outside body report
Renfrewshire Council · 19 May 2022
Back to Council — 19 May 2022 and its agenda
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Page 1 of 3 To: Council On: 19 May 2022 Report by: Director of Finance and Resources Heading: Nomination and Appointment of Elected Members and Officers to Joint Committees, Boards other Bodies and Positions 1. Summary 1.1 The Council is entitled to representation on various Joint Committees, Boards and other bodies, including the Local Partnerships, and accordingly is invited to nominate or appoint representatives as appropriate. 1.2 The appendix to this report details those bodies to which the Council is entitled to representation and the nature of that representation. It will be noted that in some instances for example, in relation to Joint Committees and Boards, representation is restricted to elected members, whereas in others representation may be by elected members and/or officers. In addition, some allow substitute members where others don’t. 1.3 Additional information in relation to the Council’s Local Partnership arrangements is detailed in section 3 of this report. 1.4 Where an officer has been appointed previously, they remain in this position and there is no appointment required unless detailed in the appendix. 2. Recommendations 2.1 That the Council considers the nomination or appointment of elected members and officers as appropriate to the Joint Committees, Boards and other bodies detailed in the appendix to this report; 2.2 That appointments are not taken up until the Director of Finance & Resources has confirmed that appropriate insurance policies are in place; and 2.3 That the guidance and available training be noted.
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Page 2 of 3 3 Local Partnerships 3.1 The Council has established seven Local Partnerships. Local Partnerships provide the community with the opportunity to have their say on local issues and make a difference to their local area. The Partnerships have agreed terms of reference and standing orders to guide their operation. Membership is split evenly between all local elected members for the area and community representatives. Community representative places are held by the elected chairs of relevant Community Councils, with remaining places filled by representatives of community organisations in the area following agreement by Local Partnership members. 3.2 In line with the established Terms of Reference, a chair requires to be appointed by the Council to each of the Local Partnerships. The Chair must be an elected member representing an area covered within the Local Partnership boundary. 3.3 Each Local Partnership is supported by a Lead Officer, who will generally be a senior officer within the Council. Lead Officer appointments are made by the Chief Executive. 3.4 The next meetings of the Local Partnerships are scheduled to take place in June 2022. A core element of the agenda will be the allocation of Local Partnership grant funding. A briefing for all Chairs and elected members will be provided prior to the meetings taking place. 4 Indemnification of Elected Members and Officers 4.1 The Council’s existing third party/public liability policy of insurance will indemnify both elected members and officers against any legal liability to third parties whilst they are undertaking the statutory functions of the Council as members of Joint Committees or Boards. 4.2 Generally speaking as an elected member’s or officer’s primary duty when acting for an outside body (albeit that he/she was nominated or appointed to that body by the Council) is to act in the best interests of that body, the responsibility for ensuring that appropriate insurances are in place lies with the outside body. The Council’s insurance policy does not cover the actions of elected members and officers in such circumstances and it is therefore essential that the organisation has appropriate insurance in place to indemnify members and officers against any legal liability. 4.3 It is suggested that appointments are not taken up until the Director of Finance & Resources has confirmed that appropriate insurance policies are in place. 4.4 Guidance notes are available in the members’ library on the committee management information system (CMIS) in relation to the duties of a company director and a charity trustee https://renfrewshire.cmis.uk.com/renfrewshire/MembersArea/MembersLibrary.aspx 4.5 In addition, the Councillors’ training and development programme 2022 includes briefings on the roles and responsibilities of directors and on Arms Length External Organisations (ALEOs) for those members who are appointed.
