and/or Fairer Scotland Duty? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? If Yes, has an assessment been carried out and published on the council’s website? https://www.northlanarkshire.gov.uk/your-community/equalities/equality-and-fairer- scotland-duty-impact-assessments Yes ☐ No ☐ 5.2 Financial impact Does the report contain any financial impacts? Yes ☐ No ☒ If Yes, have all relevant financial impacts been discussed and agreed with Finance? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.3 HR policy impact Does the report contain any HR policy or procedure impacts? Yes ☐ No ☒ If Yes, have all relevant HR impacts been discussed and agreed with People Resources? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.4 Legal impact Does the report contain any legal impacts (such as general legal matters, statutory considerations (including employment law considerations), or new legislation)? Yes ☐ No ☒ If Yes, have all relevant legal impacts been discussed and agreed with Legal and Democratic? Yes ☐ No ☐ If Yes, please provide a brief summary of the impact? 5.5 Data protection impact Does the report / project / practice contain or involve the processing of personal data? Yes ☐ No ☒ If Yes, is the processing of this personal data likely to result in a high risk to the data subject? Yes ☐ No ☐ If Yes, has a Data Protection Impact Assessment (DPIA) been carried out and e- mailed to dataprotection@northlan.gov.uk Yes ☐ No ☐ 5.6 Technology / Digital impact Does the report contain information that has an impact on either technology, digital transformation, service redesign / business change processes, data management, or connectivity / broadband / Wi-Fi? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? Page 57 of 72
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Where the impact identifies a requirement for significant technology change, has an assessment been carried out (or is scheduled to be carried out) by the Enterprise Architecture Governance Group (EAGG)? Yes ☐ No ☐ 5.7 Environmental / Carbon impact Does the report / project / practice contain information that has an impact on any environmental or carbon matters? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.8 Communications impact Does the report contain any information that has an impact on the council’s communications activities? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact? 5.9 Risk impact Is there a risk impact? Yes ☐ No ☒ If Yes, please provide a brief summary of the key risks and potential impacts, highlighting where the risk(s) are assessed and recorded (e.g. Corporate or Service or Project Risk Registers), and how they are managed? 5.10 Armed Forces Covenant Duty Does the report require to take due regard of the Armed Forces Covenant Duty (i.e. does it relate to healthcare, housing, or education services for in-Service or ex- Service personnel, or their families, or widow(er)s)? Yes ☐ No ☒ If Yes, please provide a brief summary of the provision which has been made to ensure there has been appropriate consideration of the particular needs of the Armed Forces community to make sure that they do not face disadvantage compared to other citizens in the provision of public services. 5.11 Children’s rights and wellbeing impact Does the report contain any information regarding any council activity, service delivery, policy, or plan that has an impact on children and young people up to the age of 18, or on a specific group of these? Yes ☐ No ☒ If Yes, please provide a brief summary of the impact and the provision that has been made to ensure there has been appropriate consideration of the relevant Articles from the United Nations Convention on the Rights of the Child (UNCRC). If Yes, has a Children’s Rights and Wellbeing Impact Assessment (CRWIA) been carried out? Yes ☐ No ☐ Page 58 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 1 of 12 Decision of the Hearing Panel of the Standards Commission for Scotland following the Hearing held at the Sir John Wilson Town Hall, Airdrie, on Friday 29 September 2023. Panel Members: Suzanne Vestri, Chair of the Hearing Panel Ashleigh Dunn Helen Donaldson The Hearing arose in respect of a Report referred by Ian Bruce, the Ethical Standards Commissioner (the ESC), further to complaint reference LA/NL/3705, concerning an alleged contravention of the Councillors’ Code of Conduct dated December 2021 (the Code) by Councillor Kenneth Duffy (the Respondent). The Respondent represented himself. The ESC was represented by Sarah Pollock, the ESC’s Hearings Officer. Referral Following an investigation into a complaint received on 2 February 2022 about the conduct of the Respondent, the ESC referred a report to the Standards Commission on 5 July 2023, in accordance with the Ethical Standards in Public Life etc. (Scotland) Act 2000 (the 2000 Act). The ESC advised that he had considered, on the face of it, that the Respondent had failed to comply with paragraphs 3.10, 7.1, 7.4 and 7.5 of the Code, the relevant parts of these being as follows: Respect and courtesy Paragraph 3.10 I will follow the Protocol for Relations between Councillors and Employees at Annex A and note that a breach of the Protocol will be considered a breach of this Code. I will also comply with any internal protocol the Council has on councillor / employee relations. Annex A - Protocol for Relations between Councillors and Employees 2. Councillors and employees should work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position or influence. 