Introduction
1.1
The purpose of this lessons learned report is to provide advice and support for Registered Social Landlords (RSLs), so that they can be better assured about the effective recording of decisions and discussions in minutes of governing body-level meetings. Most RSLs’ will have effective arrangements in place for recording decisions and discussions and we hope RSLs will find the lessons learned, advice and other suggestions helpful.
1.2
This lessons learned report was prompted by some of the findings of our engagement with individual landlords and also our reviews of RSLs’ governing body minutes, undertaken as part of our annual risk assessment process. As part of our last two annual risk assessments, we have looked at all RSLs’ minutes over a sample period of 3 months. We highlighted our findings from this work in the summary outcomes information we published in March 2022 and March 2023 following our risk assessments. And we did see an improvement in the availability and quality of minutes. We did however also see scope for further improvement in a small number of landlords in the following areas:
- ensuring minutes are up to date and published. Some RSLs were only offering a copy of the minutes by request;
- publishing in a timely manner;
- low attendance at meetings;
- ensuring the volume of agenda items is not excessive and information is provided to the governing body in advance of the meeting; and
- ensuring effective scrutiny and constructive challenge.
1.3
We therefore commissioned Paul Rydquist, an experienced Statutory Manager and governance expert, to produce this lessons learned report to help support RSLs. The advice within this report is based on a minute-taking protocol developed by the author which has been adopted by many of the RSLs he has worked with and has supported those RSLs to develop effective arrangements for recording decisions and discussions at governing body meetings. It also includes the author’s experience of working with RSLs to support governance improvement and in particular highlights the lessons learned from his reviews of governing body minutes.
1.4
The reviews carried out by Paul Rydquist also provided examples of a range of challenges in relation to minute-taking, many of which overlapped with our findings:
- ensuring clarity about what the governing body had actually decided on key issues;
- including information or comment on the rationale for making key decisions, or for rejecting significant proposals;
- demonstrating scrutiny or effective questioning and challenge by governing body members when considering key proposals or reports on performance, particularly in relation to financial reports on budgets, management accounts or longer-term financial projections;
- ensuring awareness and ownership by the main governing body of key decisions made in sub-committees, office-bearer groups, subsidiaries, etc.
- making appropriate arrangements for confidential meetings, and ensuring that a clear record of the outcome was both made and retained.
1.5
This lessons learned report highlights four key principles for effective recording of decisions and discussions:
- All governing body meetings have a reliable, permanent, complete and accessible record kept of its proceedings.
- Minutes are concise and factual, recording the key purpose and outcomes of all matters considered at the meeting, including how any conflicts of interest have been handled.
- There are clear arrangements for recording and keeping minutes of confidential matters which are discussed at governing body meetings.
- There is clarity about arrangements for preparing, amending, approving and publishing minutes.
1.6
This lessons learned report encourages governing body members to ensure that minutes of their meetings demonstrate effective governance and compliance with legal and regulatory requirements, wherever this is appropriate. Appendix 1 provides information about the formal framework for minute-taking, including associated regulatory requirements.
1.7
This lessons learned report is advisory and principle-based, enabling RSLs to identify and drive any necessary self-improvement. As with all advisory guidance, landlords should consider the principles and associated practice, and may decide to adopt the approaches set out in full, in part, or not at all.
Principle 1: All governing body meetings have a reliable, permanent, complete and accessible record kept of its proceedings
2.1
Minutes are the permanent record of the proceedings of a meeting. All governing body-level meetings must have a reliable record kept, accessible to future governing body members and others entitled or encouraged to scrutinise them, which records and evidences decisions made by the meeting, that is both accurate and complete.
2.2
An obvious starting point is to ensure that the nature, location, date and start and end time of the meeting are clearly recorded. Some Standing Orders will specify an expected duration for meetings, after which a resolution of the governing body is required to continue, and the Chairperson will need to be aware of any such limitations.
