6th Report 2000
Stage 1 Report on
the Ethical Standards in Public Life etc. (Scotland) Bill
Response to the Consultation Paper on
This paper offers the views of the Commission for Racial Equality (CRE) on the Scottish Executive’s Consultation Paper which contains a draft of the proposed Ethical Standards in Public Life etc. (Scotland) Bill. It also sets out proposals for incorporating equality issues into the proposed framework, in line with Schedule 5 of the Scotland Act 1998.
The CRE welcomes this
consultation document, and the initiative to set up a new framework
for ethical standards in public life. Furthermore, the principles
of fairness and accountability, as demonstrated by the proposed establishment
of a Standards Commission and the repeal of Section 2A of the Local
Government Act 1986, are principles which the CRE would strongly endorse.
However, given the Scottish Executive’s expressed intention to mainstream
equality issues, the Commission for Racial Equality is concerned about
the absence of explicit measures to address issues of discrimination
and inequality within this consultation document.
Mainstreaming Racial Equality
As an enabling piece of legislation, the draft Bill gives powers to Ministers, and to the proposed Standards Commission, to draw up, amend and enforce codes of conduct for local councillors and members of certain public bodies. The CRE welcomes the fact that the model codes of conduct will require Parliament’s approval before they are introduced. However, it is not clear, from the consultation document, what procedures and opportunities will exist for the CRE and other advisory bodies to make their views known about the specific content of these codes of conduct. Furthermore, the consultation document fails to specify what input the Scottish Parliament (and, therefore, the various committees within the Parliament) will have into the drafting of such codes.
The CRE recognises that, since the power to amend equal opportunities legislation is reserved to Westminster, the Scottish Parliament is not in a position to make formal amendments to the Race Relations Act 1976. However, this does not affect the Scottish Parliament’s power and moral duty to extend, in effect, the scope of the Race Relations Act by compelling local councillors, members of public bodies and other public employees to adhere to the principle of racial equality. In fact, Schedule 5 of the Scotland Act 1998 specifically enables the Scottish Parliament to encourage the practice of equal opportunities, by:
Imposing duties on any office-holder in the Scottish Administration, or any Scottish public authority with mixed functions or no reserved functions, to . . . meet the equal opportunity requirements. (Scotland Act 1998, Schedule 5)
This Bill provides the Scottish Executive and the Scottish Parliament with a valuable opportunity to ensure that local councillors and members of public bodies have a clear duty to work for the elimination of discrimination, and to promote good race relations, throughout Scotland.
Referring to Other Codes of Conduct
The consultation document refers to an example of a Statement of General Principles which already guides the conduct of elected members of local authorities (Annex C, pages 29-31). Whilst this statement lists principles such as ‘selflessness’, ‘integrity’ and ‘propriety’, it makes no reference to racial equality, or to equal opportunities more widely. Similarly, the present Guidance on Codes of Practice for Board Members of Public Bodies, which is mentioned in the consultation document (page 14) as a document which would form the basis of many of the proposed new codes of conduct, makes only a very limited reference to equal opportunities. As a result, the CRE would be very concerned if such examples were to be used as models on which to base other codes of conduct.
The proposed Standards Commission will be able to decide on an appropriate sanction when breaches of the various codes of conduct are found to have occurred. These sanctions will range from censuring the individual concerned to disqualifying the individual from being, or becoming, a member of a local authority or of a relevant public body for a period of time. Breaching the principle of equal opportunities for all should, in the opinion of the Commission for Racial Equality, constitute a serious offence, and the CRE would, therefore, recommend that there should be strong and swift sanctions imposed against those councillors or members of public bodies who do breach this principle.
The CRE, whilst welcoming this consultation document, maintains that racial equality must be incorporated into any framework which seeks to "enhance the reputation of local government and to ensure a commitment to the highest standards" (page 5). The draft Bill itself proposes a sound structure for the enforcement of the various codes of conduct. However, the CRE remains concerned about the lack of detail with regard to the ways in which such codes will be drawn up, and about the absence of any commitment to incorporate equal opportunities into such codes, in line with Schedule 5 of the Scotland Act 1998.
Promoting Scottish Local Government
STANDARDS IN PUBLIC LIFE
ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) BILL
Local Government has long been committed to ensuring and maintaining the highest standards of probity in the conduct of local government, in particular, and in public life in general. COSLA welcomes the opportunity to play an active part in helping shape a modern ethical framework for those in Scottish public life and supports the desire to establish a clear framework and mechanism for dealing with such matters.
In addition, COSLA also welcomes the view of Frank McAveety, Deputy Minister for Local Government, when he stated that he looks forward to working with local government in the development of the new ethical standards framework, a partnership process which COSLA is happy to enter into.
