What next for Ethical Standards?
The government has confirmed that Standards for England is to be abolished, but is yet to reveal what regime will take its place. Graeme Creer and Claire Lefort look at the possibilities, and call on local authorities to press the government to transfer certain responsibilities to the Local Government Ombudsman.
The Coalition Government has announced that “the Standards Board regime” will be abolished, but what will this actually mean? Some believe that the whole member conduct system, including the Code of Conduct, local Standards Committees, and the regulator, Standards for England, will be scrapped. Others think that only Standards for England will see changes.
This is proving quite disruptive. Will Standards Committees, and the independent members who have put in so much time and effort, be disbanded, or will they have to deal with the serious and difficult cases which are currently investigated by an Ethical Standards Officer and reported to a Case Tribunal? What will be the Monitoring Officers’ role, and what resources will they need? And what is the message? Some members under investigation are now reluctant to take the process seriously, under the impression that it will somehow just go away.
In February 2009, the Conservative Party Control Shift discussion document promised to:
- abolish Standards for England
- make district auditors responsible for investigating financial impropriety
- leave any breach of existing criminal law to the police, the CPS and the courts
- let the civil law cover issues such as libel and slander by councillors
- leave the Local Government Ombudsman to investigate complaints of maladministration
- make all formal Ombudsman rulings legally binding, subject to an appeal to the Secretary of State
- extend the scope of section 80 of the Local Government Act 1972, which disbars councillors from office if they are convicted of some criminal offences, to cover more criminal convictions and councillors who are on the Sex Offenders Register.
This is very radical approach. The old system for regulating members’ conduct centred on a code in an appendix to a Government Circular, which contained some basic do’s and don’ts and a complicated formula for the declaration of interests. This was only advisory. In a maladministration complaint, the Ombudsman could find there had been a breach of the code, but the only sanction was the risk of being named and shamed. This was coupled with criminal offences for non-disclosure of pecuniary interests, and for corruption (now recast within the Bribery Act 2010), as well as councillor surcharge, which has since been abolished. Local authorities could establish voluntary Standards Committees to consider breaches of a locally determined code of conduct, but the only direct sanction was the withdrawal of facilities. And members could be expelled from their political group, or removed from cabinet or committees, following a process beyond the reach of local government law.
This mishmash was not fit for purpose and is unlikely to find favour with many. The rules were difficult to interpret and the penalties ether non-existent or draconian. Surcharge was a strange remedy based on the concept of causing the authority to be out of pocket. It did act powerfully on members’ minds, but it is unlikely to be revived.
Over one year on, it seems that thinking has moved on from the Control Shift approach. There is an expectation that the local regime will remain, and that only Standards for England will cease to exist. On 10 June 2010, Andrew Stunell, a junior minister, responded to Parliamentary questions. He confirmed that Standards for England will be abolished, and that the necessary legislation will be in the Localism Bill.
In response to a question about the rights of appeal if the local process goes wrong, he replied that a safety net is needed, and that the government is in discussion with local government colleagues about the most appropriate way of moving forward. He did not mention abolishing the Code of Conduct, Standards Committees or the local complaints system.
The draft speech of Bob Neill, the Parliamentary Under Secretary, to the Municipal Journal’s annual leadership conference states that the SfE will be abolished whilst ensuring that councillors will remain answerable to the electorate. The general concept of a Code of Conduct is apparently still thought appropriate, acceptable and relevant. It promotes public confidence and trust in elected members, who are still tarred unfairly with the MPs’ expenses scandal brush.
If Standards for England is abolished, what will be the result? The current system allows local authorities to deal with complex and serious cases. It may have enough specialist expertise to investigate these cases, provided there is no conflict of interest, or the Monitoring Officer may engage external specialists. If the likely penalty exceeds those available to the Standards Committee, then it can seek to refer the case to the First Tier Tribunal. But there are bound to be serious cases where it is too difficult for a Monitoring Officer to carry out or supervise an investigation, and some central guidance is needed, especially as changes are expected, to tidy up the “official capacity” conundrum following the Livingstone case.
It seems sensible for Standards for England’s functions of casework and guidance to transfer to the Local Government Ombudsman. Some Ombudsman investigations contain elements of member conduct. Before 2001, the Ombudsman often ruled on member behaviour. These functions could be handled by the Ombudsman again, referring the most serious cases to the Tribunal. This would require new legislation, but the current system could continue without too many changes, ensuring that local authorities are in control of their members’ conduct as far as possible, without unnecessary interference from a central regulator.
Local authorities should press for Standards for England’s essential casework to be moved to the Ombudsman. The practical, ethical and legal problems of handling high profile investigations involving senior members and officers, not to mention the cost, are too great to be left with individual authorities. There are some good ideas in the Proportionality Upgrade, and they should not be forgotten just because of their origin.
The one big change, though, which no one has yet put forward officially, would be to cut, or dilute, the link between parish councils and principal authorities. This would immediately slash the cost of the ethical standards industry and remove a lot of pointless aggravation, as well as dismantling the fiction that district councils are in some way responsible for the behaviour of parish councillors. A brave approach would simply take parish councillors out of the system, but some Town Councils are big organisations, and planning shenanigans can be important.
Perhaps all complaints against parish councillors should be considered initially by the parish council itself (minus the member in question), with the power to censure, request an apology, arrange training or withdraw facilities, on the basis that only serious breaches should be forwarded to the district council, with a right to request a review by the district council on the ground that the assessment has been handled properly, but not on the merits of the response?
Time will tell how the regime will be altered. Standards for England itself suggested, in its March 2009 Proportionality Upgrade, that some of the work of Standards Committees could be delegated to officers and Chairs to make the process more streamlined and to reduce the administrative burden. Any overhaul should be proportionate and recognise the need for a regime which is fair and transparent and deals with poor behaviour quickly and effectively. And, of course, until there is new legislation, the current system continues in force.
Graeme Creer is a partner and Claire Lefort is an associate in the local government team at law firm Weightmans LLP. They can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it.
