Local Authority Ethical Standards – are yours fit for purpose?
The report on Local Government Ethical Standards (‘the report’) was published by the Committee on Standards in Public Life (‘the committee’) on 30 January 2019.
In all, the 110 page report sets out 26 recommendations, most of which are directed at the government and will require either changes to primary legislation – so not a quick fix by any stretch of the imagination given the other pressures on the government currently – or to secondary legislation and the Local Government Transparency Code, which might happen a bit quicker.
There are also a further 15 best practice recommendations for local authorities that “should be considered a benchmark of good ethical practice, which we expect that all local authorities can and should implement”, presumably before the planned review by the committee in 2020.
The report addresses a broad range of areas including the standards regime, codes of conduct and interests, investigations, the role of Independent Persons, sanctions, town and parish councils, whistleblowing, councillor roles on outside bodies, access to information, the role of political groups, scrutiny, leadership and culture.
This note cannot possibly do justice to everything set out in the report but hopefully gives a flavour to some of the aspects to look out for.
The 26 recommendations
The recommendations cover a number of areas of governance and ethics, the consideration of which will keep Monitoring Officers very busy.
One of the areas seen in the headlines immediately following publication of the report has been the proposal to bring back the power of a council’s standards committee to suspend a councillor for up to 6 months, without allowances in the most serious cases. The lack of meaningful sanctions has been of concern to Monitoring Officers, scrutiny committees, councillors and the public, so the committee’s review of sanctions will be welcome. In addition, the report recommends a right of appeal to the Local Government and Social Care Ombudsman and a strengthening of the position and role of the Independent Person.
With regard to disclosable pecuniary interests, the committee has recommended that the requirements relating to these should be decriminalised, reflecting the views of many Monitoring Officers that criminal sanctions are not effective in practice. The committee has taken on board that the current arrangements for declaring and managing interests are “unclear, too narrow and do not meet the expectations of councillors or the public” and recommends that the current requirements for registering interests should be updated to include categories of non-pecuniary interests. Further, that the current rules on declaring and managing interests should be repealed and replaced with an objective test, as in Scotland, Wales and Northern Ireland.
Monitoring Officers will welcome the committee’s consideration of their “challenging and broad” role and the acknowledgment of the practical tensions and potential for conflicts of interest that can arise in the current standards regime. The report also includes a recommendation for the employment protections for statutory officers to be extended to include all disciplinary action and not just dismissal.
It is worth noting the following recommendations, which are those not earmarked for the government to act upon:
“The Local Government Association should create an updated model code of conduct, in consultation with representative bodies of councillors and officers of all tiers of local government”.
The committee’s rationale behind this recommendation is the variation in the content of codes of conduct, where local authorities have elected to have them, which the majority have. This variation often causes confusion to the public and amongst councillors too, particularly those councillors who may be dual or even triple-hatted and who may well have different codes of conduct that apply, depending on what type of councillor they are at any given time. In addition to the variety found in codes of conduct, the committee’s assessment is that many codes are deficient in that they do not cover key areas such as social media and bullying and harassment.
The recommendation is for the model code to be voluntary and adaptable, so not quite a return to the old regime, but at least there will be a common starting point. The proposal is that the scope of the code, as regards when a councillor is a councillor, should be widened by way of amendments to section 27(2) Localism Act 2011 (‘section 27(2)’) to include a rebuttable presumption that a councillor’s public behaviour, including comments made on publicly accessible social media, is in their official capacity.
The question of when a councillor is a councillor is an aspect that many Monitoring Officers have found perplexing when dealing with complaints about the behaviour of a councillor who, for example, has posted something offensive about members of a local action group on a personal blog, or who has turned up unannounced and uninvited at a local community meeting and after introducing him or herself as Councillor X, proceeds to make an inflammatory comment.
Any help through legislative change that reduces the ambiguity that can arise when trying to determine if a councillor, whom everyone agrees was purporting to be a councillor, falls within the section 27(2) definition ‘When they are acting in that capacity’, will no doubt be welcome.
Whilst the suggested statutory amendments would not replicate the position in Wales and Northern Ireland, where any behaviour that is sufficiently serious as to bring the office of councillor or the council into disrepute falls under the code of conduct, they should help provide clarity to councillors that their behaviour in public is rightly under public scrutiny and “should adhere to the Seven Principles of Public Life”.