COSLA has long supported the need for a review of the ethical framework in public life. COSLA supported the findings and recommendations of the Committee on Standards in Public Life (the then Nolan Committee) on standards of conduct in local government in England, Scotland and Wales published in July 1997. In that report Nolan stated:
He did, however, go on to say of local government:
COSLA welcomed those statements and believes that the current consultation paper and draft Bill goes some way to removing the profusion of rules and lack of clarity over standards in public life. COSLA, through its membership of initially a UK and then Scottish Office Working Group looking at draft new ethical framework schemes, hopes to have helped in creating a better framework in which ethical standards can be easily understood and if necessary enforced in public life.
COSLA welcomes the commencement of the next stage in the process of developing the best ethical framework for standards in Scottish public life and sees the current consultation paper as a good basis for further discussions. COSLA looks forward to fruitful discussions with both the Scottish Executive and the Parliament in achieving this aim.
As part of the developmental process seeking to secure the new ethical framework in Scottish public life, COSLA would suggest that the following matters of general principle and matters of detail are areas for further discussion prior to the introduction in the Parliament by Scottish Executive Ministers of the Ethical Standards in Public Life Etc (Scotland) Bill.
4. A General Framework of Ethical Standards
COSLA continues to support the introduction of a general framework of ethical principles which can be applied to all in Scotland’s public life. (Annex C of the consultation paper is a good starting point for discussions) At the end of the day, ethics are ethics and in order to create equity of treatment, the same framework of principles should apply across the whole of the public sector, be that a councillor, an MP, an MEP, an MSP, or a member of a quango. Although COSLA welcomed Frank McAveety and Wendy Alexander's commitment to widening the scope of the Bill during the summer of 1999. The Bill's scope is not wide enough. In particular it is disappointing that bodies such as local enterprise companies and further education college boards are not included. Parity of esteem for all in public life should be established in this area.
The public will expect all in Scottish civic life to be governed by the same set of ethical principles. They will not understand why councillors are governed by one set of rules and MEPs etc governed by another. Although it is accepted that codes of conduct specifically tailored to the individual organisation or collective group may be necessary, the framework principles within which those codes are written should all be the same.
5. Self Regulation
COSLA continues to support Lord Nolan’s view that local government should be given a leading responsibility for its own ethical standards with appropriate safeguards by way of external scrutiny and appeal mechanisms to ensure that action can be taken if internal mechanisms prove insufficient. The balance between internal self-regulation to secure ownership, coupled with external validation to ensure probity and public confidence is essential. This could be achieved with the establishment of Standards Committees in councils (internal regulation) on the one hand and a Standards Commission (external scrutiny) on the other.
Councils should be required to establish Standards Committees to enforce the Code of Conduct but at the same time the public will rightly want to be sure that these Committees act fairly. COSLA believes that securing public confidence can be achieved by a number of possible means:-
It is recognised that individually a number of councils have accepted the concept of only having a single Standards Commission for Scotland. The majority view of local government however is that councils should be empowered, within a regulated accountable and transparent framework, to self regulate themselves with regard to standards, a power available to other elected representatives such as MSPs, MPs and MEPs.
If individual Council Standards Committees were not required under the Bill, then COSLA and local government would seek to ensure that local government ownership of the process could be expressed in the make up and running of the Standards Commission. This point will be elaborated below.
COSLA should like
to comment on a number of specific matters which are raised in the
COSLA welcomes the
acceptance that there should be a single code governing the conduct
of members of councils. It also welcomes the Scottish Executive's
view that local government through COSLA should be involved in the
drafting of the code.
As stated above, COSLA continues to support the need to introduce a general framework of ethical principles by which all codes of conduct for the various parts of Scottish public life should be governed.
COSLA is concerned that many who are involved in public life have been omitted from inclusion in the scope of this Bill. For instance:-
8. Duties of Councils/Relevant Public Bodies
COSLA supports the establishment of a duty on councils and relevant public bodies to assist members to uphold the code. COSLA welcomes the imposition of this duty and notes that the Standards Commission may issue guidance to councils and relevant public bodies about the discharge of this duty. Prior to the issuing of any advice, the Bill should require the Commission to consult COSLA on the draft guidance together with relevant professional bodies such as SOLACE and SOLAR.
COSLA welcomes the proposals with regard to the establishment of rules concerning the treatment of members’ interests and their registration/declaration. Again, COSLA would urge that the Standards Commission, if it chooses to issue guidance on these matters, should be required by statute Bill to consult COSLA and relevant professional associations prior to issuing the guidance.
COSLA should like to make a number of points.
If the Standards Commission is to be established with the sole responsibility for dealing with allegations of breaches of the codes, (a position COSLA does not support), then local government would wish to ensure that those with relevant expertise are appointed to ensure that local government has a sense of ownership of the Commission.
COSLA is concerned that whilst elected councillors will be judged by the Commission ( with no right of appeal); un-elected appointed quango members will not, and a recommendation concerning the quango member will simply be passed to the person who appointed them, thereafter that person will make a decision whether or not to action that recommendation. COSLA rejects this proposition and would urge that the Bill be changed so that the Commission if established judges both councillors and quango members.