2.3
Recording attendance at meetings may seem a straightforward matter, but there will be benefits from categorising those governing body members attending, and not attending, into groups, and keeping all non-governing body members in attendance in a separate group:
- It is important to ensure that quorum requirements for the meeting are met. For those governing body members listed as present, it is helpful for the minutes to identify any co-optees who attend the meeting. Co-optees do not count towards the meeting’s quorum. On the rare occasions where we have made a statutory appointment to a governing body, the appointee will have full voting rights and will count towards the meeting's quorum. It may also be helpful to identify any such statutory appointees in the list of governing body attendees.
- The Chairperson of the meeting or others present with key governance responsibilities should not allow the meeting to commence until the quorum has been met.
- A separate list of apologies for absence should be included for those governing body members who have actually submitted apologies in advance.
- Constitutions will set out arrangements for handling non-attendance by governing body members, for example rule 44.3 of the Scottish Federation of Housing Associations’ Charitable Model Rules (Scotland) 2020 (SFHA Model Rules) provides that any governing body member will cease to be a member if they miss four governing body meetings in a row without special leave of absence.
- Governing bodies will not wish to inadvertently lose members who haven’t realised they may be putting themselves in that position. It can therefore be helpful to identify anyone who has been granted a leave of absence in the attendance section of the minutes. This can prompt Governance staff to alert the Chairperson in advance of any problems, so that arrangements can be made to advise the member of that risk, and discuss their continuing commitment.
2.4
Others present at the meeting who are not governing body members e.g. management team members, minute-taker, other staff, specialist advisors, others invited to participate, etc. can all be grouped as in attendance.
2.5
To ensure completeness of the minutes, it is helpful to match the numbering of items in the minutes to the numbering on the agenda.
2.6
Care should be taken to record any comings and goings of meeting attendees during the meeting – late arrivals; early departures; and participants leaving, then re-joining the meeting. This is important for several reasons, including:
- ensuring that the quorum is maintained throughout the meeting;
- highlighting compliance with conflict of interest processes, if the reason a person is leaving (but then re-joins the meeting) is to avoid participating in discussions that relate to a declared conflict of interest.
Principle 2: Minutes are concise and factual, recording the key purpose and outcomes of all matters considered at the meeting, including how any conflicts of interest have been handled
3.1
Minutes should be a brief summary capturing key points. They should also be comprehensive, in the sense that all matters considered at the meeting are clearly recorded.
3.2
There is no right or wrong way to approach recording the discussion, provided what is produced accurately captures the governing body’s intentions and decisions. A simple test of effectiveness is to ask: is this capable of being understood by someone not at the meeting?
3.3
The minute of a substantive agenda item might be expected to include:
- A brief summary of the purpose of the item – what is the governing body being asked to consider?
- A short summary of any discussion, noting arguments for and against the proposal, and any key clarifications.
- A summary of the rationale – the key reasons for any decision made, or for rejecting any recommendations made in supporting reports.
- A clear, separate statement of any actual decisions made.
- A note of anything referred or recommended to another committee.
- A separate statement of any follow-up actions that the governing body wishes to have taken.
3.4
The business items on the governing body’s meeting agenda can normally be classified as items for decision, for discussion, or for information or assurance, and agendas will often be structured to take the business in this order of priority. The outcome of consideration of items on the agenda will normally reflect the purpose of the item:
- Where an item is for decision, the meeting is considering proposals on a matter that is wholly within its remit - minutes should record approval or agreement to a final decision, or decisions on the matter.
- A sub-committee, or subsidiary governing body, may be asked to support a decision made elsewhere in the governance structure (e.g. by the parent governing body), in which case it may wish to endorse the proposals. Equally, if these governing body-level meetings do not have the authority to make final decisions on a matter under consideration, they may wish to recommend a course of action to the body that does have that authority.
- Where an item is for discussion, the meeting may be asked to consider certain issues, but no decision is expected – members are being asked for their views on the matter, perhaps as a prelude to final proposals being developed.
- Where an item is for information or assurance, the meeting may wish to note that it has been given that information and the position the governing body has adopted, for example if there is no comment or objection to the information, that should be recorded. By recording such outcomes the governing body signifies that it has been made aware of the matter, and has no objection to it if that is the case.