24. Councillors and employees both have a responsibility to project a positive image of the Council and should avoid making any public comments that could bring it into disrepute. Taking decisions on quasi-judicial or regulatory applications Paragraph 7.1 I need to be especially vigilant when I am making a decision on a quasi-judicial or regulatory application. For these applications, I need to ensure there is a proper and fair hearing of the application and I must avoid any impression of bias in the whole decision-making process. Paragraph 7.4 In dealing with these applications, I WILL: a. throughout my involvement with the entire application process act fairly and be seen to act fairly. Paragraph 7.5 In dealing with such applications, I WILL NOT: a. pre-judge or demonstrate bias or be seen to pre-judge or demonstrate bias; b. indicate or imply support for or opposition to an application nor indicate my voting intention prior to the appropriate meeting where the application will be considered; c. in advance of the decision-making meeting, attempt to influence employees to adopt a particular position as that would imply that I am prejudiced in my decision-making; d. lobby other councillors who may be dealing with the application; e. express any view on the application before the appropriate meeting where the application will be considered. If I do so I will not participate in any aspect of the decision-making nor vote on the application; Page 59 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 2 of 12 f. formulate my conclusions on an application until all available information is to hand and has been duly considered by me at the meeting where the application will be considered; g. express any indicative or provisional views in the course of my involvement in any aspect of the application; or h. otherwise act improperly or do anything which could reasonably create a perception that I have acted improperly. The ESC advised that he had concluded, however, that a restriction on the Respondent’s right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR), that a finding of breach and the subsequent imposition of a sanction would entail, could not be justified. The Standards Commission nevertheless decided it was both proportionate and in the public interest to hold a Hearing. This was because the Standards Commission noted that the ESC had concluded that, on the face of it, there was evidence of a breach of the Code and considered that the alleged breach was not of an insignificant or of a technical, minor nature. EVIDENCE PRESENTED AT THE HEARING Joint Statement of Facts The Panel noted that a Joint Statement of Facts had been agreed between the ESC and the Respondent, in which it was agreed that the Respondent was acting in his capacity as a councillor at the time of the conduct in question, and, as such, the Code applied. It was further noted, in the Joint Statement of Facts, that there was no dispute that, on 17 January 2022, the Respondent had a telephone conversation with a journalist relating to a planning application in respect of rail freight development at the site of the former Ravenscraig steelworks. Information relating to the application had appeared in a subsequent media article published later that day, entitled ‘Councillor reveals controversial Ravenscraig rail freight terminal to be rejected by planners’. The Joint Statement of Facts recorded that the Respondent had not had sight of the article before it was published. It further recorded that, following consultation with council officers, the Respondent did not attend the meetings of the Council’s Planning Hearings Committee or full Council, on 15 December 2022, at which the decision on the application was made. Submissions made by the ESC’s Representative The ESC’s representative advised that there was significant opposition to the planning application, from the local community, politicians and businesses, with over 600 objections being submitted on various grounds, including that it was contrary to the Local Development Plan. The ESC’s representative further advised that as the application concerned a significant development, it was classed as a ‘National Development’, meaning it required to be considered by the Council’s Planning Hearings Committee before a final decision was taken by full Council. The ESC’s representative noted that the Respondent was quoted in the media article of 17 January 2022 as stating that he was “pleased” to impart the news that a vote on the application would be taken in February. The Respondent was further quoted as stating that the local community action group, “will be no doubt heartened that the recommendation from planners will be for refusal but that in line with the rules governing elected members I will not be expressing my opinion on this development until I have had the opportunity to vote”. The ESC’s representative advised that the ESC had firstly considered whether the Respondent had disclosed confidential information to the journalist. The ESC’s representative drew the Panel’s attention to an email sent by the Respondent to the Council’s Executive Director of Enterprise and Communities, on 12 January 2022, in which he asked whether the application would be determined by full Council or a planning Page 60 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 3 of 12 committee. In a response email that day, the Executive Director of Enterprise and Communities advised that the application would be considered by the Planning Hearings Committee before being determined by full Council. The Executive Director of Enterprise and Communities noted that officers were doing everything they could “to have everything in place for the meetings to be held in February”. The ESC’s representative noted that this response made no reference to what any recommendation from officers might be, in respect of the application or its status. The ESC’s representative further noted that while the response indicated that the matter could be referred for committee consideration as early as February, no firm commitment was provided to that effect. The ESC’s representative advised that after the media article was published, the Council conducted an internal inquiry to determine whether council officers had inappropriately disclosed confidential information about the status of the application, or what their recommendation would be, to the Respondent that he thereafter passed to the journalist. The ESC’s representative noted that no evidence had been found to suggest any such information had been disclosed by officers to the Respondent or the media. The ESC’s representative advised that the ESC had concluded, therefore, that the Respondent had not breached the confidentiality provisions in the Code. The ESC’s representative advised, however, that the ESC had proceeded to consider whether the Respondent had disclosed inaccurate information about the application to the journalist and, if so, whether this had the potential to influence the decision that was to be made in respect of it. The ESC’s representative contended that it was evident