Standards of conduct
Local authorities should by now be familiar with operating their new arrangements regulating the conduct of their members. The Localism Act 2011 and subordinate legislation made extensive changes for English local authorities to the arrangements which had previously applied under the Local Government Act 2000 and subordinate legislation. Authorities which are within the definition of “relevant authority” in the Localism Act 2011 (which includes councils in England) are subject to the new arrangements.
The intentions behind the changes were to achieve high standards of conduct and to put in place an appropriate regime. In April 2012, Bob Neill, who was then a Minister in the Department for Communities and Local Government, said, when announcing the Department’s illustrative text for a code of conduct, that councils and communities can look forward to a new era of locally set codes of conduct that will prevent corruption, ensure high standards in public life, and put an end to petty, partisan and malicious complaints that have dragged down the reputation of local government. It remains to be seen whether that has been achieved. The Committee on Standards in Public Life has said that there are inadequate sanctions under the new arrangements. In practice, local authorities may be finding the early days of the new arrangements challenging, as they make use of the discretion they have to decide on the specific arrangements they use whilst at the same time ensuring that they comply with their duty to promote and maintain high standards of conduct. This note reminds local authorities of some of the main requirements to be aware of. It considers the subjects of:
- Codes of Conduct
- Standards Committees
- Arrangements to deal with allegations of breaches of codes of conduct
This note also suggests practical points that relevant authorities should consider when assessing if they have appropriate and effective arrangements in place to promote and maintain high standards of conduct amongst their members and co-opted members.
Codes of Conduct
Relevant authorities have been obliged to adopt codes of conduct for their members and co-opted members, as part of their duty to promote and maintain high standards of conduct. These must include provisions relating to the registration and disclosure of interests but unlike the arrangements under previous legislation, authorities are no longer required to adopt codes based on a national model. Nevertheless, many local authorities have chosen to adopt codes which reflect models suggested by organisations such as the Local Government Association and the National Association of Local Councils or indicative text published by the Department for Communities and Local Government.
Councils in England are no longer required to have the statutory standards committees which they established under the provisions of the Local Government Act 2000 and the Standards Committee (England) Regulations 2008. They may choose to do so and any such committee would be an ordinary committee of the council. This means that they would usually be politically balanced, unless a council took a decision, with no member voting against this, that political balance should not apply. They would also be subject to the usual requirements relating to access to information. They would not be required to include independent members and if councils decide to include some independent members on their standards committees, these would be non-voting.
Arrangements to deal with breaches of allegations of codes of conduct
The Localism Act 2011 has obliged relevant authorities to put in place arrangements for investigating and making decisions in respect of allegations of breach of their codes of conduct. The arrangements for parish councils must be arrangements of the principal authorities responsible for them but it is for the parish councils to decide what, if anything to do as a result of a finding of breach of their code of conduct.
The arrangements that relevant authorities have for dealing with allegations of breach of their codes of conduct must include provision for the appointment of at least one independent person. The independent person must be consulted by authorities on allegations they have decided to investigate and may also be consulted by members who are the subject of an allegation of breach of the relevant authority’s code of conduct. There are strict restrictions on the persons who may be appointed as independent persons. Members and officers of a relevant authority may not be appointed as the independent person for that authority, and nor may the relatives or close friends of such persons. A person is also prevented from being appointed as the independent person of a relevant authority if he or she has been a member or co-opted voting member of that authority in the previous five years. In response to concerns expressed about the potential loss of experienced and interested persons that would result from making former independent members of standards committees ineligible, the Government made regulations which contained transitional arrangements to allow them to be appointed as independent persons. Amending regulations were later made which restricted this to appointments lasting only until 30 June 2013 but authorities which appointed independent persons before the amending regulations were passed will have been able to do so without such restriction.
Relevant authorities have discretion as to the exact arrangements that they put in place. They need to strike a balance between ensuring that their arrangements are fair to members and complainants and any other interested parties and avoiding arrangements which are over-bureaucratic, complicated and lengthy. In practice, it seems that the importance which authorities place on the principles of natural justice mean that they include provision for investigations and hearings, as they would have been obliged to have under the old legislation.
The lack of detailed statutory obligations gives relevant authorities greater scope to seek to resolve allegations without investigating them. This allows authorities to filter allegations, so that only allegations of serious breaches or allegations which could not be resolved otherwise need to go for formal investigation.
