Independent Persons under the Localism Act 2011

December 8, 2011

Nicholas_Dobson_v3_blog The question is, can a former independent standards committee member under the Local Government Act 2000 be an independent person under the Localism Act 2011?

If we were in a Christmas pantomime the approach would be straightforward. A lead character, Buttons say, would step forward and ask the audience. And the matter would be conclusively determined by whoever yelled "yes" or "no" most loudly.

But, despite occasional evidence to the contrary, we are not in a pantomime but are required to inhabit legislative and organisational reality. So a somewhat more serious approach is required. That is why senior local government lawyers have been discussing this issue over the past week or so and why ACSeS Policy Officer, Tony Kilner, raised it in his bulletin for the week ending Friday 2 December 2011.

So what is this all about? I'm afraid it's a long and winding road, so bear with me while I set out my personal views on the issue.

Independent Persons

These are a creature of section 28 of the 2011 Act. This requires a relevant authority (section 27(6)) when instituting arrangements under which conduct allegations can be investigated and determined (section 28(6)) to make provision for the appointment by the authority of at least one independent person (section 28(7)). The authority must seek the views of the independent person and take them into account before making a decision on an allegation which it has decided to investigate (section 28(7)). The views of the independent person may also be sought in other circumstances by the authority and also (amongst others) by a member or co-opted member of the authority if that person's behaviour is the subject of an allegation (section 28(7)).

So what is an independent person for these purposes? Well we might not know what s/he is, but we do (courtesy of section 28(8)(a)) know what s/he is not. A person is not independent for these purposes if they are a "member, co-opted member or officer of the authority" (or relevant parish council) or a relative or close friend of such person. But section 28(8)(b) also casts a retrospective shadow. For an independent person may not be appointed "if at any time during the 5 years ending with the appointment" the person was a member, co-opted member or officer of the authority (or relevant parish council). As to the appointment process for independent persons, these (in section 28(8)(c)) reflect those in Regulation 5 of the Standards Committee (England) Regulations 2008 (S.I. 2008 No. 1085).

Independent Members

So where does this leave former independent members of standards committees? Aren't they just the sort of people that authorities (and the public they serve) would want as independent persons for these purposes? However, some at first glance of section 28(8) (which prevents present and former authority members and co-opted members from occupying this role), have perceived an apparent problem. But is there one in reality?

To consider this, we need to look at what independent members and independent persons are. And we will also need to ask (as per below) what co-opted members are for these purposes.

There is no specific definition of "independent member" in the Local Government Act 2000. But there is a requirement on relevant authorities (section 49(6)) to appoint to a standards committee "at least one person who is not a member, or an officer, of that or any other relevant authority" who must also chair the standards committee (section 53(4)(b)). Further enlightenment can be found in the 2008 Regulations which were made under (amongst other provisions) section 53(6) of the 2000 Act.

For Regulation 2 tells us what an independent member is for these purposes. This is "a person appointed to a standards committee, or sub-committee of the standards committee, of an authority, who is not a member, or an officer, of that or any other relevant authority". And (by Regulation 5) such a person may not be appointed as an independent member if they have been a member or officer of the authority within the preceding five years or are a relative or close friend of such a member or officer. Furthermore, (per Regulation 5(6)), anyone appointed as an independent member of a standards committee who becomes a member or officer of an authority or a relative of such person "shall cease to be a member of the standards committee". These provisions are similar in effect to those concerning a 2011 Act independent person.

So, on a closer look, if an independent member is not in fact a member, co-opted member or an officer of the authority in question or any other (and is not a relative or close friend of one) and has not been so in the relevant preceding five years, why should this person not also become an independent person under the Localism Act, all other things being equal? For (unlike substantive council members) an independent member will not have been a member of the authority as such but only of its standards committee.

Co-opted Member under Part III of the Local Government Act 2000

Cue section 49(7) of the 2000 Act which in this context defines the term "co-opted member" unhelpfully broadly. Under this provision, and in relation to a relevant authority, a co-opted member for the purposes of Part III of the 2000 Act (conduct of members) is a person who is not a member of the authority but who:

(a) is a member of any committee or sub-committee of the authority, or
(b) is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority,

and who is entitled to vote on any question which falls to be decided at any meeting of that committee or sub-committee.