COSLA feels that further consideration needs to be given to the omission of a right of appeal against decisions of the Standards Commission. Whilst noting that judicial review can be made against the process, but not the decision of the Standards Commission, COSLA, would urge that a right of appeal to a Sheriff be included within the Bill. The lack of a right of appeal is particularly disappointing given that similar draft legislation in England and Wales includes a right of appeal and legal advice to COSLA suggests without an appeal mechanism the legislation may be in breach of the Human Rights Act.
Finally, COSLA would
seek clarification as to the standards of proof needed in such cases
and details of how any investigations and hearings would be conducted.
The Bill suggests that Scottish Executive staff might be seconded to the Commission. If, the Commission is to be seen as independent then the secondment of staff from the Executive may lead to a questioning of its impartiality. It has also been suggested that although the Bill requires the appointment of the Chief Investigating Officer, it should also include a requirement that a Clerk to the Commission be appointed to give legal advice etc as otherwise it may not comply with the Human Rights Act. Seconding staff from Scottish Executive may also have Human Rights implications on its impartiality.
COSLA welcomes the
proposals for a uniform and clear set of sanctions for breaches of
the code, something which to date has not existed. COSLA accepts the
need for sanctions but would seek clarification from the Scottish
Executive as to the circumstances in which these penalties as proposed
would be imposed. A right of appeal is also essential.
COSLA believes that clarification is necessary as to in what circumstances interim suspension would be imposed. COSLA believes that the public will perceive anyone suspended on an interim basis as being seen to be guilty. A presumption of innocence should be maintained and, on balance, COSLA would reject the concept of interim suspension. If an interim suspension is imposed, then the basis for that suspension needs to be clearly and publicly stated.
COSLA would urge that all investigations need to be carried out as quickly as possible and that it is hoped that interim suspension if introduced, would in effect be unnecessary as the process itself would be of such a quick nature that to consider interim suspension would delay the overall process.
In addition, COSLA would seek clarification with regard to the suggestion that although suspended (either for up to a period of 12 months, or on an interim basis), the councillor will remain a councillor and as such be able to continue to be entitled to hear and consult his/her constituents and make representations on their behalf.
The paper suggests that the councillor will only be suspended from taking an active part in council or committee meetings and will continue to have all the legal rights of councillor eg rights to information, use of council facilities etc. The suspension will also affect the public’s perception of the councillor and the relationship between the councillor and council’s officers. A great deal of further thought needs to be given to the implications of interim suspension before it is introduced. COSLA would suggest that unless an elected member is able to attend meetings of the council they cannot fulfil their duties and represent their constituents.
COSLA supports the suggestion that a councillor’s special responsibility allowance should be withdrawn during a period of suspension if the concept is introduced. Further discussion should be given to the question of whether any basic allowances should similarly be withdrawn. If, as is argued above once suspended then a councillor cannot fulfill any part of their elected member role, then their entitlement to a basic allowance must be questioned.
COSLA would point out that the Bill as presently drafted does not take account of Section 35 of the Local Government (Scotland) Act 1973 which provides that if a councillor fails to attend a meeting of the council, a committee or sub-committee for a period of six months, unless the council specifically excuses him or her, then the office of councillor is vacated. The Bill needs to recognise this Section and ensure that the suspension is a valid reason so that it does not lead to vacating of office.
COSLA notes that
as presently suggested a period of interim suspension imposed on a
councillor continues until any local government election. If the councillor
in question is re-elected, then the Commission may reimpose the suspension.
COSLA believes, if you accept the concept of interim suspension that
if there was good reason to impose the interim suspension in the first
instance, then the fact that the councillor has been re-elected is
irrelevant and the suspension should automatically continue. Cosla
would point out however that it does not support the concept of interim
COSLA supports the repeal of section 2A which is an intrinsically unjust piece of legislation because it picks out a particular part of the community as uniquely disfavoured in the eyes of the law. We agree with the arguments for repeal set out in the Executive’s consultation paper:
COSLA also recognises that the consultation on the repeal of section 2A has raised a number of concerns, particularly in relation to teaching on homosexuality. In part this is a consequence of a lack of public awareness of the range of child protection systems and quality assurance of what is taught in schools. We share the view of the Executive that these systems are capable of dealing with the risks of inappropriate teacher behaviour or teaching. We also feel, however, that it would be appropriate to review urgently the guidance to schools so as to ensure that the existing safeguards are at least maintained and if necessary enhanced in the light of the repeal of Section 2A. COSLA would expect this review to be undertaken on a joint basis. COSLA will also be developing guidance for councils on the implications of the repeal of section 2A and would be pleased to undertake this jointly with the Executive.