Relevant authorities are not obliged by the Localism Act 2011 to include provision in their arrangements for members to be able to appeal against findings that they have breached the codes of conduct of their authorities. Authorities could decide to include appeal provisions in their arrangements but they would need to able to manage these themselves. There is no provision in the Localism Act 2011 for appeals to go to a body such as the First-Tier Tribunal (Local Government Standards in England) as appeals did under old arrangements. It may be that if several authorities decide to make provision for appeals, they could come to an arrangement to assist each others with the operation of these.
The Localism Act 2011 has made no provision for sanctions against members who are found to have breached the codes of conduct of their authorities. Authorities are able to censure members, to publicise breaches of their codes of conduct, to report to their councils and to recommend that members are removed from positions on committees and outside bodies. Some authorities have decide to include provision in their arrangements for training to be offered to members who have breached their codes of conduct. This could be a useful practical measure for authorities to use to improve the conduct of their members. However, if the members concerned decide not to take up these offers, the authorities do not have power to impose a sanction of training on them. Local authorities should bear in mind that, apart from the specific statutory provision which the Localism Act 2011 has made for them to regulate the conduct of their members, they are able to take the action that they consider necessary to allow them to discharge their functions effectively and to protect the safety and welfare of their staff. This was shown in the case of R v Broadlands District Council ex parte Lashley  All ER (D) 71.
The codes of conduct of relevant authorities must include provision for the registration and disclosure of “disclosable pecuniary interests”, as defined in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012. Members with disclosable pecuniary interests in business of their authorities are prohibited in participating in such business unless they have a dispensation. The Localism Act 2011 has introduced criminal offences relating to failure to register disclosable pecuniary interests and participation by members in business in which they have disclosable pecuniary interests. Members convicted of such offences are liable to a scale 5 fine and may also be disqualified from being a councillor for up to five years.
Disclosable pecuniary interests, as defined in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012 are not the same as personal and prejudicial interests which were included in the national model code of conduct that authorities adopted under previous legislation. Some authorities have chosen to include in their codes of conduct provision for interests similar to the old style personal and prejudicial interests and to impose associated constraints on their members.
Authorities and their members should also bear in mind the potential for their interests to affect the decisions they may take on such matters, even if such interests do not amount to disclosable pecuniary interests. If a member’s interest in a matter would lead them to predetermine a decision, it would not be appropriate for that member to participate in the decision, even if they are not subject to any specific statutory prohibition relating to disclosable pecuniary interests. If they were to do so, they would be at risk of breaching the code of conduct of their authority and making the authority’s decision vulnerable to challenge.
Practical points to consider
We suggest that practical points that relevant authorities should consider when assessing their arrangements to promote and maintain high standards of conduct amongst their members and co-opted members would include the following:
- Has the authority adopted a code of conduct which complies with the requirements of the Localism Act 2011 and which is effective for the requirements of the particular authority?
- Has the authority decided to retain a committee with responsibility for matters relating to the conduct of members? If so, has it decided not to apply political balance to membership or given any thought to this? Has it decided to appoint non-voting independent members or given any thought to this?
- Has the authority adopted arrangements which are manageable but effective for dealing with allegations of breaches of its code of conduct?
- Has the authority decided to give its members and co-opted members the option of appealing against findings that they have breached the authority’s code of conduct? If so, is it satisfied that it will be able to manage dealing with these?
- Is the authority considering the need to ensure that it is able to discharge its functions effectively and to protect the safety and welfare of its staff when it takes action relating to the conduct of its members and co-opted members?
- Are members of the authority clear about the obligations imposed on them by the authority’s code of conduct, by the requirements of the Localism Act 2011 and subordinate legislation, and by principles such as the need to avoid predetermination?
- Is the authority’s monitoring officer clear about his or her responsibilities relating to standards of conduct of members and co-opted members of the authority? Does the monitoring officer have access to sufficient resources to enable him or her to meet these responsibilities?
- Has the authority appointed sufficient independent persons to allow them to meet their responsibilities effectively?
Eversheds is experienced in advising on standards matters and is able to assist authorities with matters such as reviewing codes of conduct; advising standards committees, members, officers and independent persons; investigating allegations of breaches of codes of conduct, and providing training.