“Local authorities should provide legal indemnity to Independent Persons if their views or advice are disclosed. The government should require this through secondary legislation if needed”.
One of the issues highlighted by the committee, and which has prompted this recommendation, is the public interest in disclosing the view or advice of Independent Persons under the Freedom of Information Act 2000 and generally as part of an investigation, in the public interest. As Independent Persons would not have the benefit of an indemnity, in the same way that a councillor or officer would, should legal action be taken against them, the committee has recommended that local authorities should take steps to provide a legal indemnity to Independent Persons if their views are to be disclosed, with the government confirming this through secondary legislation if needed.
“Parish council clerks should hold an appropriate qualification, such as those provided by the Society of Local Council Clerks”.
The committee has recognised the pressures on many clerks in town and parish councils, who often work alone and who may, at times, need support. Issues of “serious bullying, disrespect towards officers and fellow councillors, threatening and intimidating behaviour towards staff, obsessive behaviour and deliberate flouting of the need to declare interests” have been highlighted in the report, following a disproportionate number of complaints from a very small number of town and parish councils.
This recommendation is intended to help support the clerk to address the issues identified.
“Local Government Association corporate peer reviews should also include consideration of a local authority’s processes for maintaining ethical standards”.
Local authorities, through this recommendation are encouraged to engage in peer reviews, to test the effectiveness of their culture, organisational and governance structures, and ethical standards.
Issues relating to ethical standards are highlighted in the report as potentially arising as a result of the changing way services are delivered, through for example Local Economic Partnerships, joint ventures and outsourcing, and which can give rise to conflicts of interest, where for example, a councillor is a director of a local authority company or appointed to a charity or a trust, and where “transparency of decision making can become clouded”.
The increasing complexity of local authority decision making, especially commercial decision making and outsourcing, is a challenge that was similarly identified in the Local Government Lawyer Monitoring Officer survey in 2018.
Best Practice recommendations for local authorities
These recommendations relate to aspects to be included in the code of conduct including prohibitions on bullying and harassment and a requirement that councillors comply with any formal standards investigation. They also provide for publication, explanation and review of codes of conduct. With regard to review, best practice recommendation 3 sets out that local authorities should, where possible, seek “the views of the public, community organisations and neighbouring authorities“.
As part of the strengthening of the Independent Persons role, best practice recommendation 8 sets out that an Independent Person “should be consulted as to whether to undertake a formal investigation on an allegation, and should be given the option to review and comment on allegations which the responsible officer is minded to dismiss as being without merit, vexatious, or trivial“. Many Monitoring Officers will already be doing this as a means of ensuring the transparency, independence and fairness, as far as possible, of any standards process.
It is also recommended that following a formal standards investigation, a decision notice should be published as soon as possible on the local authority website, with “a brief statement of facts, the provisions of the code engaged by the allegations, the view of the Independent Person, the reasoning of the decision-maker, and any sanction applied“.
In respect of parish and town clerks, best practice recommendation 11 is that “formal standards complaints about the conduct of a parish councillor towards a clerk should be made by the chair or by the parish council as a whole, rather than the clerk in all but exceptional circumstances“. This best practice recommendation has been included as a way of providing necessary support to the clerk in such circumstances and a means of making it clear to councillors that unacceptable behaviour is not going to be brushed under the carpet.
Linked to the issues that can arise where services are delivered other than directly by the local authority, best practice recommendation 14 addresses the need for local authorities to “report on separate bodies they have set up or which they own as part of their annual governance statement, and give a full picture of their relationship with those bodies“. It goes on to provide that the separate bodies created by local authorities should “abide by the Nolan principle of openness, and publish their board agendas and minutes and annual reports in an accessible place“.
The report also provides a useful reminder that the Seven Principles of Public Life apply to anyone who works as a public office-holder and which includes all those who are elected or appointed to public office, and those appointed to work in “the Civil Service, local government, the police, courts and probation services, non-departmental public bodies, and in the health, education, social and care services”. Local authorities may want to review how well these principles are understood by its employees, consultants, volunteers, agents and contractors and reflected in relevant policies and procedures and, for example, in outsourcing contracts.
There is a lot of thoughtful and relevant content in the report and local authorities will no doubt find it a useful resource when reviewing their current standards arrangements, governance, ethics and culture.