Submission to the Scottish Executive
‘Standards in Public Life’ - Scottish Executive Consultation on the Ethical Standards in Public Life etc. (Scotland) Bill
The Institute welcomes the proposal for a New Ethical Framework in Scotland. We have welcomed the work of the Nolan Committee and others in the recent past which have sought to introduce more transparency and openness in the affairs of government and public bodies generally, and believe that this development is a welcome measure to bring together a number of useful reports and initiatives into a single legislative framework. We also welcome the proposal for the long overdue repeal of Section2A of the Local Government Act 1986. More specific comment is given below.
New Ethical Framework
The establishment of a clear statutory Code of Conduct for local government councillors when working in their official capacity is a welcome measure. We accept that Nolan, COSLA and others have provided voluntary codes in the past, but this measure gives weight to this area of concern. We accept also that it is appropriate that COSLA should be given the lead role in drawing up this code, however we would press the Executive to ensure that there is full involvement of staff through their representative trade unions in this process. This is of particular relevance given the likely overlap of such procedures with current discipline and grievance or ‘whistleblowing’ arrangements. In particular, we would recommend that there should be formal consultation through the COSLA-Joint Trade Union Forum - the standing body which has been used successfully to discuss such issues as Best Value in the past.
We are happy also to endorse the proposal to establish a new statutory model code for members of relevant public bodies, adopted by each body to suit their circumstances. Again, for the reasons given earlier, we would hope that staff representatives are fully involved in this process. We welcome the attempt to set out those relevant bodies to which these new measures would apply, but we are unhappy with the restrictions in this area. In particular, we see no reason why these codes should not be applied to Local Enterprise Companies and Further Education College Boards of Management.
For some years we have argued for greater rigour and scrutiny in the appointment and oversight of Boards of Management in Further Education Colleges. We are aware of a number of questionable practices within the sector, some of which have been highlighted in reports and investigations at particular colleges. We do not believe that LECs and Boards are ‘ sufficiently regulated’ through such measures as company law. In particular, there is no process in company law which offers transparent declaration of interests. This measure, combined with the active scrutiny of a Standards Commission, offers a genuine improvement in the confidence the public could have over the operation of what are important public bodies, not private companies. It seems strange that it is proposed that Scottish Enterprise is subject to such a code in disbursing money, while the LECs should be exempt while spending it. Similarly, the position is equally strange for the Scottish Further Education Funding Council and FE College Boards.
We believe that the position
of University Courts should also be re-examined in this regard, although
we would agree that advisory NDPBs should be exempt.
The Institute welcomes the establishment of a clear and open register of members interests in both sectors. As said above, while public representatives and servants are subject to the same laws of the land as everyone else, we believe that the existence of other legislation does not offer the same confidence to the public as a specific requirement for declaration and registration of interests which is available to public scrutiny. The adoption of such a code of conduct offers protection to the individuals concerned as well as building the confidence of the public.
We believe that the establishment
of an Independent Standards Commission is again a welcome step. There
is a need for distance and professionalism in these matters, particularly
in the investigation of delicate matters where professional and institutional
reputations may be at stake.
We do not wish to make definitive comment on the arrangements for investigations, hearings and sanctions at this time. We would wish to give this closer scrutiny when the proposals are clearer. certainly we share the view that such a structure must be established if the code of conduct is to be effective. However, we would strongly urge that specific discussion and consultation with staff trade unions should take place to ensure that these arrangements are compatible with current discipline and grievance and ‘ whisteblowing’ procedures. The creation of a ‘double jeopardy’ situation for staff must be avoided, and it may be that these arrangements will require to be specifically negotiated and agreed with staff trade unions, depending on the nature of the terms and conditions and other agreements extant within the bodies concerned.
Repeal of Section 2A of the Local Government Act 1986
The Institute welcomes the proposal of the Scottish Executive to repeal Section 2A (Section 28) of the Local Government Act, 1986. The Institute believes it will be part of the larger process of dispelling ignorance and prejudice and we actively support the promotion of an education system which is socially inclusive, fosters tolerance and promotes social justice.
In campaigning for the Scottish Parliament, the Institute believed that the Parliament should address issues of social exclusion. It welcomes the recognition in the consultative document that one such group of people who are discriminated against and excluded are the lesbian, gay, bi-sexual and transsexual communities.
The Institute agrees that the legislation was, and remains, ill-conceived. There was no history of any such difficulties for teachers before the passing of this legislation; there have been no prosecutions taken under the act, and it is our view that the repeal will create no difficulties in schools. It is our view that repeal is long overdue, as the legislation served only to perpetuate stereotypes and prejudice and give legal backing to discrimination against a section of the community.
The Institute supports the statements that schools and teachers can deal sensitively with homosexuality and that schools "are well suited to nurture and promote personal and social development and to influence attitudes among pupils, to engender a sense of responsibility for individual behaviour and its implications for others, and to encourage the development of personal values."
Those schools and teachers who do not feel constrained by section 28 provide positive assistance and guidance for young people. However, the Institute recognises that section 28 prevented many teachers from providing appropriate support to the detriment of their pupils. Homophobic bullying is not acceptable. Like other forms of bullying it demeans everyone involved.
