Standards - rules of the local authority road

February 6, 2013

Nicholas Dobson looks at the purpose of the standards regime and the degree to which 'standards lite' is adequate.

"Calm down, dears," the late Michael Winner might have advised Local Government Minister, Brandon Lewis and his predecessor, Bob Neill, who seem to have become quite exercised about the alleged gold-plating of local authority standards arrangements. For former minister Neill noted in the Municipal Journal that if he had rattled a few cages with his recent Westminster Hall debate on the new standards regime, then "Good. That was the idea." Because "under the old regime, the servant had become the master" with the creation of "a small-scale industry that consumed time and money disproportionately to the desired – and desirable – objective".

Shortly afterwards landed a letter from DCLG Parliamentary Under Secretary of State, Brandon Lewis MP, to all local authority leaders highlighting that "we are keen to avoid unnecessary and bureaucratic gold-plating of the new regime" and effectively offering legal advice on the issue of council tax disclosable pecuniary interest exemptions, whilst at the same time indicating that DCLG does not issue such advice. As Alice might have observed, "Curiouser and curiouser!"

Standards Lite

Ministers recommend the super-lite ‘illustrative’ code text issued on 11 April 2012 which runs to less than a page and a half of A4. In an unfallen world this would undoubtedly be adequate. But in the decidedly post-primeval world of local government (where power politics, ambition and personal interests can sometimes muddy even the clearest waters) a little more flesh on the principle bones is likely to be needed so that all can understand just what is expected of those elected to public trust.

And the Committee on Standards in Public Life (CSPL) seems to take a similar view. So whilst in its January 2013 report, Standards Matter, CSPL welcomed "the intention behind the Localism Act 2011 to encourage a greater sense of local responsibility for standards and to address some of the more vexatious and disproportionate aspects of the local government standards regime", equally: "The new, slimmed down arrangements have yet to prove themselves sufficient for their purpose. We have considerable doubt that they will succeed in doing so and intend to monitor the situation closely."

And although Bob Neill MP indicated in his MJ article that "choices at the ballot box are the ultimate way to hold people to account", CSPL saw things differently, asserting that: "We do not believe that the theoretical sanction of the ballot box is an adequate deterrent to inappropriate behaviour by elected members within a term of office."

The whole point of localism though is subsidiarity. In other words local decisions taken so far as possible at local level. And it is for local members to decide what type of code they want. Many members do appreciate the public confidence danger in having too loose a code, particularly when public trust in politicians at all levels is currently at best conditional.

What are standards for?

However, sound corporate governance (of which local standards is merely a part) is all about effective accountability and stakeholder confidence that the organisation in question is being run effectively and with integrity. In the case of local government the stakeholder is the public for which authorities have been instituted. So leaving aside for a moment the radio noise around the Westminster debate, it is useful to cut to the chase and focus on just what the standards regime is for. In my view, this is essentially so that:

Local authority members behave and are seen to behave as a reasonable member of the public would reasonably expect; and that
Members’ decisions or participation in decisions are and are seen to be actuated only by public interest considerations.

In this context section 27(1) of the Localism Act requires relevant authorities to "promote and maintain high standards of conduct by members and co-opted" authority members. And in discharging this duty authorities must adopt a code dealing with the conduct expected of their members acting in that capacity. This must be consistent with the principles of public life promulgated by CSPL. These have recently been updated with revised explanatory narrative.

Nevertheless, because (as the poet Robert Burns indicated) we can often have difficulty in seeing ourselves as others see us, many authorities have taken the view that super-lite conduct codes without amplification or unpacking are unlikely to be, as CSPL put it, "sufficient for their purpose". Clearly, unnecessary bureaucracy of process or (as ministers would have it) ‘gold-plating’ is to be avoided. But if local arrangements are to promote local confidence in local democracy then these do need to be and be seen to be effective. And CPSL expressed two particular concerns:

The only sanctions now available, apart from through the use of party discipline, are censure or criminal prosecution for deliberately withholding or misrepresenting a financial interest. We do not think these are sufficient.
Under the previous arrangements allegations about poor behaviour were determined by standards committees independently chaired by individuals who were not themselves members of the local authority. Under the new arrangements every local authority must appoint at least one independent person whose views it will seek, and take into account, before making its decision on an allegation that it has decided to investigate. We doubt that this will be sufficient to provide assurance that justice is being done and, equally important, that it is seen to be done.

Consistently with localism, it is clearly for authorities to ensure that their arrangements are sufficiently robust and effective to fulfil their statutory requirement of promoting and maintaining high standards of member conduct. And no doubt they will wish to pay particular heed to the deliberations of CSPL as the body charged with "promoting high standards of behaviour in the public sphere through the Seven Principles of Public Life".

It is useful for members and advisers to consider the whole purpose of the regime when considering difficult or borderline issues, for example whether or not on a forensic analysis a particular member may have a disclosable pecuniary interest. It is best to avoid any conduct which may give the impression that the member’s motive is anything but to promote the public interest, even if the conduct may be justifiable on close legal analysis.

But whilst section 31(4) of the Localism Act 2011 prevents a member aware of having a disclosable personal interest from participating in discussion or voting on a relevant matter at a meeting, in my view this would not preclude a member from making representations outside the formal decision process in the same way as a member of the public. Nevertheless, it should be very clear that a councillor making such representations is manifestly outwith the formal deliberation and decision process and the member in question should absent him or her self immediately after making the representation(s) and before any determination of the issue in question.

Highway Code

In my experience, despite ministerial fears, monitoring officers have no "misplaced belief that they and not members should be in the driving seat on standards". They are merely trying under difficult circumstances to hold the ring for sound corporate governance amidst a sometimes vague or imperfect legislative infrastructure. However, whilst Bob Neill may well be right in observing that "the most important thing is the right mindset, not the structures and processes which are there to serve it", it is equally true that one person’s right mindset can be another’s guilty conscience. So there does need at least to be a sufficiently effective local highway code so that members and the public they serve them are all crystal clear about the rules of the local authority road.

Dr Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law. He is also Communications Officer for the Association of Council Secretaries and Solicitors.