Scottish Government Consultation on Proxy Voting for Councillors
Argyll and Bute Council · 21 November 2024
Back to Argyll and Bute Council — 21 November 2024 and its agenda
Text extracted from the council's PDF. Layout and reading order may differ from the original.
Page 1
ARGYLL AND BUTE COUNCIL COUNCIL LEGAL AND REGULATORY SUPPORT 21 NOVEMBER 2024 SCOTTISH GOVERNMENT CONSULTATION ON PROXY VOTING FOR COUNCILLORS 1.0 EXECUTIVE SUMMARY 1.1 Concerns have been raised with the Scottish Government around the absence of proxy voting provision for Councillors, specifically the absence of explicit provisions allowing for proxy voting for councillors on parental leave, or those who are unable to attend for other reason such as an accident or serious illness. The Scottish Government have issued a consultation and this report sets out the current position and provides a draft response for Council agreement. 1.2 The consultation closes on 28 November 2024 with further detail to be found here Proxy voting by councillors: consultation - gov.scot 1.3 Recommendations:- 1.3.1 Council is asked to consider the contents of the report and the draft consultation response for submission to the Scottish Government.
Page 2
ARGYLL AND BUTE COUNCIL COUNCIL LEGAL AND REGULATORY SUPPORT 21 NOVEMBER 2024 SCOTTISH GOVERNMENT CONSULTATION ON PROXY VOTING FOR COUNCILLORS 2.0 INTRODUCTION 2.1 The Scottish Government has issued a consultation looking at the idea of making a provision for Local Authority Councillors to have the option for votes to be undertaken by proxy in specific circumstances. 2.2 This report provides detail on the terms of the consultation and a draft response for agreement by Council. 3.0 RECOMMENDATIONS 3.1 Council is asked to consider the contents of the report and the draft consultation response for submission to the Scottish Government. 4.0 DETAIL 4.1 Concerns have been raised with the Scottish Government around the absence of proxy voting provision for Councillors, specifically the absence of explicit provisions allowing for proxy voting for councillors on parental leave, or those who are unable to attend for other reason such as an accident or serious illness. 4.2 Section 43 and Schedule 7 of the Local Government (Scotland) Act 1973 required councillors to attend meetings and vote in person. Section 43 of the Local Government in Scotland Act 2003 then made provision for the remote participation in and calling of local authority meetings. This section allows for meetings (including committees, joint committees and sub-committees) to be conducted in any way in which each member is enabled to participate, even if not physically present. It also amended Schedule 7 of the 1973 Act to change the relevant references from “presence” to “participation”. This allows the provisions of schedule 7 to take effect even if members are not physically present.
Page 3
4.3 However, there are no provisions which explicitly allow for proxy voting. There may be an argument that section 43 of the 2003 Act, by allowing local authority meetings to be conducted as long as members are participating, even if not present, already allows the use of proxy voting. However, there may be room for doubt as to the correct position and local authorities could face challenge. 4.4 The Government have suggested possible options to facilitate a form of proxy voting and these are outlined in the consultation. Options such as pairing or substitute members are some of the ideas which are suggested, however it is recognised that these options would be more problematic in smaller authorities or where there are a number of Independent Councillors as is the case with Argyll and Bute. 4.5 Therefore the proposal is that the Scottish Government would amend the Local Government (Scotland) Act 1973 to enable a Councillor in Scotland to arrange for their vote to be cast by a proxy. A further amendment would also be made which would require local authorities to agree and publish a scheme setting out how proxy voting would work in practice, where they choose to introduce proxy voting. 4.6 The operational details, including the criteria of the scheme would not be set out in legislation. It would be for local authorities to determine how a scheme could work in practice and under which circumstances proxy voting could be available, should they wish to allow for it. Joint guidance would be produced by COSLA and the Scottish Government to assist the drafting of the operational scheme. 4.7 The following criteria are suggested for inclusion within the operational guidance as suggestions on where proxy voting could be appropriate: i. maternity leave, paternity leave, parental leave, shared parental leave or adoption leave; ii. complications arising from pregnancy, childbirth, miscarriage or baby loss; iii. serious long-term illness or injury; iv. bereavement; v. attending to a person who is near the end of their life; vi. any other reason subject to agreement of the full Council. 4.8 The Government are clear that at the moment there is no suitable legislative opportunity to introduce this amendment should the consultation support the introduction of proxy voting. They have stated that they will continue to support authorities to investigate other options to enable Councillor participation until such time an amendment can be introduced. 4.9 As it stands the Council already has provision for Councillors to attend meetings remotely and has invested in the technology to facilitate Hybrid meetings going forward.
