Rules of the Local Authority Road

Bob Dylan once pointed out that, though the rules of the road may have been lodged, "it’s only peoples’ games . . . you got to dodge". But as things currently stand on local authority member conduct, the relevant rules may not even need to be lodged.

For as the Localism Bill journeys through Parliament, the likely outturn position on standards remains unclear. On the one hand the October 2011 version of the Bill proposes that authorities must promote and maintain high standards of member conduct. But on the other (whilst there are now some extensive provisions concerning ‘disclosable pecuniary interests’), it seems authorities will be under no obligation to adopt a code.

True, the Bill is not yet finalised and it may be that a compromise will emerge with, for example, authorities being obliged to have a code but free to decide on its contents i.e. no nationally prescribed code. But the situation remains uncertain with various strongly held views both ways.

My personal view is that councillors, local government and the public interest will not be well served if the Bill fails to include at least a bare minimum obligation for authorities to put in place a code of conduct based on the principles of public life, preferably accompanied by some basic and proportionate supporting infrastructure.

For the purpose of a code of conduct is not of course to subject the majority of hard-working and dedicated council members to a pettifogging and oppressive bureaucracy. The essential purpose of a code of conduct is to assist members to behave in the way the public they serve would reasonably expect and to set a framework to ensure that the decisions in which members take part are (and are seen to be) actuated only by public service considerations and untainted by any or any reasonable perception of private interest. In other words a sort of ‘highway code’ to enable members to drive safely through the complex and congested road network of local authority and public life.

A code of conduct for local government is of course nothing new. It was proposed originally in 1974 by the Prime Minister’s Committee on Local Government Rules of Conduct (chaired by Lord Redcliffe-Maud). This had been set up following the Poulson corruption scandal and a draft code agreed by the then local authority associations was issued as a joint departmental circular in 1975.

Following this, the Widdicombe Committee (concluded in 1986) recommended clarifying and updating the code which in its view had served a valuable purpose in encouraging proper conduct by councillors. The previous National Code of Local Government Conduct (issued under section 31 of the Local Government and Housing Act 1989) was the outcome and remained in place until repealed by the Local Government Act 2000 which instituted the current (now moribund) conduct regime.

Codes of conduct are a common feature of professional and public life. They exist to safeguard the public interest in circumstances where certain powers and/or privileges are conferred on one group of people to be exercised in the general public interest. Examples include the Ministerial Code (recently celebratedly breached by a former senior government minister), the Code of Conduct for Members of Parliament, the Solicitors’ Code of Conduct, the Code of Conduct for Barristers, the General Medical Council Code of Conduct, etc., etc.

Whilst the October 2011 version of the Localism Bill does enable relevant authorities to "adopt a code dealing with the conduct. . .expected of members. . . .acting in that capacity", apart from the provisions on interests, the proposed new conduct regime is substantially permissive. And ‘disclosable pecuniary interests’ (proposed per clause 30(3) of the Localism Bill) would cover a very narrow class and would not encompass associations and friendships beyond spouses or civil or other partners.

To help any authorities wishing to put in place a code when the final shape of the new standards regime is known, ACSeS members and others in London local authorities are working on a draft Code of Conduct. In addition, on 13 October 2011, former ACSeS President, Meic Sullivan-Gould, made a helpful contribution to the discussion by blogging a suggested short-form Code here on Local Government Lawyer.

The current Local Government Act 2000 Code can certainly be criticised as being too off-puttingly legalistic for those governed by it. That is probably a function of its being part of what was initially framed as a prescriptive, extensive and legalistic regime. The danger is that such a code is seen as both impenetrable and oppressive.

In my view it is therefore important that members can readily understand the nature and purpose of any Code which should (so far as possible) be in non-legalistic language. It should also not be forbiddingly long. Meic’s contribution is certainly welcome in this regard and ACSeS London colleagues and others are also to be praised for taking on this difficult task in relation to a conduct regime the future of which is far from settled. My own short draft set of ground rules (either self-standing or to accompany a more formal code) is below.

Localism – essentially local self-determination so far as possible and practicable – is an admirable concept and the essentially permissive nature of the currently proposed conduct regime is undoubtedly a function of this. However, equally, the application of localism needs to be balanced where necessary against the wider public interest. A requirement for authorities to have a Code of Conduct drawing on the principles of public life to provide some national consistency in this important area of local corporate governance would therefore be a valuable step forward. For whilst the Highway Code (first issued for a penny in April 1931) is now an established part of the national road-user consciousness, this may not in future be so regarding the rules of the road for local authority member conduct.

Summary Code of Member Conduct Principles

As a council member you should at all times:

1. Behave in the way that the public would reasonably expect, consistently with maintaining and promoting high standards of member conduct and with the seven principles of public life.
2. Ensure that decisions in which you take part: (i) cannot be perceived as motivated by any personal interest that might be associated with you; (ii) are (and are perceived to be) motivated only by objective public interest considerations.
3. Not disclose confidential information unless the Monitoring Officer agrees that it is clearly reasonable in the public interest to do so.
4. Not obstruct anyone in obtaining council information to which they are properly entitled.
5. Use your authority’s resources properly, reasonably and lawfully in compliance with the authority’s requirements. If in doubt consult the Monitoring Officer before acting.
6. Not under any circumstances accept any gift or hospitality if this may in any way be perceived as prejudicing your capacity to act solely in the public interest.
7. In any event treat any offer of a gift and/or hospitality with extreme caution and report any such offer or acceptance to the Monitoring Officer unless this is so minor that no reasonable person would perceive it as being able to prejudice your judgment of the public interest.
8. Follow the law and your authority’s rules and guidance on declaration of interests at meetings. This is so that decisions in which you participate are consistent with the second principle above.
9. Make decisions with an open mind and having proper regard to the information, advice and material before you at the time the decision is to be taken.
10. Ensure that there is no or no perceivable conflict of interest between your membership of an overview and scrutiny committee and your membership of any of your authority’s decision-making bodies (e.g. cabinet or any of its committees or sub-committees or the Council or any of its committees or sub-committees).
11. Treat others lawfully and with respect – in other words in the way in which you would reasonably expect to be treated yourself in the circumstances in question.

The Government has on 27 October 2011 tabled amendments to the standards provisions including:

• A requirement for relevant authorities to adopt a code of conduct consistent with the Nolan principles;
• A parish council to be able to adopt the code of its principal authority and assume compliance by the principal authority with the requirement to adopt a code;
• Code must include ‘provision the authority considers appropriate’ in respect of registration and disclosure of pecuniary and other interests;
• Relevant authorities other than parish councils will need to have in place arrangements under which written allegations that a member has failed to comply with the code can be investigated and decisions made following such investigation.
• Such arrangements will need to include the appointment of at least one an ‘independent person’ whose views must be sought and taken into account before the authority comes to a decision following investigation. The independent person will also be available (amongst other things) to express his or her views to the member subject to an allegation.
• The independent person cannot (amongst other things) be a member or officer of the authority or a relative or close friend of such person;
A decision is not to be invalidated ‘just because’ it involved a failure to comply with the code.

The Code requirement at least is pleasing and follows representations from ACSeS and others. It will be interesting to see whether there will be any more amendments covering other aspects e.g. sanctions.

Dr. Nicholas Dobson is a Senior Consultant with Pannone LLP specialising in local and public law is also Communications Officer for the Association of Council Secretaries and Solicitors. He can be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it..

© Nicholas Dobson