So if, as a matter of law, "any committee or sub-committee of the authority" includes a standards committee, then, textually at least, an independent member (or someone who has been so within the relevant preceding five years) is also a co-opted member (subject to voting entitlement) and is thereby prevented from becoming an independent person under the 2011 Act.

Co-opted members for other purposes

But what is a co-opted member for purposes other than conduct? For many years principal authorities have been able to appoint those who were not otherwise council members to committees in the light of particular experience or expertise. So whilst the Local Government Act 1972 does not to my knowledge use the term "co-opted member" as such, it nevertheless makes provision for the appointment of members who are generally known as "co-opted".

For example, section 102(3) of the 1972 Act enables a local authority committee (other than one for regulating and controlling the authority's finance) to "include persons who are not members of the appointing authority or authorities or, in the case of a sub-committee, the authority or authorities of whom they are a sub-committee".

And section 23 of and Schedule 1 to (paragraph 12) the 2000 Act makes provision for co-opted members of overview and scrutiny committees. However, it is clear from paragraph 12 of Schedule 1 that co-opted members for these purposes will not normally be able to vote and can only do so if so permitted in accordance with a scheme made by the authority. The above is how I believe the term "co-opted member" has generally been understood.

The story so far

So, where have we got to so far in this tortuous legislative saga? We know that:

(a) An independent member for the purposes of Part III of the 2000 Act is a person appointed to a standards committee or one of its sub-committees but who is not a member or officer of that or of any other relevant authority. And under the 2008 Regulations a person cannot be an independent member if they have been an authority member or officer within the preceding five years or are a relative or close friend of a member or officer of the authority.

(b) An independent person for the purposes of the 2011 Act is someone who is not (or who has not been in the previous relevant five years) a member, co-opted member or officer of the authority.

(c) A co-opted member for the purposes of Part III of the 2000 Act is a person who is not an authority member but who is (amongst other things) a member of any committee or sub-committee of the authority and who is entitled to vote on any question falling to be decided at any meeting of that committee or sub-committee (section 49(7)).

(d) A co-opted member for the purposes of Part 1 of the Localism Act (per section 27(4) has an identical definition to that in section 49(7) of the 2000 Act.

(e) A co-opted principal authority member for other purposes is (under the 1972 Act) a person appointed to a committee or sub-committee who is not a member of the appointing authority or authorities or, in the case of a sub-committee, the relevant authority or authorities (section 102(3) Local Government Act 1972 and, in respect of overview and scrutiny committees in executive arrangements under Part 2 of the 2000 Act, see section 23 and Schedule 12).

On this textual basis, and on the footing that a standards committee falls with section 49(7) of the 2000 Act, a former independent member (assuming s/he was entitled to vote) was probably also a co-opted member for the purposes of Part III of the 2000 Act (per section 49(7)) even though Parliament may not have intended to include independent members with substantive members and "traditional" co-opted members.

So did Parliament intend independent members to be co-opted members under the 2000 Act?

Who knows? However, some personal thoughts concerning the purpose of these terms are offered.

The purpose of an independent member is surely to provide some manifest and perceived objectivity in a standards forum likely to be perceived as subject to political forces and allegiances. Conversely, a co-opted member, like a substantive functioning member, is part of the operational fabric of the authority and there is a consequent logic in including such co-opted members within the scope of the 2000 Act conduct provisions. So (per section 52(1) of the 2000 Act) co-opted members, along with substantive members, are required to undertake in writing to the authority that they will observe the authority's code of conduct for the time being. Independent members are not specifically mentioned here. And whilst this may be because that specific term does not exist within the 2000 Act, it does as indicated exist within the 2008 Regulations which were made under authority conferred by the 2000 Act. Similarly, whilst section 54(1) of the 2000 Act specifies the general functions of a standards committee as: (a) promoting and maintaining high standards of conduct by the members and co-opted members of the authority, and (b) assisting members and co-opted members of the authority to observe the authority's code of conduct, there is again no specific mention of independent members.

