Raising the standard

Ethics_120x90Local authorities looking to implement the standards provisions of the Localism Act 2011 will have to make the best of a bad job, writes Peter Keith-Lucas.

The standards provisions of the Localism Act 2011 may be seriously flawed, but they are now law.

The only outstanding items are the regulations defining ‘disclosable pecuniary interests’ and confirmation of the implementation date. 1 April 2012 had been suggested as an implementation date, but local authorities have suggested that their annual meetings in May 2012 might be a more appropriate date for council to approve a new Code of Conduct and introduce the new arrangements, avoiding the need to approve the new arrangements at the budget council meeting.

Faced with this tight timetable, it is safe to assume that the Government will not consult on the regulations, so we can fear drafting of the same quality as the Act.

Councils can wait for the regulations to come into force. But, sensibly, what can they do now?

Start recruiting the new independent persons

The Act abolishes the current co-opted independent members of standards committees, and requires each principal authority to appoint at least one independent person (IP).

The new IPs must be consulted by the authority before the authority makes a finding that a member has failed to comply with its Code of Conduct or imposes any sanction, and can usefully be consulted by that authority at other times, such as on the decision whether to resolve or to investigate a complaint. Oddly, the IP may also be consulted by a member against whom a complaint has been made, which would seem likely to prejudice the IP in any subsequent consultation at a hearing on that complaint.

But, if the new IP(s) must be in place for May 2012, it would be sensible to start writing a job description and settling the remuneration (allowances and expenses) which the job will attract, and getting an advertisement out there, so that the current standards committee can consider any applications and make a recommendation to the annual meeting of council.

Unfortunately, the Act bars anyone who is a co-opted member of a standards committee from being appointed as an IP for five years. So it appears that the learning and trust built up by the current co-opted independent members will be lost.

Start drafting their own Codes of Conduct

They can ask their current standards committees to consider and recommend to council what should be in their new Code of Conduct. The intention was to give each authority discretion as to what to put in their Code, but the Act now requires:

a.  That each Code must be consistent with seven principles:

  • selflessness;
  • integrity;
  • objectivity;
  • accountability;
  • openness;
  • honesty; and
  • leadership.

Curiously, the former general principles of personal judgement, respect for others, duty to uphold the law and stewardship have disappeared. But a standards committee may wish to consider whether the general conduct rules in Paragraphs 3 to 7 of the current Model Code can be improved on.

b. That each Code includes provisions which the authority considers to be appropriate for the registration and disclosure of pecuniary and “other than pecuniary” interests. Authorities will need the regulations to define what constitutes a disclosable pecuniary interest before they can say exactly what non-pecuniary and non-disclosable pecuniary interests should be registered and/or disclosed. But if we broadly equate the new disclosable pecuniary interests (DPI) to the current prejudicial interests, which require registration, disclosure and withdrawal, then it is feasible to consider whether the authority should require registration and disclosure of all current personal interests, or whether the current definition in Paragraph 8 of the Model Code can be trimmed.

c.  That each authority determine when members must withdraw from the meeting room for DPIs and other interests. The Act makes participation on a matter despite a DPI a criminal offence, unless the member has a dispensation, but leaves the issue of withdrawal to be dealt with in standing orders. In practice, if we follow the parallel between DPIs and prejudicial interests, it may be appropriate only to require withdrawal where the member has a DPI.

Standards committee

The current standards committee is abolished with the repeal of Section 55. But each principal authority must adopt arrangements for dealing with misconduct complaints and few authorities will want to take every complaint to full council. So most authorities will want to establish a new ‘voluntary’ standards committee, and might ask the current standards committee to consider what form the new committee might take.

Specifically:

a new ‘voluntary’ standards committee must be appointed proportionately;

it cannot include the new IPs. Strictly, an IP could be co-opted as a non-voting member of the committee, but cannot chair it (as the Chair must have a second or casting vote) and would be precluded from participating on a complaint where he had previously been consulted by the respondent member;

it does not include parish council representatives, unless the principal authority chooses to co-opt them – see the box on page 7.