Page 4
5.0 CONCLUSION 5.1 The Scottish Government is currently undertaking a consultation on the possibility of making provision which would allow Local Authority Councillors to vote by proxy. Council is being asked to consider the detail and agree a response for submission to the Scottish Government to be sent by the deadline of 28th November 2024. 6.0 IMPLICATIONS 6.1 Policy – if this was brought forward the Council’s Constitution would require to be amended accordingly. 6.2 Financial - none 6.3 Legal – all legal points would be considered. 6.4 HR - none 6.5 Fairer Scotland Duty: 6.5.1 Equalities - protected characteristics - none 6.5.2 Socio-economic Duty - none 6.5.3 Islands - none 6.6 Climate Change - none 6.7 Risk - none 6.8 Customer Service - none 6.9 The Rights of the Child (UNCRC) - none Douglas Hendry Executive Director with responsibility for Legal and Regulatory Support Policy Lead – Councillor Mark Irvine 25 October 2024 For further information contact: David Logan, Head of Legal and Regulatory Support APPENDICES Appendix 1 – Draft Consultation response.
Page 5
Appendix 1 Proxy Voting By Councillors Respondent Information Form Please Note this form must be completed and returned with your response. To find out how we handle your personal data, please see our privacy policy: https://www.gov.scot/privacy/ Are you responding as an individual or an organisation? Individual x Organisation Full name or organisation’s name Phone number Address Postcode Email Address The Scottish Government would like your permission to publish your consultation response. Please indicate your publishing preference: x Publish response with name Publish response only (without name) Do not publish response We will share your response internally with other Scottish Government policy teams who may be addressing the issues you discuss. They may wish to contact you again in the future, but we require your permission to do so. Are you content for Scottish Government to contact you again in relation to this consultation exercise? x Yes No Argyll and Bute Council Kilmory Lochgilphead Argyll, PA31 8RT Information for organisations: The option 'Publish response only (without name)’ is available for individual respondents only. If this option is selected, the organisation name will still be published. If you choose the option 'Do not publish response', your organisation name may still be listed as having responded to the consultation in, for example, the analysis report.
Page 6
Questionnaire Question 1 Do you agree that an explicit provision should be introduced to allow a councillor to arrange for their vote to be cast by proxy x Yes No Question 2 Do you agree with the optional criteria which could be applied by a local authority to allow for proxy voting: i. maternity leave, paternity leave, parental leave, shared parental leave or adoption leave; ii. complications arising from pregnancy, childbirth, miscarriage or baby loss; iii. serious long-term illness or injury; iv. bereavement; v. attending to a person who is near the end of their life; vi. any other reason subject to agreement of the full Council. x Yes No Question 3 Are there any further comments that you wish to make on the proposal to allow for proxy voting (300 words maximum) While there is the potential for informal pairing agreements along the lines of those previously used in the Scottish Parliament prior to its introduction of explicit proxy voting provisions, Argyll and Bute Council does not currently operate such an informal arrangement. It is recognised that there may be difficulties in Councils in being able to operate and monitor an informal system of proxy voting, which would involve close consideration of s 35 of the Local Government (Sc) Act which provides “if a member of a local authority fails throughout a period of six consecutive months to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority, cease to be a member of the authority.” Representation and attendance by Councillors at Council meetings is a fundamental expectation of the electorate in a democratic process and any process for proxy voting must recognise that. Arrangements introduced during the Covid period to facilitate online and hybrid meetings, allowing Councillors to be present in person or virtually, have made meetings more accessible with attendance on a more flexible basis.