The repeal of section 28 will enable teachers to deal with this issue more effectively and sensitively. Legislation on its own will not be enough and must be accompanied by proper training and commitment from those charged with the responsibility of managing our schools and ensuring standards. "A Route to Equality and Fairness"(HMI, 1998) is designed to help schools "to evaluate their quality of practice in combating discrimination and achieving equality of opportunity for success.", and we remain concerned that this document should receive greater emphasis from HMI in the inspection arrangements.
Finally, in welcoming the views of the Scottish Executive with regard to education, the Institute would also wish to draw to its attention the situation of gay/lesbian/ bisexual/transgender employees in the education sector. The EIS Gay and Lesbian teachers’ network provides anecdotal evidence from a group of employees who feel isolated and fear exposure if not direct verbal abuse, intimidation, violence and discrimination. This may come from parents, pupils/students, colleagues and management. The existence of many excellent equal opportunities policies in local authorities which refer specifically to sexual orientation does not dispel their fears.
Ethical Standards in Public Life etc. (Scotland) Bill
4. Repeal of Section 2A of the Local Government Act 1986
A. Who Are Evangelical Alliance?
The Evangelical Alliance, which was founded in 1846, and is the umbrella body which brings together Britain's Evangelicals, of whom there are more than a million. The Alliance exists to promote unity amongst our members and to represent their concerns to the wider of Church, State and society. The Evangelical Alliance has three categories of members: individuals, local churches and other organisations. There are some 3000 local churches in membership, drawn from across 30 denominations. The organisation category embraces over 700 member societies, which are engaged in a variety of activities, including education, research, campaigning, caring for vulnerable people and missionary work.
EA broadly welcomes the Bill and in principle thinks the New Ethical Framework is an improvement to the present system. EA believes it is vital that Local Government works and the public should be assured that they are getting the best possible service. Most Councillors are hard working individuals who are doing their best for those who elected them. The proposed standards will make the framework easier for them to work and give more effective sanctions when required.
EA are however, opposed to the repeal of Section 2A. We do not see the need for any change in the law in this are. The Evangelical Alliance deplores any unjust discrimination against people of homosexual orientation, however, we do not believe that the removal of the Section will effect this issue. EA supports any individual's right to choose a lifestyle but we are convinced that there is no moral equivalence between a heterosexual relationship in marriage and other expressions of sexual behaviour.
EA want all children to be protected as our culture becomes increasingly sexualised. We believe our concerns are held widely in the community generally. EA welcome the verbal assurances given by the Executive that repealing of the Section will not lead to the promotion of homosexual practice but we can not understand, why the Section is being repealed. What protection will children and parents be given?
EA agrees with the Executive that "good sex education addresses the whole person, deals with self respect and respect for others and fosters personal responsibility. Schools are well suited to nurture and promote personal and social development ..."The law as it stands already allows teachers to educate children on homosexuality. A teacher can have an objective discussion in this area and there is no bar on children being told about homosexual practice. We would refer the Committee to the Scottish Office Circular 9/1988 dated 20th May 1988.
The Executive are committed to parents being involved in the education of their children. The law in Scotland at present does not allow a parent to withdraw their children from any lessons. The parent also has no right to be informed as to when these lessons are to take place. The way the curriculum is set up, schools have a lot of freedom as to how they organise sex education. It could form a part of a health education course or it could be taught through a range of subjects. EA would like to see a number of safeguards put into place to deal with these concerns. They are:
vi. Information on homosexuality should be restricted to sex education classes and not included across the school curriculum;
vii. Information provided about sex and sexuality in general should be appropriate to the age of the child;
viii. Sex education should take into account moral considerations and the value of family life;
ix. Schools should be required to consult with parents regarding the content of any information on sex and sexuality prior to it being passed to children;
x. Parents should have the right to withdraw their children from any lessons relating to sex and sexuality with which they disagree.
These safeguards could be established in one or two amendments to the bill. The Human Rights Act must be applied to new Scottish legislation; without the above safeguards the Bill may be in breach of the Act. The Executive are at present drawing up fresh guidelines, and EA welcome this move. However, unless these have statutory recognition they will not give children the protection they require.
EA are against any form of bullying and believe every school should have a comprehensive anti-bullying policy, which covers all types of bullying. We do not believe the repeal of the Section will help tackle this issue in schools. Teachers already have the powers to deal with bullying. The legal advice given to the Association of London Authorities stated; "..it is important to note that teachers retain the right, indeed the duty, to protect the welfare of their pupils. That will clearly involve teachers in protecting pupils from bullying and victimisation from other children who may taunt them because they or their parents are believed to be lesbian or gay."
There is have independent research on the number of pupils who are bullied because of their sexuality, we only have anecdotes. The Executive claim that homophobic bullying is "a significant feature" of bullying in schools. Where is the evidence for this? Stonewall commissioned a report on homophobic bullying from the London Institute of Education. The report concluded, "to date there has been no systematic survey on the experiences of young lesbian, gay men and bisexuals in relation to homophobic bullying."