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Page 3 of 3 5 Code of Conduct Issues 5.1 In terms of appointments to outside organisations, the Councillors Code of Conduct provides: Paragraph 3.30: If I am appointed or nominated by the Council as a member of another body or organisation, I will abide by the rules of conduct and will act in the best interests of that body or organisation while acting as a member of it. I will also continue to observe the rules of this Code when carrying out the duties of that body or organisation. Paragraph 3.31: I accept that if I am a director or trustee (or equivalent) of a company or a charity, as a nominee of my Council, I will be responsible for identifying, and taking advice on, any conflicts of interest that may arise between the company or charity and my council. 5.2 The Standards Commission for Scotland has published an Advice Note containing an overview of matters for consideration when participating in ALEOs. A copy of the Advice Note is appended to this report. While there is no legal definition of an ALEO, it is any body which is formally separate from a council but is subject to its control and influence. The advice focuses on councillors’ responsibilities under the ethical standards framework and seeks to assist councillors in recognising and dealing with potential conflicts of interest to minimise risks to governance and accountability arrangements. The advice considers councillors’ and the Council's roles and responsibilities, risks to governance and accountability, registration of interests, identifying potential conflicts of interest and making declarations of interest, confidentiality, training and sources of further information. The Advice Note should therefore be read in conjunction with the Councillors’ Code of Conduct. Implications of this report 1. Financial Implications – none 2. HR and Organisational Development Implications – none 3. Community Plan/Council Plan Implications – none 4. Legal Implications – none 5. Property/Assets Implications – none 6. Information Technology Implications – none
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Page 4 of 3 7. Equality and Human Rights Implications (a) The Recommendations contained within this report have been assessed in relation to their impact on equalities and human rights. No negative impacts on equality groups or potential for infringement of individuals’ human rights have been identified arising from the recommendations contained in the report because for example it is for noting only. If required following implementation, the actual impact of the recommendations and the mitigating actions will be reviewed and monitored, and the results of the assessment will be published on the Council’s website. 8. Health and Safety Implications – none 9. Procurement Implications – none 10. Risk Implications – none 11. 12. 13. Privacy Impact – none CoSLA Implications – none Climate Risk – none List of Background Papers – none Author: Lilian Belshaw, Democratic Services Manager, 0141 618 7112
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Organisation Description Appointments Required Notes Association for Public Service Excellence The Association consults, develops, promotes, advises and shares on best practice and provision of efficient and accountable of public services 1 member and 1 substitute member Association for Public Service Excellence (Scottish Region) The Association consults, develops, promotes, advises and shares on best practice and provision of efficient and accountable of public services 1 member and 1 substitute member Clyde Valley Learning and Development Joint Committee The Joint Committee has been established for the purpose of regulating the delivery of the Project by maintaining a strategic overview and monitoring the learning and development functions of the Members 1 member and 1 substitute member Community Planning Oversight Group To provide oversight to the strategic work of the Community Planning Partnership Executive Group in directing the Council's contribution to the work of Renfrewshire Community Planning Partnership; agrees outcomes and targets; and considers any future changes to partnership working and governance structures 7 members being Leader and Conveners / IJB Chair or Vice Chair and 1 opposition member Cultural Recovery and Renewal Fund Panel To offer swift support to Renfrewshire’s important yet vulnerable culture sector at this time 1 member from OneRen Board / 1 member / and 1 officer appointment made by Engage Renfrewshire Future Paisley Partnership Board To oversee, develop and collaborate on the shared vision, step changes and plan for Paisley's future 5 members
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Organisation Description Appointments Required Notes Glasgow & the Clyde Valley Strategic Development Planning Authority (Clydeplan) Clydeplan is the operating name for the Glasgow and Clyde Valley Strategic Development Planning Authority Joint Committee and comprises the eight local authorities of East Dunbartonshire, East Renfrewshire, Glasgow City, Inverclyde, North Lanarkshire, Renfrewshire, South Lanarkshire and West Dunbartonshire Councils who work together on strategic development planning matters The principal role of Clydeplan is to prepare and maintain an up to date Strategic Development Plan (SDP) for the Glasgow city region. This process involves engagement through joint working and consultation with a number of key stakeholder organisations and the wider community 2 members Glasgow Airport Flight Path Fund The Flight Path Fund was set up with the sole intention of providing financial support to charities and community groups committed to improving the facilities and services available to local people in the Renfrewshire, Glasgow, East and West Dunbartonshire local authority areas 2 members Houston Old School Trust Provision of a Community/Arts Centre 2 members Linstone Housing Association To enhance the quality of homes and services and to provide new homes for tenants 1 member Local Partnership - Erskine, Inchinnan, Bishopton & Langbank To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Local Partnership – Gleniffer To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Local Partnership – Johnstone & Linwood To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair
