A question for leaders

Has the time come for changes to the Standards Regime in Local Government? asks Deborah Collins.

In 2001, a formal standards regime was introduced for local authorities in England. This was the government's response to recommendations of the Third Report of the Committee on Standards in Public Life, often known as the Nolan Report.

The Committee said that it had found local government to be far more constrained by rules governing conduct that any other part of the public sector it had examined. It noted that attempting to enforce good conduct through detailed rules could itself contribute to wrongdoing, and that, as a result, it was unsurprising that a lack of clarity over standards of conduct persisted in local government. It also stated that, despite some instances of corruption and impropriety, the vast majority of councillors and officers observed high standards of conduct. In the fundamental restructuring which followed, the intention was to achieve clarity about standards of conduct. Has this been achieved with the current system? And is the system a proportionate way of dealing with complaints against councillors?

First, a bit more history. The system that was introduced consisted of a Code of Conduct that contained rules on behaviour and rules on declaring "interests", so that decision-­making would be transparent. This was enforced primarily by the Standards Board (now Standards for England). In 2007, in response to a number of difficulties caused by the original code, the code was revamped. And in June 2008 the primary role in enforcement was handed over to the local authorities themselves. A new revision to the Code is expected by June 2010 to deal with the fall out from the court case about Ken Livingstone which focused on the distinction between private life and official capacity.

The 'here and now'

So have we ended up with something that meets the desire for clarity?

On one hand, the general obligations on how councillors should behave are fairly clear and straightforward. It is perhaps a little odd that there are also ten general principles of public life, based on the original seven principles of public life, which don't themselves create a statutory obligation (and perhaps unsurprisingly appear therefore to be largely ignored). The tricky question of when a councillor is acting in their official capacity is one that has caused significant thought for the courts and the government, and although we are getting towards an answer to the question, it is by no means clear that it will be either a satisfactory answer or one that is easy to understand.

The rules on interests, however, are both extremely detailed and highly legalistic. Paragraph 8 of the Code sets out nine broad categories of personal interests which have to be registered (some of which have their own sub-categories) together with a general additional test of when a personal interest might arise that doesn't have to be registered but does have to be declared, together with a definition of "relevant person" which is needed in order to interpret the categories. It then goes on to define when an interest becomes prejudicial, which raises additional complexities. And all of this sits alongside the common law rules on bias and predetermination which provide a different set of rules about how councillors take decisions.

These rules are hard to interpret even for those who are legally trained. Standards for England produces some excellent guidance which turns much of the statutory language into plain English, with helpful explanation. In addition, most authorities train most of their councillors in their obligations under the code. But even armed with all this help it is a very brave councillor who attempts to navigate the trickier areas of this without the aid of their monitoring officer. Ironically, much of the complexity of the 2007 Code results from the attempts to deal with the inflexibilities in the 2001 version.

The role of lawyers

The legal profession aren't blameless either. The decision to draft the Code as a statutory instrument forced the original document into legislative rather than plain English. The decision to focus on detailed rules rather than general principles has meant that creating flexibility has tended to be done through the route of creating exceptions to rules. Lawyers then pore over the wording to discover further problems which can only be resolved by further complexities of legal drafting. It makes one wish that, instead of reaching for the cold towel in order to deal with one of these questions, one could reach for a broad, principles based code written in plain English and intended to be applied with a purposive, common sense approach rather than as a legal manual. Or, along the lines of the Nolan Report, to reflect that attempting to enforce good conduct through detailed rules can itself contribute to wrongdoing, and that, as a result, it may be unsurprising that a lack of clarity over standards of conduct continues to persist in local government.

The lack of clarity might, however, be forgiven if one could see the link with higher ethical standards. Whereas the rules on prejudicial interests are clearly important to preserve the quality of decision-making, it is not clear. that the amount of time and effort that officers, whips and other councillors put into analysing the possible personal and non-prejudicial interests of every councillor in order for the first few minutes of every full council to be taken up by a stately set of declarations adds much to the ethical standards of the council.

A more serious charge on the lack of proportionality, however, relates to the system of complaints. Under the system since June 2008, these are heard by standards committees within the local authority. A committee of at least three members, including an independent member as a chair, must meet to decide whether or not to refer the complaint for investigation (the "assessment committee"). If the assessment committee considers that the complaint does not merit investigation, the complainant has a right of appeal to a review committee (a different three members sitting to hear this). If the complaint is referred, there will then be an investigation, followed by consideration and possibly a hearing in front of a hearing committee.

The cost equation

Standards for England has collated information from the annual returns from all authorities in its annual review. This shows that 2,863 complaints were received in the first year. Assessment committees decided to take no further action in 1,414 cases (53% of cases). Those "NFA" decisions were then appealed to review committees in approximately 40% of cases, with the original decision being upheld in 93% of cases.

This means that there were around 2000 assessment or review committee meetings held last year in England to consider a complaint that did not meet the investigation criteria. In addition, Standards for England's experience as the previous enforcement authority was that as they grew more experienced as an enforcer they gradually reduced the number of cases they investigated to a much lower proportion of those that were submitted. The pilots run in 2007 tended to show that local committees were more inclined to pass complaints through to investigation. When one considers that of the investigations completed in 2008/09 only 29% found a breach, it would appear that if anything not enough complaints are weeded out at the initial assessment stage. It does not seem unreasonable to assume therefore that there are 2000 largely wasted meetings simply to decide that complaints do not even warrant investigation. The cost of those meetings will vary across authorities, but working on a rough basis of £1500 per meeting, that constitutes a cost of £3m that, with a different regime, could largely be avoided.

The wider implications

This is not, however, only a question of financial cost. The fact that the assessment and review committees are a group of peers meeting formally to make a decision, even though that decision is only whether or not to investigate a complaint, gives the meeting understandable weight in many councillors' eyes. It feels to many as if a judgment has been passed on them, and, worse, a Judgment by a secret committee before which they are not entitled to appear and to which they are not entitled to give evidence. However swift an authority is in dealing with the complaint, summoning committees takes time, and the stress caused to the councillor complained of in the intervening period can be significant. Given the difficulties in attracting people to be councillors and retaining them, this type of disincentive is perhaps not helpful.

Having gone through the initial committee, investigation and hearing, however, one would expect that there are serious breaches being dealt with that justify the cost and bureaucracy of the system. But from the range of sanctions that are available, in the first year only 70 cases led to a sanction that was not an apology. Although some of the initial 2,863 complaints would not have been finally heard by the year end, this still remains a tiny percentage of serious cases.

Looking ahead

The question has to be asked as to whether this extensive system is required to deal with the small number of serious problems.

Fortunately, that question is currently being asked. Standards for England recently published the results of its review into the operation of the standards regime, with particular reference to proportionality.

Putting any conclusions into action will be the job of whichever government is elected this year. It will be interesting to see how this leadership challenge plays out for local government.

Deborah Collins is Strategic Director of Communities at the London Borough of Southwark.

This article first appeared in ACSeS' Firing Up the Passion for Leadership publication. To obtain a copy (for a nominal £10 to cover production costs) contact the Association of Council Secretaries and Solicitors at 64, Smithbrook Kilns, Cranleigh, Surrey, GU6 8JJ; telephone: 01483 277888; e-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.