ACSeS responds to consultation on revised Code of Conduct for Councillors
The Associaiton are broadly supportive of the proposed changes in the Draft but have raised specific issues where clarification or further improvment is required. these are detailed in the letter below.
8 March 2007
William Tandoh
Local Democracy Directorate
Department for Communities & Local Government
Dear Mr Tandoh
CONSULTATION ON REVISED CODE OF CONDUCT FOR MEMBERS
I write as President of the Association of Council Secretaries & Solicitors (ACSeS), in respect of the above mentioned Consultation Paper, which was issued in January 2007.
As you know, our Association represents Monitoring Officers, Chief Legal Officers (and Deputies) of local authorities in England and Wales and we have already worked collaboratively with you and the Standards Board for England, to ensure, from a practitioner's perspective, that the Revised Code is fit for purpose. Mirza Ahmad, Chief Legal Officer at Birmingham City Council, has led on ACSeS' response and if he or I can be of any further assistance in terms of these (or any comments from other local authorities), please do not hesitate to contact us. There has been extensive involvement by our membership in creating this response and we have held conferences in London and Leeds where the draft revised code has been discussed.
You will appreciate that Association members are the officers within each principal council to whom elected and appointed Members turn for advice on the application of the Code of Conduct and who have responsibilities to enable compliance with the Code through training, support and, ultimately, local enforcement. The Association would therefore be grateful if you and colleagues would take close account of the following response:-
1. The Revised Code:-
· Seeks to make the obligation to promote equality a matter of Member conduct despite the outcome of a recent case on the current code; we welcome that intention and are broadly comfortable with the provision:
· Applies an additional limitation to the obligation not to disclose confidential information (when reasonable and in the public interests, in good faith and not in breach of the reasonable requirements of the local authority); this will enable Councils to ensure that the Freedom of Information legislation is aligned to their information management practices; again, this is a revision that we are comfortable with:
· Modifies the well-being personal interest to relate only to the Ward (where applicable) rather than the whole of the authority's area; we consider that this will make the application of declaration of interests that much clearer and easier for Members and will avoid the proliferation of declarations of immaterial personal interests at meetings:
· Limits the obligation to disclose a personal interest of a family member, friend or person having a close personal or business association, to those that a Member is aware of, or ought reasonably to be aware of; we believe that this is an improvement on the current Code, but the definition of the terms should be contained in the Revised Code so as to ease comprehension for all and to contain all necessary references in one document for busy Councillors, instead of having to refer to another document that might not be readily available:
· Makes provision for sensitive interests to be excluded from the public Register of Members Interests in very limited circumstances and for the sensitive information not to be disclosed when other personal interests need to be disclosed; this is a sensible revision and to be welcomed, provided that the Monitoring Officer has agreed to such information not being contained in the Register. To do so otherwise, would give unlimited powers to Members to withhold relevant information without any necessary safeguards in the public interest but it would be appropriate for a Member whose request for sensitive information to be un-published is not accepted by a Monitoring Officer to have a right of review of that decision by the relevant Standards Committee;
· Creates a new category of "public service interests" as to membership of other relevant authority, public authority or body the Member is appointed to by the Authority; this is a welcome improvement in that the public service interest will not be a prejudicial interest, except in the limited circumstances of relating to the financial affairs of the body or determining of, for example, any approval, variation, consent, grant, loan, mortgage, licence, permission or registration;
· Removes the obligation to report allegations of failure to comply with the Code; this “Whistleblowing” provision, has led to many "tit for tat" inconsequential referrals between Members and its removal is welcome in order to reduce the number of unnecessary complaints; and
· Clarifies the position on interests at Overview & Scrutiny Committees and limits the definition of prejudicial interests to the circumstances of membership of the Executive or the Committee at the time of the decision and presence of the Member when the decision was made; again, this is a helpful position and should not cause difficulties in practice.
2. In addition to the above, the following revisions to the Code of Conduct are welcome:-
a) Members must not bully any person;
b) Members must not intimidate a person involved in proceedings under the Code;
c) extends criminal offence example of disrepute to offences committed before taking office and the conviction taking place after coming to office;
d) extends the improper influence provisions to include attempting to do the same;
e) extends the meaning of political purposes in the use of the authority's resources and facilities provision to specifically include party political purposes;
f) extends the provision on the use of authority's resources and facilities to include having regard to guidance on the proper exercise of the power to issue publicity; and
g) imposes a requirement to disclose and publicise the receipt of a gift or hospitality as a personal interest.
3. Having said that, we would comment that the bullying provision should also include harassment and victimisation. Furthermore, the definition of bullying should be able to capture one-off acts or inactions and not require a series of actions or inactions. In addition, the convictions requirement should be extended to cautions that may be registered against any Member. We would suggest that there are other judicial findings against individuals which could be given as examples of personal behaviour which could be examples of conduct which brings the office of councillor into disrepute; for instance, that an otherwise proper decision of a Council has been found to be unlawful because of bias or pre-determination on the part of an individual Member. It is not appropriate for an officer organisation to express any view on the reasonableness of the figure of £25.00 as the appropriate level of value for gifts and hospitality over which a personal interest will arise but we would suggest that there needs to be consistency of treatment for all elected and appointed political representatives. Any figure should, however, be index-linked or reviewed every two years to ensure it is up-to-date. We do wonder whether it is practical to legislate that such gifts create obligations of declaration for as long as 5 years – we suggest that expecting councillors to recollect the previous 2 years is sufficiently rigorous.