that the information in the article’s quote, attributed directly to the Respondent, to the effect that the recommendation from planners would be to refuse, was incorrect at the time of publication. The ESC’s representative drew the Panel’s attention to various contemporaneous emails from council officers indicating that, as further information was awaited from the applicant, the planning service was still considering the matter and had not yet reached a decision on whether to recommend the application be approved. The emails further made it clear that no decisions had been made in respect of the dates that the application was to be put to either the Planning Hearings Committee or full Council. The ESC’s representative submitted, therefore, that at the time of the article’s publication there was: • no evidence that officers had disclosed information about what their recommendation would be to the Respondent; and • no factual basis for the statement in the quote to the effect that officers would recommend refusal. The ESC’s representative advised, therefore, that the ESC had concluded that the statement the Respondent had given to that effect was simply his opinion in respect of what he thought was likely to happen. The ESC’s representative noted that while the Respondent could not be held responsible for how the journalist framed any quote he had provided, there was no evidence or suggestion he had asked for the published one to be amended or that he had raised concerns that it did not reflect accurately what he had said. The ESC’s representative then addressed whether the Respondent’s conduct, in suggesting what the recommendation on the application would be, could be considered reasonably as an attempt to influence either officers or other councillors in their decision-making. The ESC’s representative noted that the Respondent was quoted in the article as stating that he would not be expressing any view on the merits of the application until he had the opportunity to vote on it. The ESC’s representative advised, however, that this statement was made after the one to the effect that a local community action group would be ‘heartened’ to learn that officers would be recommending refusal. The ESC’s representative noted that the application was of a high-profile nature, which had generated significant opposition in the local community. The ESC’s representative submitted that the Respondent’s actions, in providing incorrect information about Page 61 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 4 of 12 the status of the application and recommendation to be made by officers, could be interpreted as an attempt to pressure officers into recommending refusal and to prompt them to take action to set dates for consideration of the application by the Planning Hearings Committee and full Council. The ESC’s representative suggested that the Respondent could have done so deliberately, in an attempt to curry favour with the local community, for political gain. The ESC’s representative contended, in support of this supposition, that the failure by the Respondent to correct the quote in the article suggested that he was content to let it stand. The ESC’s representative noted that the Respondent’s position was that while he did not recall the details of his conversation with the journalist, he accepted the quote attributed to him about the officers’ recommendation was incorrect. The ESC’s representative indicated that the Respondent’s position was that he had based his understanding on what the recommendation was likely to be on what he had been told about the application by local businesses. The Respondent’s position was that he had intended to reflect his opinion on that and had not been making any attempt to influence the recommendation or subsequent decision-making. The ESC’s representative noted, however, that the information in the quote was presented as fact, rather than opinion, and suggested that it would have been understood by anyone reading the article as such. Turning to the application of the Code, the ESC’s representative argued that it would be reasonable for members of the public reading the article to assume that the contents of the Respondent’s quote were accurate and to conclude, therefore, that officers had disclosed confidential information about their recommendation and the timetable for consideration of the application. The ESC’s representative contended that this gave the impression that officers had behaved improperly and could have led to their integrity being questioned. The ESC’s representative noted that Annex A of the Code, being the protocol for relations between elected members and council officers, requires both councillors and employees to work in an atmosphere of mutual trust and respect, with neither party seeking to take unfair advantage of their position or influence. It further requires councillors and employees to project a positive image of the Council and to avoid making any public comments that could bring it into disrepute. The ESC’s representative contended that, by making public comment that could bring officers and the Council into disrepute, the Respondent had, on the face of it, failed to comply with the protocol, in breach of paragraph 3.10 of the Code. The ESC’s representative noted that paragraph 7.1 of the Code requires councillors to ensure there is a proper and fair hearing of a planning application and to avoid any impression of bias in the whole decision-making process. Paragraphs 7.4 and 7.5 require councillors to act fairly and without bias and to ensure they are seen to be acting fairly and without bias throughout their involvement with the entire application process. Paragraph 7.5 further states that, in advance of any decision-making meeting, councillors must not attempt to influence officers to adopt a particular position as that would imply that the councillor is prejudiced in their decision-making. The ESC’s representative advised that, having taken advice from officers, the Respondent did not take part in the decision-making on the application. The ESC’s representative contended, nonetheless, that his actions, in providing incorrect information about the recommendation and status of the application, had the potential to undermine public confidence in the Council’s process. The