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Organisation Description Appointments Required Notes Local Partnership – Paisley East To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Local Partnership – Paisley North, West & Central To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Local Partnership - Renfrew To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Local Partnership – The Villages To ensure that the Local Partnerships reflect the views and requirements of local communities and encourage people to be more involved Appoint chair Lowland Reserve Forces & Cadet Association Representing defence 1 member Member Officer Group: Public Protection 3 members from the Administration, 2 members from the main Opposition and 1 member from the other parties NHS Greater Glasgow & Clyde Board To ensure efficient, effective and accountable governance of the local NHS system and to provide strategic leadership and direction for the system as a whole, focusing on agreed outcomes 1 member (generally the Leader of the Council) This is a nomination and not an appointment OneRen (formerly Renfrewshire Leisure Limited Board of Directors) OneRen is the local charitable trust in Renfrewshire providing culture, leisure and sporting opportunities to help people enjoy active and healthy lives 3 members and 2 observers (officers)
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Organisation Description Appointments Required Notes PACE Theatre Company PACE aims to be a world class youth theatre organisation, allowing as many young people as possible to benefit educationally, socially and culturally, from the performing arts 1 member Paisley Museum Reimagined Limited An independent company established by the Council to drive the Capital Appeal for Paisley Museum, namely securing charitable trust status and the appointment of two independent Trustees to the Board 1 member Provost’s Community Awards – Judging Panel Recognising the unsung heroes within our communities 4 members Renfrewshire Access Panel Promotes a better accessible Renfrewshire 1 member Renfrewshire Area Support Team Area Support Teams (ASTs) replaced the Children’s Panel Advisory Committees and are responsible for supporting the national Children’s Panel at a local level 1 member Renfrewshire Citizens Advice Bureau Renfrewshire Citizens Advice Bureau (CAB) is a local, independent charity which provides free, impartial and confidential advice and information to give local people the tools needed to sort out their issues or problems. They are at the heart of the community and offer support on almost any issue. The services provided by the CAB are free, independent, confidential, impartial and available to everyone 2 members Renfrewshire Economic Leadership Panel Renfrewshire's Economic Strategy 2020-2030 sets out the ambitions and actions to achieve sustained, inclusive growth of the Renfrewshire economy over the next 10 years. Development has been led by the Renfrewshire Economic Leadership Panel, bringing together leaders from across the private and public sector, enterprise agencies and education and skills experts 1 member (Leader)
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Organisation Description Appointments Required Notes Renfrewshire Educational Trust A small private charity that helps children from financially- disadvantaged families living in Renfrewshire, East Renfrewshire and Inverclyde local authority areas to access education 2 members Renfrewshire Fairtrade Steering Group To promote fairtrade in Renfrewshire 1 member and 1 substitute member Renfrewshire Health & Social Care Integration Joint Board The Council and NHS Greater Glasgow and Clyde Health Board have agreed the integration model for Renfrewshire shall be the delegation of functions to a body corporate known as an Integration Joint Board which will assume responsibility for the planning and delivery of integrated services 4 members and 4 substitute members Renfrewshire Local Outdoor Access Forum The forum exists in accordance with the Land Reform (Scotland) Act 2003. It is an advisory body supporting Renfrewshire Council and any other person or body on any matters pertaining to the exercise of access rights, the delineation of rights of way and towards the resolution of disputes 1 member Renfrewshire Valuation Joint Board Established by the Valuation Joint Boards (Scotland) Order 1995 to carry out the valuation functions of Renfrewshire, East Renfrewshire and Inverclyde Councils. Also has the responsibility of carrying out Electoral Registration on behalf of the three constituent authorities 8 members and 8 substitute members
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Organisation Description Appointments Required Notes Scotland Excel Joint Committee Established as the Centre of Procurement Expertise for the local government sector in 2008. A leading non-profit organisation serving Scotland’s 32 local authorities and over 100 associate members from across the public and third sector 1 member and 1 substitute member Scotland Excel Executive Sub-committee Established as the Centre of Procurement Expertise for the local government sector in 2008. A leading non-profit organisation serving Scotland’s 32 local authorities and over 100 associate members from across the public and third sector 1 member and 1 substitute member Scottish Councils Committee on Radioactive Substances Established (a) to provide a mechanism to identify a common Scottish local authority viewpoint on matters relating to radioactive substances, in particular radioactive waste management; (b) to act as an interface with the Scottish Government, Scottish Parliament and regulatory bodies as they consult on radioactive waste management and clean-up policy and practice; and (c) to influence national policy on radioactive waste management in the interests of the communities affected 1 member and 1 officer Strathclyde Concessionary Travel Scheme Joint Committee 1 member and 1 substitute member Strathclyde Partnership for Transport (Strathclyde Passenger Transport Authority) The largest of Scotland’s seven regional transport partnerships running the Glasgow Subway, a host of specialist bus services and are responsible for delivering better public transport for all 1 member and 1 substitute member West of Scotland European Forum To identify EU/Brexit issues of relevance to forum members and to monitor and make representations on replacements for EU funding in the region especially in relation to economic and social regeneration 1 member and 1 substitute member
