Standards are slipping: the government finally responds to Local Government Ethical Standards report

24 Mar 2022

Public Law and Judicial Review

The Department for Levelling Up, Housing and Communities has finally responded – more than two years after its publication – to the Committee on Standards in Public Life’s report on Local Government Ethical Standards.

The headline: don’t expect any changes to the legislation but there are a number of examples of best practice for local authorities to adopt.

The CSPL published its 20th report on the subject of ethical standards in local government in January 2019. In the report, the CSPL made 26 recommendations, which included various amendments to primary and secondary legislation. The report also identified a number of examples of best practice which it considered local authorities could implement without the need for changes to legislation.

In the meantime, the Local Government Association followed up on the CSPL’s first recommendation – the adoption of a model code of conduct – which was published in December 2020.

On Friday 18 March 2022, in a letter from Kemi Badenoch MP, Minister for Equalities and Levelling Up Communities, the government issued its response to the CSPL report.

Among the more important aspects of that response are:

  • On the issue of “official capacity”, local authorities should not apply an automatic presumption that any comment made by a councillor – regardless of the context – is subject to the code of conduct. The boundary between an elected representative’s private and public life should be acknowledged.

This is, with respect to the Minister, an unhelpful response which misses the point made by the CSPL. Recommendation 3 of the report was that there should be a “rebuttable presumption” that a councillor’s behaviour in public is done in their official capacity. The CSPL did not suggest that “any comment” made by a councillor “irrespective of the context and circumstances” should be “automatically presumed” to be subject to the Code.

It is disappointing that the government did not take the opportunity to provide greater clarity or guidance on this important and frequently contested issue.

In the meantime, chapter 2 of the CSPL report provides helpful guidance on how to define “official capacity” which (in my view) can be applied without the need for amendments either to the legislation or local codes of conduct. In particular: what counts as “relevant public behaviour” should be “drawn more broadly” for councillors; and comments on publicly-accessible social media sites are likely to be considered as done in public and therefore in an official capacity.

  • On disclosable pecuniary interests, there are no plans to add to the list of DPIs or to abolish the criminal offences relating to DPIs.

The government’s view is that the fairly narrow approach taken by the Localism Act 2011 to the registration and declaration of councillors’ “disclosable pecuniary interests” – underpinned by the threat of criminal sanctions – remains a “necessary and proportionate safeguard and deterrent against corruption”.

Monitoring Officers may disagree. There have been only a small handful of successful prosecutions for DPI-related offences. My experience suggests that prosecutions tend not to be brought because it will rarely be in the public interest to do so: breaches are often inadvertent and usually not done with any intent for personal gain. Criminalisation of DPI breaches often results in unacceptable delays in progressing otherwise straightforward code of conduct complaints because a referral to the police needs to be made.

Again, it is disappointing that the government did not recognise the need for reform of this important area.

On sanctions for breaches of the code of conduct, the government does not intend to give local authorities greater powers to punish councillors.

The government points out that the removal of the power of suspension or disqualification of councillors was a deliberate policy decision. Reinstating that power would “effectively reinstate [the] flawed [Standards Board] regime” which was in force prior to the Localism Act 2011.

There is certainly merit in the government’s position that “councillors are ultimately held to account via the ballot box”. However, to some extent, that assumes a level of public engagement with local politics which is unrealistic, especially in many parts of the country which do not have a thriving local press to hold councillors to account.

Admittedly, there is no easy solution but, in my view, a system which cannot impose meaningful sanctions on councillors who refuse to play by the rules – especially independent councillors not subject to party discipline – risks undermining confidence in local government standards.

On Independent Persons, there should be no maximum term limits.

While the government acknowledges the importance of preserving an independent person’s independence from the authority, it has helpfully acknowledged the challenges of recruiting new candidates and the impracticality of maximum term limits. Instead, the government recommends that a 2-year term, renewable once, be adopted as best practice – but subject to the needs and discretion of the authority.

On statutory officers, legal protection may be extended to all disciplinary action – not just dismissal.

The CSPL acknowledged the pressures on local authority statutory officers and noted that statutory protection from disciplinary action extends only to decisions to dismiss. As the CSPL went onto observe, the current arrangements do not protect statutory officers from improper political pressure being exerted through other forms of disciplinary action.

Therefore it is welcome news that the government has stated its agreement in principle with this recommendation and has indicated that it will consult on amendments to the relevant secondary legislation to implement it.

Matt Lewin, a member of the Cornerstone Barristers’ Public Law team, is regularly instructed to investigate and advise on local government standards cases.