4. At the risk of being accused of having been engaged in “drafting by Association” we have used the professional skills of our membership to produce a redraft of the Revised Code of Conduct for Members that we consider to be necessary to provide greater clarity and certainty to the Revised Code. Attached is a document which contains "tracked" changes to the published draft which we hope will assist.
5. Broadly speaking, the Association is comfortable with the Revised Code of Conduct changes, which are welcome. There are, however, matters of detail, as indicated in the "tracked" changes, that do need to be spelt out to the Government from a practitioner's perspective. We are, for example, deeply concerned to note that the Government's proposed local filter arrangements envisage all written complaints being considered first by the Standards Committee (or a sub-committee of it). Operationally, this will create a need for more meetings of the Standards Committee and, as most deal with matters in the public agenda instead of the private agenda, there is a real risk that alleged complaints are "aired" in the public meetings in the presence of the press and the public, even before the Elected member has had an opportunity to comment on the same. This could lead to a "trial by media" and, as such, it will not protect or safeguard the human rights of the Elected Member.
6. We believe the "initial sieve" must be by the Monitoring Officer, in consultation with the Chair of the Standards Committee, so that frivolous or vexatious complaints are dealt with appropriately. Our "tracked" changes are made on the assumption that the Government is intent on ignoring these practical difficulties for local government and, as such, the "tracked" changes seek to make the best of the Government's position for Members / Officers / citizens.
7. The draft Regulations involve the production of a single model code (rather than the 4 current models) and, as such, this is a welcome development. The Revised Code also modifies the effect of the "Richardson case" in order to allow a Member to make certain representations despite having a prejudicial interest. This would allow a Member to attend a meeting for the purpose of making representations, asking questions or giving evidence, provided, we suggest, that the relevant Standards Committee (rather than the meeting itself) has agreed to a general dispensation that it is not a breach of Code to exercise any statutory or locally decided public access rights to the decision-making process and subject to the Member then withdrawing from the room for the decision-making process on that item of business, as the Member should be prevented from taking any part in the decision-making of the relevant body. The Member should, however, be allowed back into the room to hear the decision of the Committee on that item of business, with reasons. To do so otherwise, would be perverse in the extreme and would mean that the public knew about the decision with reasons well before the Member was formally notified by the Committee Clerk. That, we strongly suggest, is not good governance.
8. In terms of the Local Authority Code of Practice, this is currently issued by a Government Department and in our view, there are relevant provisions which should be applicable regardless of the implementation of any Revised Code of Conduct for Members. However, the opportunity should be taken for local government – and in particular in this context the Local Government Association or any successor body – to issue a national code as opposed to the same being issued by a Government Department.
9. In terms of major omissions from the Revised Code of Conduct, the Revised Code does not, currently, include a preface to the 10 General Principles of Public Life applicable by Statutory Instrument for local authorities. We believe local authorities should have the flexibility to incorporate the same as a pre-amble to the Revised Code (or as an Appendix to it), but that it should not form part of the Code in terms of actionable breaches under the Code.
10. One of the major criticisms of the current Code is that it is not all embracing or comprehensive; in that, it does not cover rules of natural justice, pre-determination, bias or pre-disposition and pre-determination of decision-making by Members. The opportunity should, therefore, be taken to ensure that the Revised Code incorporates some reference (as indicated in the attached "tracked" changes document) so that Members and Monitoring Officers are clear that the Revised Code, and any guidance that may be given in relation to the same, emanates from the Revised Code.
11. In terms of other matters in relation to the Ethical Framework for local government, it is disappointing to note that the Code of Conduct for Officers has still not emerged; that in relation to the “relocalisation” of complaint handling the investigatory powers of Monitoring Officers are not yet to be made equivalent to those an Ethical Standards Officer nor that those staff who will need to be appointed as Deputy Monitoring Officers for the purpose of investigations and the proper separation of roles in the local enforcement processes do not yet have the protections of their employment which those roles will require to ensure disinterested work in this regard.
12. For the sake of completeness, I also attach the "answers" to your Consultation questions. In respect of the "tracked" changes or the comments contained in this letter, we hope these are self-explanatory, but feel free to contact me if you are unsure about any of our comments.
May I also take this opportunity to thank the Department for the opportunities which have been given to the Association to help it address this challenging area and to hope that the Department has found it helpful to use the Association’s expertise and experience in this way. I can assure you that any future requests for help from the Department or the wider central government will be constructively addressed.
Yours sincerely,
Meic Sullivan -Gould
Borough Solicitor and Monitoring Officer
London Borough of Hackney
Hackney Town Hall
E8 1EA
Tel 020 8356 6184