- It is of course possible for a decision to be made following consideration of an item which was for discussion, information or assurance. It is important the governing body is satisfied it has received all the information it needs to make its decision.
The use of consistent language in minutes to describe the outcomes reached and decisions agreed at meetings is important for clarity, accuracy and transparency.
3.5
If the governing body is divided on a particular matter, and the decision is put to a vote, the result should be recorded. A governing body member may request that their dissent from a particular decision is recorded in the minute of that item. This would not absolve them from their collective responsibility to support the final decision, unless there was a strong reason not to do so such as the decision which has been made is unlawful.
3.6
Actions noted in the minutes should be as clear as possible about the specific action to be taken; who is responsible for taking the action; and the deadline for getting it done. It is increasingly common practice for RSLs to prepare a rolling action schedule, updated at each meeting for new actions agreed and other actions completed, so that the governing body keeps track of how its decisions are being followed up, and nothing is lost or forgotten.
3.7
What not to include …
- The personal views or judgements of the minute-taker – keep it simple and neutral, aiming for an objective and constructive tone.
- Everything that is said, word for word. This is potentially confusing, and unnecessary or superfluous details could make it more difficult to make minutes publicly available due to freedom of information or data protection considerations (see Section 4 below).
3.8
Managing conflicts of interest
Regulatory Standards require that governing body members must act in the best interests of the Association, and not place any personal or other interest ahead of their primary duty to the RSL. Governing body members and staff must declare and manage openly and appropriately any conflicts of interest.
3.9
An RSL’s constitution will normally set out how such conflicts should be handled at governing body meetings. For example, the SFHA Model Rules require that if such a conflict occurs, or may occur, at a governing body-level meeting a member must declare it, and then will be required to leave the meeting while the matter is discussed, and cannot stay in the meeting while any vote on the matter is held. It is open to the governing body to decide that a declaration does not in fact represent an actual or potential conflict, in which case the member can remain in the meeting for that discussion, but if this is the case, the minutes should record it.
3.10
In our review of minutes, we found the more regular occurrence of declarations being made, often under standard “Declaration of Interest” items taken early on the meeting agenda. However, it did not always see that these declarations had been appropriately managed and recorded during the meeting (i.e. minutes noting the absenting of the conflicted member at the start of consideration of the relevant item and a return to the meeting once it had been dealt with). It may be that the appropriate action was taken, but if this is the case it is important that this is evidenced in the minutes.
Principle 3: There are clear arrangements for recording and keeping minutes of confidential matters which are discussed at governing body meetings
4.1
Governing bodies may wish to designate some items that come to their meetings for consideration as confidential for example commercially sensitive information, information provided in confidence, or personal information which if released might contravene data protection principles. Thereby, any associated information and reports circulated in advance and any minutes prepared of the outcome of confidential discussion would only be made available to a more limited audience, and not put into the public domain.
4.2
In order to maintain effective governance it is important that there is clarity about arrangements for designating particular agenda items, or parts of items, or whole meetings as confidential, and on arrangements for managing associated documentation, including minutes. Standing Orders and any associated policy documents should be explicit about:
- why any matter should be designated for confidential consideration at a meeting;
- who is responsible for deciding that this should be the case;
- who is allowed to attend during confidential discussions;
- how minutes of such discussions are to be prepared, and who should have access to them once they have been approved.
4.3
Guidance from the Scottish Information Commissioner indicates that public authorities like RSLs are not expected to make publicly available either:
- any information which would be exempt under the Freedom Of Information (FOI) legislation; or,
- any personal information which it would be unfair to disclose or might otherwise breach data protection regulations.
An RSL may withhold this information, or provide a redacted version for publication, but must explain why it has done so. Appendix 2 gives further information about FOI and data protection, and considerations that apply to both the taking and publication of minutes and other meeting-related documents.
4.4
Given these provisions, there would be many benefits in terms of simplicity and consistency for RSLs to align their policies on confidentiality at meetings with the exemptions to FOI publication requirements. In other words, any matter that falls within the terms of these exemptions may be designated as confidential. It is of course open to RSLs to consider including a wider range of matters in their meeting confidentiality policies but it is important to take into account obligations in relation to FOI. .