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Organisations who have not as yet submitted details of insurance cover Organisation Description Appointments Required Notes Clyde & Loch Lomond Local Plan District Joint Committee The Joint Committee has been established for the purpose of regulating the delivery of the Project by maintaining a strategic overview and monitoring the learning and development functions of the Members 1 member and 1 substitute member Glasgow City Region Education Committee Established to ensure democratic accountability through the regional partnership. This Committee will set the priorities for the year ahead, approve improvement/action plans and will receive reports on the progress of the plans and their impact 1 member and 1 substitute member Miss Elizabeth Kibble’s Trust To ensure that the young people in Kibble’s care are given the support they need to lead sustained, healthy and fulfilled lives. 1 member Nuclear Free Local Authorities (Scotland) To tackle in practical ways, and within their powers, the problems posed by civil and military nuclear hazards 1 member and 1 substitute member West of Scotland Archaeology Services Joint Committee To protect and further the respective planning-related archaeological interests; to further co-operation in the protection and monitoring of the archaeological resource; and to strive for uniform compliance with the requirements of all relevant legislation and Central Government guidance 1 member and 1 substitute member Williamsburgh Housing Association Limited To provide and develop high quality affordable homes and to maintain our commitment to continuous improvement in our service delivery and in the regeneration of our communities 1 member
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1. 2021 V1.0 ADVICE FOR COUNCILLORS ON ARM’S LENGTH EXTERNAL ORGANISATIONS 1. Introduction 1.1 This Advice Note, issued by the Standards Commission, aims to provide councillors with an overview of matters they should consider when they are involved with or have been invited to participate in an arm’s length external organisation (ALEO). 1.2 The advice focuses on councillor responsibilities under the ethical standards framework and seeks to assist councillors in recognising and dealing with potential conflicts of interest to minimise risks to governance and accountability arrangements. 1.3 Councillors have a personal responsibility to follow the rules in the Councillors’ Code of Conduct (the Code). This Advice Note is intended to help them interpret the provisions in the Code that may relate to their involvement with an ALEO. It should therefore be read in conjunction with the Code. 2. Background 2.1 The Standards Commission’s functions are provided for by the Ethical Standards in Public Life etc. (Scotland) Act 2000. This Act created an ethical standards framework whereby councillors and members of devolved public bodies are required to comply with their respective Codes of Conduct, approved by the Scottish Ministers, together with Guidance issued by the Standards Commission. 2.2 The role of the Standards Commission is to: • encourage high ethical standards in public life; by promoting adherence to the Codes of Conduct, and by issuing guidance on how the provisions within the Codes should be interpreted; and • adjudicate on alleged breaches of the Codes of Conduct, and where a breach is found, to apply a sanction. 2.3 While there is no legal definition of an ALEO, it is generally seen as a body with its own legal identity, that has been set up by a Council to deliver some of its functions. They are often used by councils as an efficient and cost-effective way of delivering public services including services relating to leisure, arts, culture, employment, economic development and urban regeneration, waste management, property development and social care. ALEOs are often referred to as ‘trusts’, although their legal structure is more normally that of a company or limited liability
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2. 2021 V1.0 partnership. Separately, some can also register as charities, provided they have a wholly charitable purpose. 2.4 While governance for ALEOs can be complex, it also needs to be strong and effective and should be managed through the Council’s ALEO governance and scrutiny framework. Representation on ALEOs by councillors can help ensure they are being properly run and that all funds are being used appropriately and in accordance with best value principles. Councillors can also inform the ALEO about the Council’s policies and priorities. However, councillors sitting on ALEOs have legal obligations and responsibilities to those ALEOs as well as to the Council. When members of an ALEO Board, councillors have a duty to act in the best interests of that organisation and not the body which appointed them. There is, therefore, the potential for conflicts of interest and risks to arise. 