ESC’s representative further contended that the fact the Respondent did not take part in the decision-making, despite having been due to do so, was a tacit admission that his conduct could have given the impression of unfairness or bias and was incompatible with the Code. While the ESC’s representative accepted that it was not clear that the Respondent had been intending or seeking to influence officers or fellow elected members, she contended that the quote attributed to him in the article could be perceived as an attempt to do so. Such comments could also potentially undermine the process, leaving it open to allegations of unfairness. The ESC’s representative reiterated that the application had attracted significant interest from the local community for more than two years and strong opposition from local action groups, businesses, and politicians from all sides. The ESC’s representative contended that, given this, it would not be unreasonable for members of the public to conclude that the Respondent may Page 62 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 5 of 12 have chosen to advance selected information, that accorded with the majority view, in order to secure political gain. The ESC’s representative argued, therefore, that the Respondent had either knowingly or inadvertently failed to avoid the perception that he was biased and was attempting to influence officers and other councillors to adopt a particular position in respect of the application. As such, the ESC’s representative contended that, on the face of it, the Respondent had also contravened paragraphs 7.1, 7.4 and 7.5 of the Code. The ESC’s representative nonetheless noted the Respondent had a right to freedom of expression under Article 10 of the European Convention on Human Rights (ECHR). The ESC’s representative noted that the Respondent had spoken to the journalist to discuss the planning application in his capacity as an elected member. The ESC’s representative argued, therefore that the conversation took place in a political context and that it concerned a matter of public concern. As such, he was entitled to the enhanced protection of his Article 10 rights afforded to politicians when discussing matters of public interest or concern. The ESC’s representative contended that a restriction on the Respondent’s Article 10 rights would be justified if it was determined that he was responsible for disclosing confidential information. There was, however, no evidence whatsoever that confidential information had been passed by any council officer to the Respondent. Indeed, at the time the Respondent spoke to the journalist, more information was still required from the applicant who had made the planning application and no formal dates had been set for the Planning Hearings Committee and the subsequent full Council meeting which would make the ultimate decision on the application. The ESC’s representative noted, however, that the ESC had found that the Respondent had provided misleading comments on the application and that he had potentially done so to improve his standing with the local community and to influence the outcome of the application. The ESC’s representative noted that politicians often make speculative comments to the media, based on their opinions, and reiterated that the Respondent did not take part in the decision-making on the application. The ESC’s representative noted that paragraph 7.5 of the Code distinguishes between providing commentary on an application in advance, and participating in the decision-making process, in that it states that councillors should not express any view on the application before the appropriate meeting where the application will be considered and that if they did so, then they would not be able to participate in the decision-making or voting on the application. The ESC’s representative advised that, in the circumstances, the ESC was not persuaded that a restriction on the Respondent’s enhanced right to freedom of expression, that a finding of a breach of the Code and imposition of a sanction would entail, was justified. In response to a question from the Panel about who could have been influenced by the Respondent’s conduct and why, the ESC’s representative noted that, at the time of his conversation with the journalist, the Council was still awaiting information from the applicant and, further, that the application was not considered by the planning committee and full Council until December 2022, being some 11 months later. The ESC’s representative accepted, therefore, that a significant period of time had elapsed between the publication of the article and the conclusion of the application process, meaning its contents could have had less impact. The ESC’s representative suggested, however, that it was equally arguable that the fact that incorrect information to the effect that officers were recommending the application be refused was in the public domain for a significant amount of time could have led members of the public to understand it was to be rejected, which in turn could have had the potential to influence officers and other elected members. The ESC’s representative acknowledged, in response to another question from the Panel, that the Respondent’s decision not to take part in the decision-making on the application was not necessarily a tacit admission that his conduct was incompatible with the Code, given he may have been following advice from officers. The ESC’s representative noted, nevertheless, that it was apparent from the article that the Page 63 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 6 of 12 Respondent had intended to take part in the decision-making and the fact that he did not then do so could at least be perceived, therefore, as an admission that his participation could have been problematic. In response to questions from the Panel about the application of Article 10, the ESC’s representative argued that while the Respondent’s comments concerned a planning application, being a quasi-judicial matter, they were not made in the context of a quasi-judicial or regulatory forum, such as a planning meeting. The ESC’s representative contended that the Respondent had simply been providing an opinion, albeit she accepted this had been presented in the article as fact. Submissions