4.5
There are a number of exemptions under the FOI legislation, and detailed guidance on their scope is available on the Scottish Information Commissioner’s website. Those most applicable to RSLs are:
- S30 – Prejudice to the effective conduct of public affairs
- S33 - Commercial interests and the economy
- S36 – Confidentiality
- S38 – Personal information
4.6
Confidential items may occur as separate matters which could be dealt with in a separate part of the governing body meeting, or as part of items which will otherwise be dealt with as open matters. Where it is effective to split the business at meetings into an open part, and a confidential or reserved part, there are benefits in terms of simplicity,as all of the minutes of the “open” part of the meeting would be published, and all of the minutes of the confidential section would not.
4.7
It is possible that some matters considered in meetings as confidential and withheld from publication may still be the subject of FOI requests, in which case it will be necessary to consider whether an exemption applies to information requested under FOI legislation on a case by case basis. This is another reason why it is helpful to record the reasons for any particular item being confidential.
4.8
Given RSL commitments to openness and transparency, the general aim of confidentiality policy should be to make as much governing body-level meeting information available as possible, and to minimise the number of confidential items.
4.9
There should be clarity about who is permitted to attend discussion of any particular confidential item. There will be limited occasions where all staff, including the Senior Officer, will need to be excluded, for example where pay, pensions or board member only discussions with auditors, are on the agenda.
4.10
When these circumstances arise, sometimes in a crisis situation, the people who normally arrange the meeting, provide any accompanying papers, and take the minutes may not be available to fulfil these roles. In such situations it is incumbent upon the Chairperson to ensure that appropriate arrangements are made, including taking and approving minutes of the meeting, and then retaining them away from other governing body records so that they remain confidential.
4.11
There are examples of where good governance has broken down in such situations, for example where no record of discussion was taken; or where it was lost, and there was no audit trail of associated papers.
4.12
Information on outcomes of confidential discussion that is withheld from Senior Officers should be kept to an absolute minimum, as this may undermine the effective discharge of their responsibilities.
Principle 4: There is clarity about arrangements for preparing, amending, approving and publishing minutes
5.1
Roles and responsibilities
The Secretary has formal responsibility for taking and keeping the minutes of all meetings of the Association and its committees. In practice, this can be delegated to an appropriate employee, with the Secretary retaining responsibility for ensuring that these duties are carried out in an effective manner.
5.2
Minute preparation, amendment and approval
It is important for good governance that there is clarity about arrangements for the preparation and checking of draft minutes, before they are presented to the following meeting for approval.
5.3
Governing body members are responsible for ensuring the accuracy of the minutes and will normally pass a formal resolution approving the minutes of the previous meeting, with the resolution proposed and seconded by two governing body members who were present at that meeting.
5.4
The Rules require that once accepted as a true record, minutes should be signed by the Chairperson of the meeting at which they are presented for approval (or if this is not practicable, as soon as possible thereafter). If amendments are required, then a new set of minutes incorporating the changes may need to be produced before they can be signed. Governing bodies may wish to put in place arrangements that ensure that this process is completed quickly, rather than wait for one more meeting before approved minutes can be made available.
5.5
Publication of approved minutes
RSLs are committed to openness and transparency, and as part of this commitment are now required to publish their governing body minutes, usually via their website. This regulatory responsibility is mirrored by the requirements of FOI legislation.
5.6
RSLs may wish to adopt the approach of separating their minutes, with one set for all open items, and another for confidential matters. Then the matter of deciding what to publish and what not becomes straightforward: minutes of the open part of the meeting are made public, and minutes of the confidential part are not. If confidentiality policies include non-FOI exempt matters, then any discussion in these areas would need to be added to the “open” minutes for publication.
5.7
RSLs are generally meeting their obligations to publish by placing minutes on their websites. The guidance from the Scottish Information Commissioner makes it clear that it is insufficient to provide information that is only available for inspection online, as there are some whose personal circumstances may prevent them from accessing it in this way. For example, paper copies can be made available for collection at offices, or for posting out. The RSL can charge for these services.