2.5 Audit Scotland’s reports ‘How Councils Work’ on ALEOs and ‘The Role of Boards’ both advise that board members should be aware of the skills and abilities required of any board position, and assure themselves that they can meet those requirements. Councillors should, therefore, ensure that they have the skills and abilities to meet the requirements of a member of an ALEO before accepting any nomination or appointment to an ALEO. Councillors may wish to refer to the Scottish Government’s ‘On Board - A guide for Board Members of Public Bodies in Scotland’, which outlines some helpful principles for roles on boards and the types of skills required. 2.6 The Scottish Parliament’s Local Government and Regeneration Committee published a report in March 2016 on an inquiry they had undertaken into ALEOs. The Committee recommended that councillors who are nominated or appointed as board members of ALEOs that are delivering public services should be provided with mandatory training on declarations of interests, conflicts of interests and risk awareness. This Advice Note is intended as an additional resource available to support the training provided to councillors by their Council. 3. Understanding the Council’s Role and Responsibilities 3.1 The ‘Following the Public Pound’ Code (FPP Code), published jointly by the Accounts Commission and COSLA, places a statutory obligation on councils to comply with it, regardless of how they deliver services. The FPP Code sets out the principles of best practice when councils establish significant funding relationships with companies, trusts and other bodies other than on a straightforward contractual basis. This includes when councils are entering into or implementing any arrangement or agreement with a body corporate. 3.2 Councillors should be aware that a requirement of the FPP Code is for councils to ensure councillors and officers are properly advised of their responsibilities to the Council and to the ALEO. This includes the responsibility to identify and declare interests. 3.3 The Accounts Commission’s 2011 Report ‘How Councils work series: ALEOs: are you getting it right?’ provides a range of practical advice for councils and councillors to ensure that they fulfil their responsibilities. Specifically, the report advises that in order to fulfil their FPP Code responsibilities, councils should provide councillors (and officers) with ongoing advice and training. Councillors may wish to ensure that they have read, and are familiar, with this advice and that they seek and attend such training. 4. Understanding an Individual Councillor’s Role & Responsibilities 4.1 It is important for councils to ensure governance and accountability in respect of both finance and performance. If a councillor is nominated, appointed or otherwise agrees to sit on an ALEO,
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3. 2021 V1.0 they need to be aware of their obligations to the ALEO and reconcile these with their obligations to the Council. 4.2 Councillors should seek an induction on being an ALEO member to assist them in understanding the roles and responsibilities they are to undertake. They should consider providing feedback on any training or induction they receive to help ensure it remains effective and relevant. 4.3 The Code makes it clear that councillors still need to observe the rules in the Code even while carrying out their duties as a member of an ALEO. They will also be bound by any code of conduct for the ALEO and are also responsible to the ALEO and for acting in its best interests. This obligation is outlined in Paragraph 3.30 of the Code, which states: If I am appointed or nominated by the Council as a member of another body or organisation, I will abide by the rules of conduct and will act in the best interests of that body or organisation while acting as a member of it. I will also continue to observe the rules of this Code when carrying out the duties of the body or organisation. In most cases a councillor’s duty under the Code to act in the public interest will align with their duty to act in the best interests of the ALEO. Where there is a conflict, however, they must follow the rules that govern such conflicts. 4.4 Councillors should make sure they are clear about the status of their appointment. For example, whether it is intended that they are to be an observer only, or whether they are on the Board in a decision-making capacity. If a councillor becomes a director of an ALEO that is a company, they will assume personal responsibilities under the Companies Acts. If they become a trustee of an ALEO that is a charity then they will have duties under the Charities and Trustee Investment (Scotland) Act 2005, as outlined in the Office of the Scottish Charity Regulator’s Guidance. This Guidance can be found at www.oscr.org.uk/charities/guidance/guidance-and-good-practice-for- charity-trustees. 4.5 In order to be able to understand the differing roles and responsibilities, councillors should ensure, before accepting an appointment or nomination to a partner organisation, that they are clear as to the status of that organisation. Councillors may wish to consider the following questions: • do both the Council and the organisation consider the organisation to be an ALEO? • if it is an ALEO, how is it constituted? Is it: a company, including a company limited by guarantee? a Limited Liability Partnership? A Scottish Charitable Incorporated Organisation (SCIO)? • regardless of how it is constituted, is the ALEO also a registered charity? • does the ALEO have decision-making powers or is it simply an advisory body? • has the ALEO been established wholly or mainly to provide services to the Council? • does the ALEO provide services to anyone else? 4.6 Councillors should check whether the ALEO has a contractual arrangement with the Council for the supply of goods and services. They should ensure that they understand the basis and content of such contracts and the implications of any failure to fulfil them. 4.7 Councillors should ensure that they are fully aware of the ALEO’s purpose and structure and why it was established. Councillors should also ensure they understand the functions the ALEO performs and the activities it undertakes, including any external trading activities which involve it contracting with third parties.