made by the Respondent The Respondent advised that he had initiated the email exchange with officers that led to the one to him from the Council’s Executive Director of Enterprise and Communities on 12 January 2022 (being five days before he spoke to the journalist), in order to establish the process for consideration of the application. The Respondent advised that the journalist had contacted him on 17 January 2022, by telephone, to seek an update on the progress of the planning application, having been told previously by the Respondent that it was likely he would be able to provide an update in the new year. The Respondent confirmed that he had not been given any information by officers, as to what their recommendation would be in respect of the planning application, before he spoke to the journalist. The Respondent advised that while he could not recall exactly what he had said to the journalist during their discussion, his intention had been to convey that he believed the recommendation would be to reject the application. The Respondent accepted that he was aware, during the telephone call, that he could be quoted directly in any resulting article albeit he considered with the benefit of hindsight, that the content of the quote did not reflect what he had intended to convey. The Respondent acknowledged, in this regard, that the article reported the information he had provided as fact, rather than as opinion, as he had intended. The Respondent noted, nonetheless, that while the information contained in the quote attributed to him, about the officers’ recommendation and status of the application, had been presented as fact it was, in any event, incorrect. The Respondent entirely rejected any suggestion that he had provided inaccurate information deliberately in order to influence either the recommendation or the decision itself, albeit he accepted the way the article was worded could give rise to a perception that he had done so. The Respondent advised that his opinion on the expected recommendation was based on his discussions with contacts in the building industry about the likelihood of the application being approved. The Respondent noted that he was not afforded an opportunity to check or correct the article before it was published. The Respondent advised that he had been unhappy with the content as it did not reflect the point he had been trying to get across, namely that he believed the application would be rejected. The Respondent confirmed that he accepted that it would be reasonable for anyone reading the article to infer incorrectly that officers had disclosed confidential information to him and, as such, he had apologised to the Council’s Chief Executive at the time. The Respondent advised that, in order to avoid any similar situation from arising, he now ensures that any and all contact he has with the press is in writing. In response to questions from the Panel, the Respondent advised that his motivation in speaking to the press was to provide the community with an update on the progress of the application. The Respondent confirmed that he had not attempted to contact the journalist to see if the article could be amended, as doing so had not dawned on him. The Respondent noted, in any event, that even if he had wished to do so, by then the information was already in the public domain and, further, that the placement of any corrections in the media tended to make them easy to overlook. The Respondent noted that the way the quote was worded reflected how he might write, rather than speak. While the Respondent accepted that the journalist would not have made up the information outlined in the article, he noted that it was incorrect, in that no recommendation had been made at the time and no date Page 64 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 7 of 12 had been arranged for the committee and full Council consideration of the application. The Respondent contended, therefore, that he could not have provided a definitive timeframe and, instead, could only have speculated on what this and the recommendation would be. The Respondent advised that, as Provost, he would have been expected to chair the full Council meeting on 15 December 2022. The Respondent confirmed that he had not attended the meeting, however, as he was aware that some concerns had been expressed about the article and, having sought advice from officers, was worried about how his participation may be perceived. The Respondent noted that had he been seeking political gain, he would have attended the meeting and taken part in the discussion and decision-making, in accordance with what his constituents would have wanted him to do. DECISION The Hearing Panel considered the submissions made both in writing and orally at the Hearing. It concluded that: 1. The Councillors’ Code of Conduct applied to the Respondent, Councillor Duffy. 2. The Respondent had breached paragraph 3.10 of the Code Reasons for Decision Stage 1: Whether the Respondent’s conduct amounted, on the face of it, to a breach of the Code In reaching its decision as to whether there had been a breach of the Code, the Panel took the following three-stage approach, as outlined in the Standards Commission’s Advice Note on the Application of Article 10 of the ECHR. • First, it would consider whether the facts found led it to conclude, on the balance of probabilities, that the Respondent had failed to comply with the Code. • Second, if so, it would then consider whether such a finding in itself was, on the face of it, a breach of the Respondent’s right to freedom of expression under Article 10. • Third, if so, the Hearing Panel would proceed to consider whether the restriction involved by the finding was justified by Article 10(2), which allows restrictions that are necessary in a democratic society. The Panel noted that the neither the Council, during its internal inquiry, nor the ESC, had found any evidence to suggest that officers had advised the Respondent, before his discussion with the journalist on 17 January 2022, that they intended to recommend the planning application be rejected. The Panel further noted that the Respondent denied categorically having received any such information. In the circumstances, the Panel was not satisfied, on the balance of probabilities, that the