Not just back to the future

Jonathan Goolden analyses the key findings in the Committee on Standards in Public Life’s report on local government ethical standards.

There has been a growing chorus of concern and dissatisfaction amongst Monitoring Officers, local authorities and councillors with the lack of effective sanctions in the post-2011 local government standards framework. Even councils who were keen to replace the former national model code with the Local Government Association’s very much briefer version became frustrated with the impotence of the changes introduced by the then Secretary of State, Eric Pickles.

It is unsurprising therefore that the headline change proposed by the Committee on Standards in Public Life’s report on ethical standards in local government in England is to reinstate the power of a council’s standards committee to suspend a member for up to 6 months without allowances in the most serious cases.

That might be seen as just turning the clock back to 2011. However, that is only one element of what comes over as a carefully considered and measured study of conduct and culture in local government, both at principal authority level and for the first time by the Committee, in town and parish councils.

It is important to see the headline of bringing back suspension within the context of a range of other recommendations and best practice points which are interlinked and intrinsic to overcoming the challenges and deficiencies in the current system. Together, these are very much looking forward and not a recreation of the framework abolished by the Coalition Government.

For example, with the increased sanction of 6 months' suspension comes a recommendation on providing a right of appeal in such cases to the Local Government and Social Care Ombudsman (LGSCO), a strengthening of the position and role of the Independent Person and the inclusion of voting non councillors on standards committees – all measures which will provide a level of assurance to councillors who fear political influence or administrative incompetence that increased sanctions will be applied in a fair and objective manner.

These are all to be welcomed and the proposal of involving the LGSCO will look very familiar to colleagues in Wales where the Public Services Ombudsman for Wales (PSOW) plays a role analogous to the former Standards Board for England. There are differences though between the Welsh arrangements and what is now proposed for England. PSOW is in essence an investigator and prosecutor of serious cases which are determined by the Adjudication Panel for Wales. The Committee has been clear that it does not wish to reinstate the Adjudication Panel for England as that might be an example of over legalisation of the system, but there will be a need for the LGSCO to explain its approach to appeals. When read together, recommendations 13 and 14 in the report suggest clarity is needed on whether the appeal process envisaged is a review or a rehearing and how the LGSCO will fairly determine cases which it has (re)investigated. Nonetheless, this should not detract from the opportunity for the LGSCO to be able to draw broad conclusions and learning points on councillor conduct in the same manner as has been the case for its existing maladministration jurisdiction.

Another import from Wales is the proposal in recommendations 3 and 4 that members should be presumed to be acting in their official capacity in their public conduct or when they appear to be so acting, including on social media. The report acknowledges the current approach in England which is to follow MC v Standards Committee of LB Richmond [2011] UKUT 232 (AAC) – in essence focusing on whether the member was actually carrying out the functions of a councillor than whether they appeared to be doing so. The presumption will be rebuttable and will no doubt be a point of contention in investigations.

Turning elsewhere in the report, the proposal to decriminalise the requirements relating to declarable pecuniary interests (or DPIs) is very much to be welcomed. As MOs will testify, this has not worked in practice.

Firstly, as the report points out, the DPI rules are complex and limited in scope. They are hard to follow and do not capture interests which the public might think would be so significant as to impair a councillor’s ability to judge properly the issue under consideration.

Secondly, there has been only one prosecution (R v Flowers) despite evidence that Monitoring Officers regularly refer possible offences to police forces. This suggests that either the legislation is regarded as too complex to secure convictions or that prosecutors do not see enforcement of the provisions as a priority.

This has led to the situation that a complex set of rules which carry a severe penalty for non compliance which is almost never applied. That is unsatisfactory in rule of law terms in the sense that councillors should have certainty as to what is expected of them and clarity as to what may happen if they do not comply.

The attention paid in the report to the position of the Monitoring Officer in principal authorities and that of Clerk in town and parish councils is very much to be welcomed. Both need adequate support, resources and training to carry out their roles effectively and the report highlight this.

It also highlights that these roles cannot be performed effectively in isolation. Clerks need the guidance of their national representative body SLCC but also a constructive and supportive relationship with the Monitoring Officer of the principal authority in their area. That might be challenging for Monitoring Officers in rural districts with several hundred parishes (East Lindsey DC in Lincolnshire has over 300), but those district councils are often now in the forefront of seeking to delegate or hand over functions and services to town and parish level. Investment in governance (meaning equipping Monitoring Officers with the means to support and engage with Town and Parish Clerks) must go hand in hand with the delegation of functions and services. That is something to be borne in mind by district s151 officers when calculating savings to be made by devolving services to town and parish level.

As I said at the launch of the report by CSPL at Westminster on 30 January, my concern is that some of the recommendations require primary legislation to change parts of the Localism Act 2011. Even if all those recommendations enjoy the wholehearted support of the Government, they are likely to go to the bottom of a very long list of legislative priorities at the moment.

Though there is nothing to stop local authorities adopting the many best practice points in the report, that alone will not deliver the coherent network of changes which the Committee calls for. This is not a report to be delivered piecemeal. It needs and deserves to be implemented in full by not only local authorities but also by Government.

Jonathan Goolden is a Regulatory Partner at Wilkin Chapman LLP Solicitors. He was an advisor to the Committee on Standards in Public Life on the report. His views are personal.