EA would welcome an independent study being carried out, to see if there is a real problem in this area. Until this research is available, the law should be left unchanged.
E. Voluntary Groups
Councils across Scotland are already funding Scottish gay rights groups. There are numerous examples of this. For example, a conference for lesbian gay bisexual and transgender people in Scotland was held on 11th December 1999. The conference was organised by Equality Network and supported by The City of Edinburgh Council. This funding was presumably given on the basis that Councils provide services to homosexuals, which according to the Scottish Office's own legal advice, is perfectly legal provided that homosexuality is not promoted.
The only voluntary groups which Councils cannot fund or support at the moment are ones which actively promote homosexuality. Is this why the Section is being repealed?
The Parliament have committed themselves to listen to the people of Scotland before they bring in new legislation. EA believe that the majority of the Scottish public do not want the Section repealed. We believe the law should be left as it is. The situation at present allows teachers to educate pupils on all areas of sexuality and gives them power to stop any bullying.
If the Parliament, however are still determined to push through a repeal of the section, EA would want to see safeguards reflecting our concerns enshrined in legislation and we would be happy to assist in the drafting of the necessary amendments.
On behalf of Evangelical Alliance
COMMITTEE ON CHURCH AND NATION
An Ard Sheanadh Eaglais
ETHICAL STANDARDS IN PUBLIC LIFE etc. (SCOTLAND) BILL
The Church and Nation Committee welcomes the decision by the Scottish Executive to bring this Bill forward. We endorse the move to establish a Scottish standards commission. We note with approval and agreement the observation that most Councillors are conscientious and dedicated to public service. We believe that public service is a good to be cherished and promoted. Where it is undermined, whether by neglect or cynicism, or by ‘the inappropriate or unacceptable actions of a very small minority’, action must be taken. We recognise that this Bill is an important step in the process of taking that action. We are grateful to have the opportunity to contribute to the consultation process.
We also note with interest the establishment of the Renewing Local Democracy Group and the Leadership Advisory Panel and we look forward to the outcome of their work in due course.
We do not seek to comment on all aspects of the Bill. We would draw the attention of the Executive to a number of areas which are, in our view, of particular importance.
The Bill provides for the drafting of codes of conduct to apply to local government and to certain public bodies. Separately, the Standards Committee of the Scottish Parliament has been working on a code of conduct for MSPs. We believe that it is essential that there should be consistency across all levels of government. That is not to say that the codes should be identical in their terms. However, they should reflect the same general principles and should have in common the basis that public service is an honourable calling.
The Standards Commission which will be created by this legislation is limited in its competence to those bodies covered in the Bill. It may be appropriate to consider how it might work in conjunction with the Standards Committee of the Scottish Parliament in order to increase public confidence in politicians at all levels and in the political process generally.
The Consultation document provides in Annex C an illustration of a statement of general principles. We note that the Bill itself does not include such an illustration or model and understand that this will be the subject of secondary legislation. In drafting any model code, we believe that Ministers and those advising them should also have regard to the question of what it means to be a Councillor and of what the principles and purposes of local government are. The general principles in Annex C cannot be considered in isolation.
We would be interested to know the extent to which ministers would envisage relying upon or indeed incorporating the general principles set out in Annex C in the draft Councillors’ code. We would express our concern that such a statement on its own is unduly and unhelpfully negative. A code which merely prohibits and which does not commend public service as a good will not assist in developing the culture of mutual respect and openness.
We would also suggest that a code based exclusively on the above-mentioned principles lacks the dimension of corporate responsibility. We recognise that for good functional and operational reasons a code requires to refer to individual liability. However, the culture and ethos across any Council are of critical importance as they provide the context within which individuals work. We would wish to be assured that corporate responsibility be considered, recognising that there may be circumstances when a "bad attitude" can be identified but the particular individuals cannot.
It is not clear from the consultation document what the future relationships amongst the Standards Commission, the Local Government Ombudsman, the police and the Accounts Commission are envisaged to be. We would welcome clarification on this point.
Section 1(4) of the Bill allows the Ministers to consult ‘such association of Councils as seems appropriate to them’. We would seek an assurance from the Scottish Executive that in practice the consultation process prior to the introduction of a Councillors’ code will be much wider than CoSLA alone and that the relevant views of other institutions and individuals will be taken into acCount.
We note with interest the procedures set out for the investigation of complaints. We believe that these should be implemented according to principles of openness. At the same time, we are concerned that there should be satisfactory and reassuring protection for whistle-blowers. We would wish an assurance that proper measures will be taken to ensure that those in a position to report misdeeds do not suffer as a consequence.
Where there is found
to have been contravention of the relevant code by a Councillor or
by a member of a devolved public body, action may be taken (Sections
18 and 19 of the Bill respectively). We note that the action referred
to in these sections includes "suspension" (Section 18(1)(b)).