Respondent had disclosed, to the journalist, information about the application that had been given to him in confidence. The Panel noted, in any event, that this conclusion was supported by the fact that the information contained in the quote in the article of 17 January 2022, attributed to the Respondent, was incorrect. The Panel was satisfied, in this regard, that at the time of the Respondent’s discussion with the journalist, further information was awaited from the applicant, meaning that officers had not made a recommendation on the application and no timetable for its consideration had been finalised. Having determined that the Respondent did not disclose confidential information to the journalist, the Panel proceeded to consider whether the information about the officer’s recommendation or status of the application had been presented, by the Respondent, to the journalist as fact and, if so, whether this had been done deliberately in an attempt to influence either officers or other elected members. The Panel noted that information in the article, that purported to quote from the Respondent, regarding the potential timing of when a decision on the application would be made, appeared to reflect the content of Page 65 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 8 of 12 the emails the Respondent had exchanged with officers the week before. The Panel considered, therefore, that this indicated it was likely that information about the proposed timetable for consideration of the application had been presented to the journalist as fact. The Panel noted that the Respondent’s position was that while he could not recall exactly what had been said during his conversation with the journalist, he was confident that he would not have presented information about the recommendation from officers as fact, given he had not been told what this would be. The Panel noted, however, that the article purported to quote from him directly. The Panel considered the Respondent could have contacted the journalist to ask for the article to be amended if he was of the view that it did not truly reflect their discussion. The Panel nevertheless accepted the Respondent’s position that doing so may not have made any difference, given the information in the article was now already in the public domain. The Panel was of the view, nevertheless, that it was unlikely the journalist would have made up information about the officers’ recommendation and therefore was satisfied, on balance, that the Respondent must have at least given an indication of what he believed the recommendation would be. In reaching this conclusion, the Panel again noted that other aspects of the quote attributed to him in the article appeared correct. The Panel noted, nonetheless, that there was no evidence that officers had told the Respondent what their recommendation was, or was likely, to be. In the circumstances, the Panel accepted that any information the Respondent gave about the likely recommendation may well have been based on his knowledge of the application and the reasons behind the opposition to it, as well as his understanding of its compatibility or otherwise with the Local Development Plan. The Panel considered, however, that members of the public, on reading the article, may have believed that council officers had acted inappropriately in providing information about their recommendation to the Respondent. This was because that information would have been confidential, and also because further details were still awaited from the applicant. The Panel considered that the suggestion that council officers had revealed prematurely their recommendation on a potentially controversial and high-profile matter had the potential to bring the Council into disrepute. As such, the Panel was satisfied that, on the face of it, the Respondent had breached the Protocol for Relations between Councillors and Employees and, in turn, paragraph 3.10 of the Code. The Panel observed that, at the time of the article, it would have been reasonable for anyone reading it to expect that the Respondent would participate in the decision-making on the application, given it was a decision to be made by all North Lanarkshire councillors. The Panel further observed that the Respondent was quoted as stating that he would not be expressing a view on the application until it was before him for decision-making. The Panel considered, however, that it was reasonable for anyone reading the article to infer that the Respondent was against the application. This was because the quote attributed to the Respondent referred to him being ‘pleased’ to be able to make available the purported news about when the application would be considered. The quote further suggested that a local community action group would likely be ‘heartened’ that the recommendation would be to reject the application in the same sentence as the reference to his intention to vote on the matter. The Panel nevertheless agreed with the ESC’s representative that paragraph 7.5 of the Code distinguishes between providing commentary on a planning application in advance, and participating in the decision- making process. The Panel noted that the Code states that councillors should not express any view on an application before the appropriate meeting where it will be considered and that if they did so, then they would not be able to participate in the decision-making or voting on the application. Page 66 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 9 of 12 While the Panel accepted that the Respondent had indicated he intended to take part in the decision-making, it noted that, ultimately, he did not do so. The Panel was not satisfied, therefore, that the Respondent had failed to act fairly or been seen to act fairly, or that he had pre-judged or demonstrated bias before considering the application, in breach of paragraphs 7.4 or 7.5 of the Code. The Panel noted that paragraph 7.1 of the Code requires councillors to be “vigilant” when making decisions on planning applications. It further requires them to ensure a proper and fair hearing of the application and notes that they must avoid any impression of bias in the whole decision-making process. The Panel again noted that the Respondent had not taken part in the decision-making on the application. The