Setback for councils over recruitment of 'independent persons' required by Localism Act

January 19, 2012

The ability of councils to recruit candidates to fill the role of 'independent persons' for the new standards regime created by the Localism Act 2011 has been dealt a blow this week, after a leading QC's opinion – obtained by the Association of Council Secretaries and Solicitors (ACSeS) – concluded that former independent members of an authority's standards committee under the current regime cannot take up the position.

Under Section 28(8) of the Act, a proposed independent person cannot be appointed if he or she has been a co-opted member of the council within the five years preceding their prospective appointment. Under section 27(4) a 'co-opted member' in relation to a relevant authority means a person who is not a member of the authority but who is a member of any committee or sub-committee of the authority – in this case the Local Government Act 2000 standards committee.

According to the opinion, delivered by Clive Sheldon QC of 11KBW, “the 'better reading of the legislation" is that former independent members "are not permitted to serve as independent persons within a period of five years from their previous service".

This is because "on a literal reading of the legislation" the independent member of the standards committee was a ‘co-opted member’ of the authority. Under section 28(8) of the 2011 Act a person is not ‘independent’ if they are or have been within the five years preceding their prospective appointment a co-opted member.

ACSeS also sought an opinion on what measures local authorities could lawfully take against members when the existing sanctions are removed later this year. Although the Localism Act creates a new criminal offence for members that fail to declare their personal interests, other breaches of a council's code of conduct have no specific sanctions under the new regime.

In counsel's opinion, the following would be lawfully available, subject of course to the particular facts and circumstances and lawful and proportionate manner of application:

A formal letter to the councillor found to have breached the code;
Formal censure by motion;
Removal by the authority of the member from committee(s) subject to statutory and constitutional requirements;
Press release/other appropriate publicity;

ACSeS President Philip McCourt said: “Counsel has helpfully been able to clarify two important issues for the benefit of authorities across the land as they start to put in place new arrangements for standards.

“These issues are complex and vexing and, although different shades of view exist in relation to them, it is clearly important for authorities to have an opinion from leading counsel following which they can frame the necessary new systems and procedures."

McCourt added: "Whilst the Government’s intention to leave the question of sanctions open to the lawful discretion of authorities has been made very clear, much less so has been whether Parliament specifically intended to prohibit former independent members of standards committees from becoming independent persons under the new regime.

“Certainly the statutory drafting has not enhanced the clarity of the process and (on the basis of Counsel’s view) those authorities that had hoped to be able to draw on the reservoir of former independent member talent when recruiting independent persons are now likely to be disappointed. Nevertheless, the clarity afforded by Mr. Sheldon’s view is welcome since it offers authorities some direction when framing their new arrangements.”

ACSeS is currently in the process of framing potential models for implementing standards arrangements. Under the Act, councils and other relevant authorities will be required to adopt a code of conduct based on the Nolan Principles: Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership.

PDF_logo A PDF copy of the legal opinion is available by clicking here: ACSeSLegalOpinion