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4. 2021 V1.0 4.8 It is also important to have knowledge of the funding arrangements for the ALEO including the level of funding provided by the Council, the body’s solvency and whether the Council is a guarantor. Councillors should be satisfied that they are aware of the ALEO’s financial monitoring and reporting arrangements. 4.9 The table below summarises the information a councillor should consider before accepting an appointment or nomination to sit on an ALEO. Their responsibilities as a Board member of an ALEO. Any code of conduct for the ALEO. The legal status of the ALEO. The purpose and function of the ALEO and the activities it undertakes. The ALEO’s funding arrangements. Whether the ALEO has a contractual relationship with the Council. Whether the ALEO been established either wholly or mainly to provide services to the Council. Whether the ALEO trades externally (i.e. whether it provides services to other third parties). The status of their appointment to the ALEO. Whether the appointment would mean they would have to frequently declare interests at meetings of a particular committee, by reason of any personal conflicts, being their actions, connections, legal obligations; or the quasi-judicial or regulatory nature of the committee. Whether the Council approved the appointment. 5. Risks to Governance and Accountability 5.1 ALEOs can play a significant role in a Council’s service delivery and the Council is often a major if not the sole source of funding for an ALEO. Therefore, strong governance and, in particular, regular and proportionate monitoring, is essential. This is to ensure effective service delivery and to mitigate against any risks, which includes minimising potential conflicts of interest. Councils, when determining governance arrangements at the outset, should ensure they are considering both the advantages and risks of having its representatives on boards, and considering arrangements for funding and scrutiny that, for example, minimise potential conflicts. Both the FPP Code and the Accounts Commission’s ‘How Councils Work’ Report on ALEOs emphasise the need for councils to carefully consider representation, including ensuring the right mix of skills and experience required to govern the organisation, and to ensure that councillors and officers are advised of their responsibilities. 5.2 Governance in itself can pose a risk if a councillor has a role on both an ALEO Board and also on the Council committee that governs or scrutinises it. Such a councillor would have an inherent conflict between the interest in how the ALEO is governed and the interest in holding it to account and potentially taking decisions over funding. As such, councils should not entirely rely on those who sit on ALEO boards to scrutinise and monitor them. 5.3 It is important, therefore, that councillors are aware of and understand the scrutiny, reporting and monitoring arrangements that the Council has in place in respect of its ALEOs. 6. Registration of Interests 6.1 It is a councillor’s personal responsibility to ensure their register of interests is accurate and up to date. Councillors must ensure any changes are made within one month of their circumstances changing.
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5. 2021 V1.0 6.2 In terms of their membership of an ALEO, councillors should, in particular, consider whether they need to register an interest under Categories 3 (Contracts) and 8 (Non-Financial Interests). 6.3 It should be noted that if a councillor’s position on an ALEO had been remunerated, they would have been required to register it as such under Paragraph 4.4 of the Code. However, the Local Governance (Scotland) Act 2004 (Remuneration) Amendment Regulations 2011, prohibit a local authority from allowing a body controlled by it to make any payments to councillors by way of remuneration, other than the reimbursement of authorised and receipted expenses. 6.4 Category 3: If a councillor is a partner or a director of a firm or undertaking, including being a director of an ALEO, which has a contract with their Council to provide goods and services, they are required to register a description of the contract, including its duration. 6.5 Category 8: Councillors must register and describe any relevant non-financial interests, which includes membership of, or holding office in, public bodies, companies and voluntary organisations. Paragraph 4.22 of the Code states that non-financial interests in this context are: Those which members of the public with knowledge of the relevant facts might reasonably think could influence [their] actions, speeches, votes or decision-making in [the] Council (this includes its Committees and memberships of other organisations to which [they] have been appointed or nominated by [their] Council). 6.6 Councillors must, therefore, register any appointment to an ALEO under category 8. It should be noted that while councillors may be required to declare their interest in an ALEO, in terms of Section 5 of the Code, any such declaration would not remedy a failure to register in terms of Section 4. 6.7 Anything a councillor has included in their register of interests would normally constitute a connection, in terms of Section 5 of the Code. However, membership of an ALEO is not considered a connection for the purpose of the Code. This means that a councillor will only need to declare their interest in an ALEO to which they have been appointed or nominated by their Council if: • the matter being considered by the Council is quasi-judicial or regulatory in nature and the ALEO is the applicant or objector or otherwise has a material interest; or • the councillor has a personal conflict by reason of their actions, other connections to the ALEO (such as if a close friend of family member works for the ALEO) or their legal obligations. 6.8 Councillors are allowed to take part in any Council discussions and decision-making on finance and funding matters relating to an ALEO, even if they are appointed or nominated to that ALEO by their Council. 6.9 In terms of the second bullet point at 6.7 above, any councillor who has a connection to a matter involving an ALEO (over and above being appointed or nominated to it by their Council), will need to declare an interest and withdraw from the Council meeting where the matter is being discussed if the objective test below is met: where a member of the public, with knowledge of the relevant facts would reasonably regard [the] connection to a particular matter as being so significant that it would be considered as being likely to influence [the councillor’s] discussion or decision-making. 6.10 An example of where a councillor may have a personal conflict by reason of their actions could be where they have stated during a meeting of an ALEO that the ALEO requires further financial
