New recommendations for councillors from Committee on Standards in Public Life
Local Government, Public Law and Judicial Review
On 30 January 2019, the Committee on Standards in Public Life published its long-awaited report on local government ethical standards, reflecting evidence obtained via a consultation exercise carried out from January-May 2018.
The report makes 26 recommendations. Below we highlight the top five that will be of interest to local authorities, in particular to monitoring officers. Some of the recommendations could be implemented quickly without the need for primary legislation – most important of these is the recommendation concerning amendments to registrable interests.
The wide-ranging report, which runs to over 100 pages, finds that while the majority of councillors and officers maintain high standards of conduct, there is clear evidence of misconduct by some – mostly bullying, harassment or other disruptive behaviour. The report also raises concerns about risks to standards under the current rules governing declaring interests, gifts and hospitality.
The report provides an excellent review of the current framework governing the behaviour of local government councillors and executives in England and then makes a number of recommendations to promote and maintain the standards expected by the public. While it identifies numerous points of best practice, it makes 26 separate recommendations for improvement.
Top five recommendations
The top five recommendations, likely to be of most interest to those in local government, are:
1. Updating the model code and extending it to Parish Councils: the report finds considerable variation in the length, quality and clarity of local authority codes of conduct. It therefore recommends enhancing quality and consistency by requiring the Local Government Association to create an updated model code. In a bid to help ease the burden on principal authorities (who must investigate code breaches by parish councillors), the report also recommends requiring parish councils to adopt the code of conduct of their principal authorities or the new model code.
2. Presumption of official capacity: perhaps the most arresting suggestion, the report recommends combatting poor behaviour by presuming councillors to act in an official capacity in their public conduct, including statements made on publicly-accessible social media. This arises from the perennial concern that the current understanding of public and private capacity is too narrow, undermining public confidence.
3. Extending the list of registrable interests: the report considers that current arrangements for declaring councillors’ interests are too narrow and do not meet public expectations, so it suggests refining the arrangements for declaring and managing interests, including extending the list of registrable interests to include two categories of non-pecuniary interest: (1) relevant unpaid commercial interests such as unpaid directorships; and (2) trusteeship or membership of organisations that seek to influence opinion or public policy. As this does not require primary legislation to be implemented, this is one recommendation which may soon be acted upon. We are particularly pleased to see written evidence submitted by members of Cornerstone Barristers was cited in relation to recommendation (iii): see more below.
4. A new “objective” test for when councillors must withdraw or not vote: monitoring officers will be particularly interested in the discussion in the report about the need to update the test for when councillors are forbidden from voting or participating in discussion on matters in which they have an interest. The report recommends the test be overhauled and that councillors be required to refrain from voting or withdraw whenever they have any interest at all – whether registered or not – that a member of the public would reasonably regard as so significant as to likely prejudice the councillor’s decision-making.
5. Strengthening the sanctions system: the report considers the current sanctions insufficient and so recommends allowing local authorities to suspend councillors without allowances for up to six months, with suspended councillors enjoying a right of appeal to the Local Government Ombudsman for investigation and a binding decision on the matter.
Other conclusions and recommendations
The report further concludes that there is no need for a centralised body to govern and adjudicate on standards and that various benefits exist to local authorities maintaining their responsibility for implanting and applying the Seven Principles of Public Life.
A number of other recommendations are likely to be of interest, including:
- Assisting local authority Monitoring Officers, the “lynchpin of the arrangements for upholding ethical standards” (p 81), by extending disciplinary protections and offering additional training for the statutory officers who support them.
- Giving local authorities a discretionary power to establish a standards committee to advise on standards issues and decide on alleged breaches and/or sanctions for breaching the code of conduct.
- Abolishing the current criminal offences in the Localism Act 2011 relating to disclosable pecuniary interests, which are said to be disproportionate in principle and ineffective in practice.
- Requiring local authorities to take a range of steps to prevent and manage conflicts of interest that can arise when decisions are made in more complex and potentially less transparent contexts such as Local Enterprise Partnerships and joint ventures.
- Fostering an ethical culture and practice by requiring councillors to attend formal induction training by their political groups, with national parties adding the same requirement to their model group rules.
The report recognises that many of its recommendations would require primary legislation and therefore be subject to parliamentary timetabling. The remaining recommendations – in particular those relating to registrable interests (as mentioned above), statutory officers and formal training for councillors – could however be implemented relatively quickly. The Committee intends to monitor the uptake of its suggestions in 2020.
Robin Green, Estelle Dehon and Dr Alex Williams, all members of the Cornerstone Planning and Government teams, submitted written evidence item 281 to the committee. Their evidence was cited at p 45 of the report in relation to recommendation (iii) above, on registrable interests.
Robin and Estelle are also contributors to Cornerstone on Councillors’ Conduct (Bloombsury Professional, 2015), which identifies and explains the law following the changes implemented by the Localism Act 2011 in relation to the standards system governing the conduct of elected members in local government.