Panel further noted that it had been unable to determine, categorically, that he had presented information about the officers’ recommendation to the journalist as fact. The Panel considered, in any event, that disclosing information (factual or otherwise) about what the recommendation would be, or was likely to be, would not in itself give the impression that the Council was biased against the application. The Panel accepted that, if they had seen the article, the applicant may have questioned why a recommendation had been made before all information had been submitted and considered. The Panel was of the view, however, any such impression could have been dispelled relatively easily, had officers been challenged, given that it was incorrect. The Panel further agreed that there was no evidence to suggest that the Respondent’s actions prevented the Council from giving the application a fair and proper hearing. The Panel was unable to conclude, therefore, that the Respondent had breached paragraph 7.1 of the Code. The Panel noted that, in respect of planning applications, paragraph 7.5 of the Code states that councillors should not attempt to influence officers to adopt a particular position, and should not lobby other councillors who were to be involved in the decision-making. The Panel noted the ESC’s position was that the Respondent had provided misleading comments on the application and that he had potentially done so to improve his standing with the local community and to influence the outcome of the application. The Panel further noted that the ESC considered the fact that incorrect information, to the effect that officers were recommending the application be refused, was in the public domain for a significant amount of time, could have led members of the public to understand it was to be rejected, which in turn could have had the potential to influence officers and other elected members in their decision-making. The Panel was of the view, however, that a breach of the requirement in paragraph 7.5 for councillors to refrain from any “attempt to influence employees to adopt a particular position” or to “lobby other councillors who may be dealing with the application”, would involve some form of deliberate action or intent. The Panel was not satisfied that it had any evidence before it to determine, with any certainty, that the Respondent had deliberately provided the journalist with inaccurate or misleading information. Instead, the Panel found that it was likely the Respondent had simply given an indication of what he believed the recommendation would be. The Panel noted that the ESC accepted, in his consideration of the application of Article 10, that politicians often made speculative comments to the media, based on their opinions and, further, that he accepted that it was not clear whether the Respondent had provided misleading information knowingly or otherwise. While the Panel accepted the ESC’s representative’s point that it would not be unreasonable for members of the public to conclude that the Respondent may have chosen to advance selected information, that accorded with the majority view, in order to secure political gain, it noted this was different from attempting to influence or lobby others involved in the decision-making to adopt the same view. Indeed, the Panel noted that the Respondent could have also secured political advantage if opposition councillors had reached a different view. The Panel was of the view that, in the absence of any evidence of any deliberate intent by the Respondent to mislead or to influence or lobby officers or other elected members, it could not conclude that there had been a breach of paragraph 7.5. Page 67 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 10 of 12 Stage 2: Whether any findings that the Code had been contravened would be a breach of the Respondent’s right to freedom of expression under Article 10 of the ECHR The Panel noted that enhanced protection of freedom of expression under Article 10 of the ECHR can apply to all levels of politics, including at a local government level1. The Panel further noted that the Courts have held that political expression is a broad concept and that there is little distinction between political discussion and discussion of matters of public concern. The Panel accepted that the information that had been disclosed concerned a matter of public concern, being the council’s consideration of a high-profile planning application. The Panel concluded, therefore, that the Respondent benefitted from the enhanced protection of freedom of expression afforded to politicians under Article 10 of the European Convention on Human Rights. Stage 3: Whether any restriction on the Respondent’s right to freedom of expression involved by a finding of a contravention of the Code would be justified by Article 10(2) of the ECHR The Panel noted, nevertheless, that the right to freedom of expression is not absolute. Article 10(2) allows restrictions, such as the imposition of a sanction for a breach of a regulatory code of conduct, to be imposed to enable local government to function effectively and to ensure the council or office of a councillor is not brought into disrepute. This is provided that any restriction is for relevant and sufficient reasons and is proportionate to the legitimate aim being pursued. The Panel noted that it was required to undertake a balancing exercise, weighing the right to freedom of expression enjoyed by the Respondent (and particularly the enhanced right to which he was entitled in this case), against any restriction imposed by the application of the Code and the imposition of any sanction. The Panel noted, in this case, that it had not found any evidence that the Respondent had provided misleading information to the journalist deliberately. The Panel considered, however, that the Respondent’s actions, in failing to make it clear that he was only expressing an opinion about what the recommendation from officers on the application might be, resulted in an article being published that left a clear impression that officers had acted improperly. The Panel was of the view that this had the potential to erode the important relationship between councillors and officers and to bring the Council into disrepute. In this case, the