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6. 2021 V1.0 support and have then voted in favour of applying to the Council for more funding. If the councillor’s political group subsequently makes it clear that its members are to vote, at a forthcoming Council meeting, to reject the funding request, then it is likely that the councillor’s actions would result in a personal conflict that would prevent them from taking part in the discussion and decision-making at the Council meeting. This is because a member of the public, with knowledge of the relevant facts, may reasonably regard the councillor to be personally conflicted. 6.11 If a councillor is unclear about how much information to include in their Register of Interests or in any declaration of interest, they should refer to the Code and to the Standards Commission’s Guidance and / or seek advice from their Council’s Monitoring Officer. 6.12 Councillors should note that what they may be required to register on an ALEO’s register of interests and what they may be required to declare at ALEO meetings may be different to that which is required by the Code. Councillors should seek advice if they are unclear about what is required. 7. Identifying Potential Conflicts of Interest and Making Declarations of Interest 7.1 The table below summaries the main points councillors should consider when identifying conflicts of interest and determining whether to declare an interest. 7.2 Councillors should ensure that they can identify potential conflicts of interest. These will include not just the potential for competing interests between the ALEO, the Council and also any other organisation they are part of but also any personal interests they may have. Paragraph 3.31 makes it clear that it is a councillor’s responsibility to identify conflicts of interest and it is for them to seek advice on their responsibilities to both the Council and ALEO, as required. Paragraph 3.31 states: I accept that if I am a director or trustee (or equivalent) of a company or a charity, as a nominee of my Council, I will be responsible for identifying, and taking advice on, any conflicts of interest that may arise between the company or charity and my Council. 7.3 Councillors should be aware that even if the ALEO does not have an interest in a matter being discussed, they may have a personal interest separate from their membership of the ALEO. It is a councillor’s personal responsibility to identify conflicts of interest. They cannot rely on Council officers to remind them to do so. The Code recognises that councillors who are appointed or nominated to ALEOs should be able to bring their knowledge and experience of that ALEO to the Council’s discussions and decision-making. Councillors will not normally have to declare an interest at Council as a result of their membership of, or appointment to, an ALEO. However, if they have a personal conflict by reason of their actions, connections or their legal obligations, or the matter being considered is quasi-judicial or regulatory in nature (and involves the ALEO), then they will have to declare an interest and withdraw from the meeting. The ALEO may have its own standards, rules and code of conduct. Councillors appointed or nominated to ALEOs should be mindful of their responsibilities under these as well as the Code. Councillors are allowed to take part in any Council discussions and decision-making on funding matters relating to any ALEO, even if they are appointed or nominated to that ALEO by their Council. However, where possible, they should avoid being on any the Council committee that is responsible for governing or scrutinising the ALEO in question.
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7. 2021 V1.0 7.4 Councillors should not rely on, or expect, Council employees to remind them to register interests or make any necessary declarations in respect of an ALEO (even if employees are aware of the councillor’s membership of it). It is a councillor’s own personal responsibility to register interests and make declarations as required by the Code. If a councillor is in any doubt, they should ask for help. 7.5 Councillors should consider whether agendas for meetings raise any issue of declaration of interest and, if so, should make any necessary declaration of interest as soon as practicable at a meeting where that interest arises. If a councillor identifies the need for a declaration of interest only when a particular matter is being discussed then they must declare the interest as soon as they realise it is necessary to do so (see paragraph 5.6 of the Code). 7.6 Councillors should begin their statement with the words “I declare an interest” and identify the item or items of business to which it relates. They do not need to give a detailed description of the interest, but the statement must contain sufficient information to enable those present to understand the nature of the interest. Councillors should indicate, when making the declaration, that they intend to leave the room (or online meeting) when the item is discussed. Councillors should then remove themselves from the meeting until the discussion and any decision-making on the item in question has concluded. Further guidance on this is contained in the Standards Commission’s Advice Note for Councillors on How to Declare Interests. 7.7 If accepting an appointment on an ALEO would mean that a councillor would have to declare interests frequently at meetings of a particular committee, or in respect of any role they are undertaking as a councillor, they should consider carefully whether it is appropriate to accept the appointment. This might be, for example, because their partner works for the ALEO in a role which would mean they would regularly have a personal connection to decisions the committee has to take; or if the ALEO often has applications before a regulatory committee of which they are a member. 