‘Confidence in local democracy’ was the pithily effective strapline of the former Standards Board for England (later Standards for England – SfE). SfE was a non-departmental public body created under Part III of the Local Government Act 2000 (LGA 2000). It ceased functioning from 31 January 2012. SfE was responsible for promoting and maintaining high standards of conduct by local authority members and assisting them to observe the authority’s code of conduct. But while SfE’s tagline elegantly summarised the purpose of local government ethical standards, the old LGA 2000 regime was widely considered over centralised, bureaucratic and disproportionate.
The Conservative-led coalition which came to power in May 2010 therefore abolished it through the Localism Act 2011. This introduced a new slimmed-down standards regime. As the Committee on Standards in Public Life (CSPL) notes, the new structure included ‘a requirement for councils to adopt a code of conduct which, when viewed as a whole, was: consistent with the Seven Principles of Public Life; required the views of an independent person to be sought and taken into account when deciding on breaches of the code of conduct; and put a requirement for pecuniary interests to be registered and declared on the face of the bill’.
But while the new arrangements were streamlined, many across local government had real concerns that the ethical baby had been thrown out with the bureaucratic bathwater. In short, the new regime was widely considered unfit for purpose in promoting public confidence in local democracy.
In all the circumstances, CSPL decided to undertake a detailed review of local government ethical standards. It indicated that the review ‘was not prompted by any specific allegations of misconduct, but rather to assure ourselves that the current framework, particularly since the Localism Act 2011, is conducive to promoting and maintaining the standards expected by the public’. The review (among other things) examined the structures, processes and practices in English local government for: maintaining councillor codes of conduct; fairly investigating alleged breaches; enforcing codes; imposing misconduct sanctions; declaring interests; managing conflicts of interest; and whistleblowing.
Following extensive consultation between January and May 2018, on 21 January 2019, CSPL issued its 110-page report on Local Government Ethical Standards. This contained many pungent, practical and sensible observations, recommendations and best practice notes. All those with a professional interest in local government standards will wish to consider these closely and, as appropriate, lobby central government to legislate as required. Space does not permit detailed and comprehensive coverage of the recommendations but some salient ones are now noted.
As to codes of conduct, CSPL did not wish to return to a mandatory code because this would remove ownership of ethical standards from local authorities. It therefore recommended that the Local Government Association should (in consultation with member and officer representative bodies) produce an updated model code of conduct.
Given the difficulties encountered around whether or not a councillor can be said to be acting in an official capacity, CSPL recommends that councillors should be presumed to be acting in an official capacity in their public conduct, including statements on publicly accessible social media.
Sanctions, says CSPL, are needed (among other things) to give credibility to an ethical culture, so that the culture is not engaged with cynically or lightly. However, (apart from the disqualification provisions in the LGA 1972) the Localism Act 2011 removed the ability for councillors to be suspended or disqualified which many (including Lawyers in Local Government) have considered turned the current standards regime into a toothless tiger. CSPL therefore recommends a new power for local authorities to suspend councillors without allowances for up to six months with a right of appeal to the Local Government Ombudsman. As to parish councils, section 28(11) of the Localism Act 2011 is recommended to be amended, so that any sanction imposed on a parish councillor following a breach finding is to be determined by the relevant principal authority.
New amplified provisions on member interests and gifts and hospitality are recommended. In addition, section 31 of the Localism Act 2011 (pecuniary interests in matters considered at meetings or by a single member) should be repealed. It should be replaced with a requirement that councils include in their code of conduct that a councillor must not participate in a discussion or vote in a matter to be considered at a meeting if they have any interest, whether registered or not, if a member of the public, with knowledge of the relevant facts, would reasonably regard the interest as so significant that it is likely to prejudice the member’s consideration or decision-making in relation to that matter. This reintroduces the essence of the former useful ‘prejudicial interests’ wording in the former Local Authorities (Model Code of Conduct) Order 2007. Abolition of the criminal offences surrounding disclosable pecuniary interests is also recommended.
A strengthened role for the independent person (IP) is also suggested and local authorities should provide legal indemnity to IPs if their views or advice are disclosed.
In addition to a recommendation for greater transparency about the number and nature of code complaints, disciplinary protections for statutory officers are recommended to extend to all disciplinary action, not just dismissal.
The local authority monitoring officer is rightly described as the ‘linchpin’ of current standards arrangements. However, CSPL considers that authorities should institute arrangements to manage any conflicts of interest and statutory officers should be supported through training on local authority governance.
It is hoped that the government now takes the opportunity to legislate as recommended by CSPL to transform a weakened ethical governance regime into one that is properly fit for purpose.
Nicholas Dobson is a consultant at Freeths