5.8
It is important to publish minutes reasonably soon after the meeting at which they are approved, to ensure the most current information is available. The Scottish Information Commissioner expects published information to remain available (including via the website) for the current and previous two financial years.
5.9
Decisions on how long to retain data, including minutes, in archived records, must take account of any duties which apply to the RSL such as those from the Companies Act 2006, Data Protection principles and any requirements which may be within an RSL’s governance framework such as their constitution. Charitable RSLs should also take account of guidance from OSCR to keep and retain minutes of meetings. In relation to board and committee minutes, retention for the life of the Association may be appropriate. RSLs policy on data retention should set out how long minutes should be retained and the format in which they should be kept (eg electronic or paper or both).
Assurance and Effectiveness
6.1
Governing bodies are required to assure themselves about regulatory compliance and service effectiveness across all their activities. As part of this assurance process, the governing body will often expect to see / seek information from other parts of its governance framework e.g. Audit and Risk, Staffing and other sub-committees; the governance of subsidiaries, where these exist; etc. (See also the SFHA’s Social Landlord Self-Assurance Toolkit)
6.2
This need for assurance can be supported by the regular and prompt review of the minutes of these other meetings at the main governing body meeting. This helps to ensure the main governing body is fully aware, and takes ownership of what is being done in its name in other parts of the Association’s governance or group structure.
6.3
In terms of effectiveness, governing body members can maximise the impact of their meeting discussion and subsequent scrutiny and approval of minutes by asking themselves:
- Are we making the most of the opportunity to use our minutes to demonstrate our effective governance and compliance with legal and regulatory requirements?
- Are we content that the minutes we are approving will now be put into the public domain, and that anything we have designated as confidential will be excluded from publication?
Appendix 1: Formal framework for minute-taking
1.1
In addition to supporting effective governance there are two key formal requirements for RSLs in relation to the preparation and retention of minutes:
- Compliance with their constitution;
- Compliance with regulatory requirements, including the Standards of Governance and Financial Management for RSLs; Constitutional Requirements; and other regulatory requirements (see section 3 of Regulation of Social Housing in Scotland: Our Framework, 2019 for full details).
1.2
Constitution
Each RSL’s constitution will set out the requirements for keeping minutes of governing body meetings. Most RSLs have adopted a constitution based on the SFHA’s Model Rules, which includes at Rule 62:
- Minutes of every general meeting, Committee Meeting and sub-committee meeting must be kept. Those minutes must be presented at the next appropriate meeting and if accepted as a true record, signed by the Chairperson of the meeting at which they are presented. All minutes signed by the Chairperson shall be conclusive evidence that the minutes are a true record of the proceedings at the relevant meeting.
1.3
Regulatory requirements
- Regulatory Standard 1.3 requires that “The governing body ensures the RSL complies with its constitution and its legal obligations”. This incorporates compliance with the Rules (see above), and the Constitutional Requirements for RSLs (see page 17 of the framework for Regulation of Social Housing in Scotland).
- Regulatory Standard 4.1, the most directly relevant to minute-taking, requires that:
‘The governing body ensures it receives good quality information and advice from staff and, where necessary, expert independent advisers, that is timely and appropriate to its strategic role and decisions. The governing body is able to evidence any of its decisions.’
An RSL must clearly set out in the minutes of governing body meetings all decisions made to ensure it has a permanent record of them. Clear minutes are important for transparency and to demonstrate good governance and compliance with regulatory requirements.
- Regulatory Standard 2 is about RSLs being open, accountable and transparent about what they do, and demonstrating that they understand and take account of the needs and priorities of their tenants, service users and stakeholders. Minutes of meetings should be evidencing that this is the case.
- Constitutional Requirements include the following regulatory requirement:
‘It is clear what type of meetings can and should be held and their purpose. There are clear procedures to call all meetings, and it is clear what the quorum of meetings should be, and how resolutions will be passed, and decisions recorded, and how many meetings should take place each year, subject to a minimum of six governing body meetings a year.’