We also note that Section 20 provides for "a period of suspension"
as an interim measure which may be used in the course of an investigation.
We are concerned that by using the same term in both cases may lead
to confusion. In the first case, where a finding has been made, "suspension"
is clearly a sanction or punishment. In the second case, it serves
a different purpose; the person under investigation cannot be subject
to a sanction unless and until a finding has been made and the proper
procedures have been followed. There is a serious danger that the
status of a Councillor, for example, "under suspension"
may be unclear. Such a person’s interests would be prejudiced if the
wrong conclusions were drawn. We would suggest that alternative terminology
ought to be considered to resolve this problem. |Perhaps, for instance,
in Sections 18 and 19, the term "temporary disqualification"
might be used.
14 January 2000
Keep The Clause Campaign
The Keep The Clause campaign was formed in reaction to the proposed repeal of Section 2A (more commonly known as Section, or Clause 28) as presented in the Scottish Executive Consultation on the Ethical Standards in Public Life etc (Scotland) Bill. Keep The Clause is an umbrella organisation drawing support from secular, religious and ethnic groups across Scotland, all united in their concern over the Scottish Executive’s plans to repeal Section 2A.
Opposition to the repeal of Section 2A is not based on intolerance or homophobia, but a genuine concern about the erosion of traditional family values and protecting children from inappropriate campaigning by minority rights groups.
Many parents in Scotland feel the Executive has not sought their views on this and the aim of the Keep The Clause campaign has been to give the ‘silent majority’ a strong voice.
Public opinion is firmly behind the Keep The Clause campaign. Opinion polls such as those conducted by the Daily Record and more recently the poll conducted in Ayr, have consistently shown that more than two thirds of the people of Scotland are opposed to the Executive’s plans.
The strength of public opinion is also reflected in the number of signatures we have collected for our petition. To date, we have collected almost 100,000 signatures for the Keep The Clause petition. When this is viewed alongside other groups opposed to repeal, such as Protect Our Children who have collected over 25,000, it demonstrates the considerable ground swell of support for our position.
The Scottish Parliament was created to bring democracy and political responsibility closer to the people of Scotland to make them feel they are connected to the political process. In other words, to create a political culture that is inclusive. However, what this debate has demonstrated is that the current government, in its attempts to be ‘politically correct’, only speaks and acts for the most articulate and vocal minority groups.
No-one would argue that it is the responsibility of the state to protect the rights of minorities and to create a tolerant society, but in doing so, the state has to understand and be considerate of the values of the majority.
We must remember that 70% of children live in a married family environment, whilst only 0.1% live with same sex parents. We cannot condone the stigmatization of children in such circumstances, but the state has to make a decision about what is valued in society.
We therefore argue that homosexual relationships cannot be presented as having the same moral equivalence to marriage. As such, sex education should be designed to value and support heterosexual marriage. If Section 2A is to be repealed, then it is the responsibility of the Parliament, through this committee, to find a legislative alternative that does not discriminate against one group but at the same time protects and enshrines marriage as the central building block of society.
Keep The Clause welcomes this opportunity to present evidence before the Equal Opportunities Committee and we urge the committee to prove to the people of Scotland that the unique committee structure of the Scottish Parliament can marry the will of the Parliament will the legitimate concerns of the people. It is in this spirit that we outline our concerns.
The new clause does not support marriage as the central building block of society
The new clause requires local authorities to have ‘regard to – the value of stable family life’ in all its services relating to children.
Our first concern is that the term ‘regard to’ is not adequately defined. As such, it is unclear as to how this could be measured or enforced.
Secondly, the new clause offers no definition of ‘stable family life’. The First Minister has said that it is to be taken as an inclusive term because the Scottish Executive does not wish to be judgemental in its interpretation.
Brian Monteith recently tabled a parliamentary question asking the Executive for a clear decision:
The Executive has not yet responded with a definition.
European law provides for the protection of a person’s right to family life and home. Family, in this context, is considered to extend beyond formal relationships and legitimate arrangements and now covers children born outside marriage. None of the case law indicates that homosexual and transexual unions constitute ‘family life’.
It is unclear why the Scottish Executive considers the term marriage to be so ‘politically incorrect’ when in England, Education Secretary, David Blunkett, has laid down proposals that will require schools to teach children about the nature of marriage and its importance for family life. Children would also learn the significance of marriage and stable relationships as the key building blocks of community and society.
We would like to see the Scottish Parliament adopt a similar amendment to the new clause that makes a clear legal obligation on local authorities to ensure that marriage is taught as the central building block of society.