7.8 The table below summarises the questions councillors should consider when identifying potential conflicts of interest and making declarations of interest. What are the potential conflicts between the specific ALEO they are appointed to and the Council? Are they clear about their responsibilities to both the ALEO and the Council? Do they have any personal interests in the matters being discussed? Is the matter being discussed at Council quasi-judicial or regulatory in nature and, if so, does the ALEO have an interest in it? Have they registered their membership of an ALEO as required by the Code? Have they checked the meeting agenda and papers to determine whether they will need to make any declarations of interest? Are they regularly making declarations of conflicts of interest? 8. Confidentiality 8.1 Councillors may have access to information that should not be disclosed to both the Council and ALEO. As such, they should be aware of the following confidentiality requirements outlined in paragraphs 3.21 to 3.23 of the Code: 3.21 I will not disclose confidential information or information which should reasonably be regarded as being of a confidential or private nature, without the express consent of a
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8. 2021 V1.0 person or body authorised to give such consent, or unless required to do so by law. I note that if I cannot obtain such express consent, I will assume it is not given. 3.22 I accept that confidential information can include discussions, documents, information which is not yet public or never intended to be public, and information deemed confidential by statute. 3.23 I will only use confidential information to undertake my duties as a councillor. I will not use it in any way for personal or party-political advantage or to discredit my Council (even if my personal view is that the information should be publicly available). 8.2 This means that if a councillor is provided with confidential information, such as information disclosed in a closed or private section of a Council meeting or legal advice obtained by the Council (either from officers or external legal advisers), they should not disclose or release it to the ALEO or to any other outside body or individual, even if it concerns the ALEO. If such a case were to arise, the councillor should raise the matter with the Council’s Monitoring Officer or their deputes. 8.3 If a councillor is in any doubt about whether information is confidential, they should seek advice from their Council’s Monitoring Officer or their deputes. 8.4 If a councillor is a director of an ALEO, they should ensure they are aware of their personal responsibilities under the Companies Acts. The law provides that a director of a company must avoid a situation in which they have, or can have, a direct or indirect interest that conflicts, or possibly may conflict, with the interests of the company and, in particular, the exploitation of any property, information or opportunity. In addition to this, a non-contractual duty of confidentiality may be imposed by common law whenever a director receives information they know or ought to know is to be regarded as confidential. A director’s duty of confidentiality can be expressed in a contract of employment or implied by law. 8.5 Similarly, charities legislation provides that a trustee of a charity must, in circumstances capable of giving rise to a conflict of interest between the charity and any person (which could include a Council) responsible for the appointment of the charity trustee, put the interests of the charity first; and disclose the conflicting interest to the charity and refrain from participating in any deliberation or decision relating to the matter in question. Such circumstances could include being privy to confidential information in their role as a councillor. 9. Training and Assistance 9.1 Councillors should obtain training on their role from the Council and / or the ALEO when appointed or nominated to an ALEO and should also attend any ongoing or refresher training in respect of their role as a councillor. Where the ALEO is a charity, specific training should be provided on the specific roles and duties of charity trustees. Depending on the resources available, the training may be provided by the Council or the ALEO. However, it is a councillor’s personal responsibility to seek out appropriate training and to ensure they are confident about any responsibilities and obligations in their different roles. If a councillor has any concerns about how an appointment to an ALEO will impact on their role as a councillor or require advice on interpreting the provisions in the Code, they should seek assistance from the Council’s Monitoring Officer. Councillors can also refer to the Standards Commission’s Guidance on the Code, which can be found on its website at www.standardscommissionscotland.org.uk/guidance/guidance-notes or contact the Standards Commission via email – enquiries@standardscommission.org.uk.
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9. 2021 V1.0 10. Sources of Information 10.1 Further sources of information that may be of assistance are listed in the table below. Publication Issued By Guidance and Good Practice for Charity Trustees Office of the Scottish Charity Regulator On Board – A Guide for Board Members of Public Bodies in Scotland Scottish Government Reports to the Accounts Commission: ALEOs Following the Public Pound – follow up report (See Appendix 1 for 1996 Accounts Commission/COSLA Code) Audit Scotland How councils work series: ALEOs: are you getting it right Accounts Commission Office of the Scottish Charity Regulator: Who’s in charge guidance? OSCR How councils work series: Roles and working relationships Audit Scotland The Role of Boards Audit Scotland Registration of Interests Amendment Regulations 2010 Scottish Statutory Instrument Registration of Interests Regulations 2003 Scottish Statutory Instrument Inquiry into arm’s length external organisations Scottish Parliament Local Government and Regeneration Committee