Panel was satisfied that a restriction on the Respondent’s right to freedom of expression that that a finding of a breach of the Code and imposition of a sanction would entail was necessary, sufficient and proportionate to: • protect the bond between officers and elected members; and • maintain the public confidence in council officers, the council itself and the council’s decision-making processes. As such, the Hearing Panel determined that the imposition of a restriction in the circumstances was relevant, sufficient, and proportionate. The Hearing Panel concluded, therefore, that it was satisfied that a finding of breach, and subsequent application of a sanction, would not contravene Article 10. Evidence in Mitigation The Respondent advised that he always tried to display the highest possible standards of conduct as he recognised the importance of doing so, particularly in respect of encouraging involvement in political and community matters from under-represented groups in society. The Respondent noted that he had never previously been the subject of any complaint or referral to the Standards Commission and that he had co- operated fully with the investigative and adjudicatory process. 1 Jerusalem v Austria (2003) 37 EHRR 25 Page 68 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 11 of 12 The Respondent advised that he always sought to work effectively with officers and proactively in the best interest of his constituents. The Respondent drew the Panel’s attention to a character reference supplied by a local community action group. The Respondent reiterated that he had not intended to cause any difficulties for officers and again apologised for having done so. SANCTION The decision of the Hearing Panel was to censure the Respondent, Councillor Duffy. The sanction was made under the terms of section 19(1)(a) of the Ethical Standards in Public Life etc. (Scotland) Act 2000. Reasons for Sanction In determining the appropriate sanction, the Panel considered: • first, whether the interference (i.e. the proposed sanction) was the minimum necessary, or whether less restrictive means could be employed; and then • secondly, whether the benefit of that least necessary measure outweighs its adverse impact on the Respondent’s right to freedom of expression. In making its decision in sanction, the Panel had regard to the Standards Commission’s Policy on the Application of Sanctions. A copy of the policy can be found on the Standards Commission’s website, here: https://www.standardscommissionscotland.org.uk/cases/hearing-rules. The Panel began by assessing the nature and seriousness of the breach of the Code. The Panel noted that the requirement for councillors to comply with the protocol for relations between elected members and council officers is a fundamental part of the Code, as a failure to do so can impede the effective functioning of the Council and, further, can bring it into disrepute. The Panel noted, in this case, that the Respondent’s conduct resulted in an article being published that left a clear impression that officers had acted improperly. The Panel noted that not only did this have the potential to reduce public confidence in the Council, but it also resulted in further work for officers, who were obliged, as a result, to undertake an internal inquiry and to respond to concerns. The Panel proceeded to consider whether there were any aggravating and mitigating factors as set out in the Policy on the Application of Sanctions, beginning with those in mitigation. The Panel noted that mitigating factors are those which may lessen the severity or culpability of the breach. The Panel noted, in mitigation, that the Respondent had co-operated fully with the investigative and Hearing processes. The Panel noted the character reference from the community group to the effect that the Respondent demonstrated an outstanding commitment to public service, by listening to and representing local families, addressing individual casework concerns, and making a positive impact on the community he represents. The Panel further accepted the Respondent’s position that he had not intended to create difficulties for officers and noted that he had apologised for doing so at the time. The Panel then proceeded to consider the aggravating factors; being ones that may increase the severity or culpability of the breach. The Panel considered that the Respondent’s conduct, in making public comment that suggested officers had failed to act in accordance with proper process, had the potential to damage both their reputation and the reputation of the Council itself. Page 69 of 72
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COUNCILLOR KENNETH DUFFY NORTH LANARKSHIRE COUNCIL Page 12 of 12 The Panel nevertheless concluded that the Respondent’s conduct did not warrant a more serious sanction than censure. This was because there was no evidence of serious aggravating factors such as dishonesty or repeated behaviour over a long period of time. The Panel also noted that the Respondent had immediately apologised to Council officers, expressed regret and had never previously been the subject of a referral from the ESC. Further, the Panel had no reason to consider that the outcome of the planning application had been affected by the Respondent’s conduct. Right of Appeal The Respondent has a right of appeal in respect of this decision, as outlined in Section 22 of the Ethical Standards in Public Life etc. (Scotland) Act 2000, as amended. Date: 6 October 2023 Suzanne Vestri Chair of the Hearing Panel Page 70 of 72
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Notice of Question Procedure – Standing Order 51 Council Meeting - Thursday, 21 December 2023 Question Posed by Councillor (1) What is the cost of posting requested Committee papers to members per cycle compared to the projected fuel cost of each of those members to travel to and from the Civic to collect papers? Robinson (2) Is there any reason the Planning Committee should not take place in the Chamber? Carragher (3) Can North Lanarkshire Council expect future policy announcements relating to the business of this Council to be made by the Leader of the Council or the Leader of the Labour Party in Scotland? Carragher Item 13 Page 71 of 72
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