‘Arrangements’

Each authority must adopt ‘arrangements’ which set out how it will deal with misconduct complaints. So it needs to consider:

  • Who will receive complaints? It might be convenient to appoint the monitoring officer for this purpose.
  • Who will decide if a complaint can be resolved informally? Can the monitoring officer, in consultation with the IP, seek an informal remedy from the respondent councillor which avoids the need for a formal investigation?
  • Who will decide that a complaint merits formal investigation? Can this be delegated to the monitoring officer, with a right to refer a difficult complaint to standards committee for decision?
  • If an investigation shows evidence of misconduct, should it go automatically to hearing, or should the monitoring officer have one last chance to resolve the matter informally to the complainant’s satisfaction?
  • How will local hearings be conducted? Do you need a standing sub-committee of the standards committee for this purpose?
  • Finally, what action can you take where a member is shown to have breached the Code? As the Act says that you can only deal with breach of code under such ‘arrangements’, it is necessary to set out the range of possible actions in the arrangements.

What actions can be taken?

This was discussed in R v Broadland DC ex parte Lashley, in which the Court of Appeal held that authorities have a power of self-regulation, to enable them to continue to discharge their functions effectively, rather than to punish an individual member. These powers reside with full council, so would have to be delegated to a new standards committee. But the range of actions might include the following:

  • naming and shaming – by reporting the committee’s findings to council for information;
  • recommending to the member’s Group Leader (or in the case of un-grouped members, recommend to council or to committees) that he/she be removed from any or all committees or sub-committees of the council;
  • recommending to the Leader of the council that the member be removed from the Cabinet, or removed from particular portfolio responsibilities;
  • instructing the monitoring officer to arrange training for the member;
  • removing from all outside appointments to which he/she has been appointed or nominated by the authority;
  • withdrawing facilities provided to the member by the council, such as a computer, website and/or email and Internet access; or
  • excluding the member from the council’s offices or other premises, with the exception of meeting rooms as necessary for attending council, committee and sub-committee meetings.

Will it work?

The answer is that authorities will try their best to make it work, even where the legislation simply does not make sense.

The new regime offers greater flexibility to deal with lesser misconduct. It puts a considerable burden on the monitoring officer’s ability to command the respect of members, and the absence of statutory sanctions means that there is only limited action which can be taken against the serious and serial offender.

Peter Keith-Lucas is a Local Government Partner at Bevan Brittan LLP. He can be contacted on 0870 194 1741 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..

STANDARDS AND PARISHES

I thought district councils were no longer responsible for parish council standards. In the House of Lords, the Government continued to assert that parish councils should be spared the bureaucracy of standards and so should be left to deal with complaints of misconduct directed against their own members. But in a Damascene conversion, at third reading stage in the House of Lords, the Government made district and unitary councils responsible for handling standards complaints against parish councillors.

What must district and unitary authorities do?

Each district and unitary authority must:

  • maintain a register of disclosable pecuniary interests (‘DPIs’) for each parish council in its area, making it available for inspection at the principal authority’s offices and on its website;
  • adopt ‘arrangements’ which set out how it will deal with misconduct complaints against parish members, as well as its own members;
  • determine whether individual complaints merit investigation and, where investigation shows evidence of misconduct, conduct a hearing and decide on any action to be taken where misconduct is shown to have occurred.

What must parish councils do?

Each parish council must:

  • promote and maintain high standards of conduct;
  • adopt a Code of Conduct covering general conduct and registration and disclosure of interests other than DPIs;
  • adopt standing orders to require members to withdrawal from meetings for DPIs and, possibly, other interests;
  • put a copy of its register of disclosable pecuniary interests on its website, if it has one.

So, what is missing?

a.  Parish representatives on standards committees: If the principal authority appoints a new standards committee, there is no requirement for parish council representatives, even though the committee will deal with parish members.

b.  Sanctions against parish members: In the absence of statutory sanctions, all the standards committee can do is recommend that the parish council takes action against the parish member. There is no requirement for the parish council or the parish member to pay any heed to the findings of the standards committee.

How can it be made to work?

First, try to persuade each parish council to adopt the same Code of Conduct, as the principal authority is faced with trying to enforce parish codes.

Secondly, decide how to enforce parish codes without any powers. One suggestion is that the principal authority might set up standards committee as a joint committee with the parish councils, and request each parish council to delegate its limited powers of sanction to the committee. Another suggestion is that the Act is so flawed that principal authorities might give up the attempt to deal with misconduct complaints against parish members and delegate this function to individual parish councils.