There is also a clear distinction in the 2011 Act between a co-opted member and an independent person. For by section 27(4) of the 2011 Act a co-opted member of a relevant authority is someone who is not a member of the authority but who is (amongst other things) a member of any of the authority's committees or sub-committees and who is entitled to vote on any question that falls to be decided at any meeting of that committee or sub-committee. This is identical to the co-opted member definition in section 49(7) of the 2000 Act. But equally under the 2011 Act a person cannot be an independent person if they are or have been (amongst other things) a co-opted member.

However, as indicated, if a literal interpretation is taken of section 49(7) of the 2000 Act (and all other things being equal) a person could be both an independent member and a co-opted member under the 2000 Act for they will not be a member of the authority but will be a member of a committee (i.e. the standards committee if that is a committee for these purposes). Parliament does draw a distinction between membership of the authority and that of a particular committee (see, for example, section 102(3) of the 1972 Act mentioned above).

So given that the definition of co-opted member in the 2011 Act does not include an independent person, does this help with unravelling the conundrum of whether section 49(7) of the 2000 Act includes independent persons (given that the 2011 Act definition of co-opted member is identical to that in section 49(7))?

Arguably the 2011 Act approach is consistent with the functional distinction suggested above between the objective role of the independent person and the functional role of the "traditional" co-opted member within his or her brief.

But whilst there is no positive definition of an "independent person" in the 2011 Act (only a description of what one is not), we do nevertheless as indicated have a definition of "independent member" in the 2008 Regulations. The distinction between a 2000 Act independent member and a 2000 Act co-opted member is that whilst the independent member is appointed to the standards committee or one of its sub-committees, a co-opted member "is a member of any committee" (emphasis added).

Given that, as indicated, there are striking similarities (when assembled) between the definitions of independent members, independent persons and co-opted members under the standards provisions of both the 2000 and 2011 Acts (although it is accepted that the role of independent persons is somewhat different since they will not be a member or chair of a statutory standards committee), the approach in the 2011 Act to indicate that the description of independent person prevents such a person from being an co-opted member appears to me instructive in interpreting the provisions of the 2000 Act.

Purposive interpretation of Section 49(7) of the Local Government Act 2000

It therefore seems to me that, despite its specific wording ("member of any committee. . .) the better interpretation of section 49(7) is that this is not intended to apply to standards committees (which were instituted for specific statutory purposes (see sections 53 and 54) but it is aimed at substantive authority committees and sub-committees. If section 49(7) is interpreted in this way:

It would not include standards committees.
An independent member could not be regarded as being a co-opted member.
The mischief of Part III would be preserved in that those members who are part of the substantive functional fabric of the authority would be subject to the Code of Conduct.
An independent member (whose only role is to chair and participate in the Standards Committee on an objective basis) would not be specifically subject to the Code but could be made so as a condition of his or her appointment. For the terms of his or her appointment are a matter for the appointing authority (see Regulation 5(5) of the 2008 Regulations and relevant incidental powers).
An independent standards committee member under the 2000 Act would not be automatically prevented from being an independent person under the 2011 Act because they would not have been a member of the authority or a co-opted member.

Conclusion

As mentioned at the outset, the above is an unfortunately long and winding interpretational road. However, whilst it seems to me to be consistent with what I take to be the mischief of the conduct provisions in both the 2000 and 2011 Acts, and whilst it would achieve the entirely reasonable objective of enabling those former independent members who have the specific experience and expertise needed to undertake the somewhat different role of independent person under the 2011 Act to do so, there does remain a difficulty. This is the wording of section 49(7) of the 2000 Act.

ACSeS is considering this issue and it may be that Government lawyers may also wish to take the matter on board. For it is difficult to imagine that Parliament would specifically set out to create a functional impediment to a new legislative measure by debarring those best suited to discharging a new statutory role. And particularly when the intention does seem to have been so far as possible to carry across into the 2011 Act relevant conceptual provisions from the 2000 Act. As the Mock Turtle in Alice in Wonderland might observe in these circumstances, such would be "uncommon nonsense".

© Nicholas Dobson

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for ACSeS. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it.. Twitter: @nicholasdobson.

The views offered in this article are personal and do not constitute professional legal advice. Authorities and others should therefore seek their own legal advice before making any decisions on the issues considered within it.