In September 1998, the then Scottish Office commissioned a research group TASC to carry out research into the extent and nature of violence and harassment by gay men in Edinburgh. The report says:
"discrimination, harassment and violence against gay men which permeates our society is rooted in an ideology which upholds heterosexual relationships as the norm and stigmatizes homosexuality. This ideology has been described as ‘heterosexism’, offers a more sophisticated and complex explanation of anti-gay hatred…
‘cultural heterosexism is disseminated through society’s principal social and cultural institutions such as religious, legal and education system …it is cultural heterosexism that provides the underlying conditions which justify the routine victimization of gay people
…this perspective holds that only through changes at an institutional level can the underlying causes of anti-gay violence be effectively addressed"
If the logic of this argument is taken forward, then in order to prevent the stigmatization of one group and create a more tolerant society, the fundamental values, norms and lifestyle of society have to discarded.
At the Equal Opportunities Committee Meeting on 13 March 2000, the Reporter for sexual orientation issues informed the committee about the outcome of a meeting between members of the committee and the Equality Network. During the meeting, the Equality Network outlined a working programme, which included an overhaul of Scots law to accommodate sexual orientation and the civil recognition of gay marriages.
Parents will be left without statutory protection
The repeal of Section 28 constitutes the removal of statutory protection to be replaced with no binding voluntary guidelines. There is no indication of how these guidelines will be enforced or what sanctions will be put in place for non-compliance. Parents do not feel that guidelines offer adequate protection.
We have always maintained that we trust the professionalism of teachers implicitly, but it is important to remember that Section 28 actually applies to local authorities and was enacted as a result of local authorities that where found to be using public money to actively promote homosexuality.
The proposed guidelines will not be binding on local authorities. In fact, local authorities have in the past ignored ministerial guidance on targets. What recourse in law do parents have if these guidelines are not applied?
We would wish to see the guidelines themselves made statutory, or at the very least there should be a statutory obligation placed upon local authorities to adhere to the guidelines.
The repeal of Section 28 could have implications for parents rights and European law
An opinion sought by Senior Counsel demonstrates that parents in Scotland do not have the statutory right to be informed about how homosexuality will be taught. In addition, they have no right to be given prior notice of lessons in which it will be covered. The legal right of withdrawal is complex and unclear.
Before any repeal of Section 2A is enacted, these issues should be addressed and parents should be given the legal right to review materials and be informed as to when and what context homosexuality will be taught.
The repeal of Section 2A may also have implications under European Law. There is a risk that European Convention rights may be breached if children are given lessons in which homosexuality is promoted. A challenge brought under Article 9 could succeed if the teaching amounted to inappropriate promotion or if it was offensive to the moral views of parents. European case law does not consider guidelines as sufficient for ECHR purposes because they do not have statutory force.
Section (b)* of the new clause does not define what is meant by inappropriate material
We welcome the Executive’s attempt to ensure that sex education materials are appropriate to a child’s age and stage of development. However, the term ‘appropriate’ is not defined. Who will decide what is appropriate and what criteria will they use to make this decision?
What is deemed appropriate by some, may not be by others. The Avon Pack, which uses homosexual role-playing, demonstrates this point. The Scottish Parent and Teachers Association told the Education, Culture and Sport Committee that a school governor in Bristol had found the pack wholly appropriate.
We find this astonishing, because any parents that have seen the pack are appalled by the content. In fact, the threat of homosexual role-playing was deemed so inappropriate that the Prime Minister assured the public that children would not be asked to participate in homosexual role-playing.
Parents must be given the right to vet and veto materials before they are used in class. The Executive must provide the public with a clear definition of what is meant by ‘inappropriate’.
Written Evidence on the Ethical Standards in Public Life etc. (Scotland) Bill
None of us live in pretend families.
We have become parents by choice, by accident, through IVF, through donor insemination, in a current relationship, in a previous relationship or by committing ourselves to a partner who already has children. In this we are no different, no more flawed or perfect than the rest of society.
We are real families. We have children and they go to school.
Many go to schools where homophobic remarks can go unchallenged and homophobic bullying happens around our children or involves them directly.
At present we can ask but we cannot expect their teachers to support and defend them. To do so would open them to the risk of attack and condemnation by the press and some parents. Until section 2A is repealed teachers work in a climate of fear and uncertainty. There is no solid ground where they can be confident that it is a safe for them to acknowledge lesbian and gay families as real and acceptable. In a school, where some parents may hold racist views, teachers are still expected to teach children "to be aware of and value differences" (A Curriculum Framework for Children 3 –5) to "be positive about themselves and their social and cultural backgrounds" and to "demonstrate respect and tolerance towards others" (Personal and Social Development 5 – 14 National Guidelines), but our families are defined in law as pretend, not only pretend but dangerous – something from which children must be protected.
Many parents and teachers do not agree with the law as it stands giving the balance of power to those who wish to promote ignorance, intolerance and homophobia.
Our children and grandchildren
and yours, will grow up white, black, mixed-race, female, male, able-bodied,
disabled, heterosexual, bisexual, homosexual, Muslim, Jewish, Hindu,
Christian, atheist, Buddhist, rich and poor. All of them deserve an
education that accepts and values the diversity of their background