Most RSLs will have an approved set of Standing Orders, which address these issues, including how minutes are prepared and approved. It will be important for RSLs to assure themselves that these matters are set out clearly within such Standing Orders or elsewhere, and complied with.
- RSLs must report to tenants and others on how they are achieving or progressing towards the Scottish Social Housing Charter outcomes and standards. At outcome 2, on Communication, all social landlords, including RSLs, must manage their business so that:
‘Tenants and other customers find it easy to communicate with their landlord and get the information they need about their landlord, how and why it makes decisions and the services it provides.’
This goes beyond the requirements of Regulatory Standard 2, in expecting that RSLs will make it clear how and why they make their decisions, and this can be evidenced by recording something of the rationale for making key decisions in the minutes.
- In pursuit of such transparency, it is a regulatory requirement that RSLs must make publicly available, including online, up-to-date details of minutes of governing body meetings.
Appendix 2: Freedom of Information and Data Protection
2.1
In preparing the minutes of any governing body-level meetings, care must be taken to ensure compliance with freedom of information and data protection requirements and good practice. Since November 2019, RSLs are required to comply with the Freedom of Information (Scotland) Act 2002. They must also comply with the UK General Data Protection Regulation (UK GDPR), and the Data Protection Act 2018.
2.2
The legislation applies to recorded information (both electronic and paper records) held by each RSL, including information produced for governing body-level meetings: minutes of meetings, but also agendas and supporting papers, and internal correspondence such as emails. Information in governing body records can be requested under Freedom of Information legislation, and individuals can use data protection law to request access to personal information relating to themselves in governing body records.
2.3
The objectives of the Freedom of Information (FOI) legislation and the Regulatory Standards are well aligned – there is no argument about the importance of openness and transparency in the affairs of bodies like RSLs, and in proactively publishing information about their activities.
2.4
In order to comply with the FOI legislation, RSLs must adopt and maintain a publication scheme, and provide a guide as to what information it publishes proactively, and how to access it.
2.5
Most RSLs will have adopted the Scottish Information Commissioner’s Model Publication Scheme, first published in November 2018. For more information see the Scottish Information Commissioner’s website at itspublicknowledge.info
2.6
Sector guidance has been provided via the SFHA and the Glasgow & West of Scotland Forum (GWSF): Update to Open All Hours available now - The Scottish Federation of Housing Associations Limited (sfha.co.uk). This covers what is included in the Model Publication Scheme, and what to include in the guide, including templates and model policies.
2.7
The Code of Practice on the discharge of functions by Scottish public authorities under the Freedom of Information (Scotland) Act 2002 (FOISA) sets out binding guidance on how Scottish public authorities (such as RSLs) must comply with their obligations under FOISA. Part 2, section 3 of the Code sets out guidance on proactive publication, including requiring authorities to publish information about (1) their functions, how they operate (including their decision-making processes), and their performance; and (2) their finances, including funding allocation, procurement and the awarding of contracts.
2.8
The Model Publication Scheme includes details of what types of information the Scottish Information Commissioner will expect to see published, including “How we take decisions and what we have decided”. This includes agendas, reports and papers provided for consideration, and minutes of board (or equivalent) meetings.
2.9
RSLs need to be clear about which are the governing body-level meetings where they will publish minutes and which, e.g. sub-committee or subsidiary meetings, where they may not, and the rationale for this – some specialist advice may be helpful in reaching a conclusion.
2.10
Personal data and data protection
Personal data is information about any identifiable living person. Governing body minutes will contain information about those attending the meeting, reports of their opinions, actions that they must take, etc. and also information about third parties mentioned in discussion, for example employees or tenants.
2.11
Personal data is protected by data protection law, and it is unlawful to process (including to transfer or release) personal information unless certain conditions are met.
2.12
Guidance from the UK Information Commissioner (which has responsibility for regulating compliance with data protection law across the UK) indicates that basic information about both governing body members, staff and others attending governing body-level meetings (e.g. name / job title / role and responsibility/opinions expressed / other minor references) can usually be published, e.g. in governing body minutes. Other more sensitive personal information should not be published.