Standards in England - time for a review?

Mark Heath argues that the standards regime introduced by the Localism Act 2011 is not working as intended and needs a rethink.

It was the Localism Act 2011 that introduced the current regime which regulates the conduct of councillors in England (including pecuniary interests). It has been in place now for more than five years. Whilst there were many who had concerns at the outset into the changes, there is much that we would all now accept was correct.

However, I believe that valid concerns remain and need addressing. This article therefore argues not for wholescale reform, but that it is timely to start a debate asking whether there are, in the light of experience, aspects of the regime that warrant fine tuning. The article suggests that there are aspects that would benefit from such consideration and seeks the views of practitioners.

Background

The Coalition Government announced in its Programme for Government in May 2010 that the “Standards Board regime”, regulating the treatment of councillors’ conduct and pecuniary interests, was to be abolished. This was done via the Localism Act 2011. Standards for England (formerly the Standards Board) was abolished on 1 April 2012.

The new standards arrangements replaced the regime introduced by the Local Government Act 2000 and amended by the Local Government and Public Involvement in Health Act 2007. Local government standards are devolved to Scotland, Wales and Northern Ireland.

The policy

Ministers believed the previous approach had become a vehicle for petty, partisan and sometimes malicious, allegations of councillor misconduct that sapped public confidence in local democracy.

A DCLG press release at the time stated: "These new measures, outlined in the Localism Act, will replace the bureaucratic and controversial Standards Board regime, which ministers believe had become a system of nuisance complaints and petty, sometimes malicious, allegations of councillor misconduct that sapped public confidence in local democracy. "

During the Bill's debate in Parliament, two quotes stand out:

The Secretary of State for Communities and Local Government (Mr Eric Pickles)

"The Bill is based on a simple premise: we must trust people who elect us and we must ensure that we trust them to make the right decision for their area. To misquote Clint Eastwood: A Government needs to know its limitations."

George Hollingbery (Meon Valley)

“…Getting rid of the Standards Board for England has to be the right thing to do. It was a cipher for partisan activity in local politics and its passing will not be mourned by anybody. On predetermination, the most ludicrous situation existed, whereby people could be elected to champion a local cause yet not be able to take part in the decision. What an unbelievably crazy situation that was! I greatly welcome the board's passing.”

Further, Local Government Minister Bob Neill said in a letter to Leaders:
"The Standards Board regime led to an explosion in petty, partisan and malicious complaints that dragged down the reputation of local government, as well as suppressing freedom of speech. We have published a practical guide that shows how the new local standards strike a common sense balance between electoral accountability and personal privacy.

“As a former councillor myself, I know councillors are motivated about doing a good job for the local residents they serve. Instead of having hundreds of expensive and frivolous investigations hanging over their heads, local councillors should now be free to get on with their jobs."

The regime (England)

The Localism Act 2011 included the following measures:

• The abolition of Standards for England (previously the ‘Local Government Standards Board for England’);
• A requirement for local authorities to promote and maintain high standards of conduct;
• Provision for the introduction of local codes of conduct and local responsibility for investigating alleged breaches of those codes. Local authorities were to establish a code,
• which was to be based on the seven ‘Nolan principles’ of public life, and to specify sanctions for breaking it;
• Requirements concerning how local codes of conduct should treat the registration and disclosure of pecuniary and other interests;
• The creation of a new criminal offence of failing to comply with the statutory requirements for disclosure of pecuniary interests.

The case for review

The policy was clear - simplify the regime, remove the party political complaints, abolish Standards for England. But what we have now with the benefit of experience would benefit from fine tuning.

Government will not have legislative time (or motivation) to consider this with Brexit monopolising all and any Parliamentary time. So it is up to us to make a case and propose a solution or options.

The courts have criticised certain of the wording in the Localism Act 2011 underpinning the regime (see R (on the application of Taylor) v Honiton Town Council (2016)) which as a result would benefit from revisiting.

However, based on my experience and comments from colleagues, I would suggest that there are three significant aspects that would benefit from improvement whilst remaining within the government's stated policy position:

• The absence of sanctions and teeth means that the regime has fallen partially at least into discredit. The assumption that members found wanting would face the consequences at the ballot box does not address the immediate issue that those who breach the rules can seemingly carry on regardless. The issue of adequate and effective sanctions to applied locally requires revisiting.
• The "old" code was explicit in relation to bullying and harassment by members. The new regime would benefit by expressly making it clear that such behaviour is unacceptable.
• The absence of explicit powers to require access to documents, to require members or officers to attend interviews or to require the member to attend a hearing would benefit from being included. This would stress the importance of high standards of behaviour.

Conclusions

I believe that these are gaps in the current arrangements. If you agree (or disagree) I'd like to hear from you. And if there are other matters that need changing, tell me. I will be letting Government know about this and of course updating you through this periodical. You can contact me at This email address is being protected from spambots. You need JavaScript enabled to view it.

Mark Heath is a Consultant with Veale Wasbrough Vizards and the former Chief Operating Officer at Southampton City Council.

This article was first published in the July edition of Local Government Lawyer Insight, which can be accessed at http://www.localgovernmentlawyer.co.uk/insight Insight is published four times a year and is circulated free-of-charge to all Local Government Lawyer newsletter subscribers (click here to subscribe) in electronic format. A single hard copy is also circulated to all local authority legal departments in England and Wales. Additional printed copies are available for just £49.95 for four issues. Multiple copies are also available at £149.95 for five or £249.95 for 10. Payment can be made by purchase order/invoice or by credit/debit card. To order, please call 0207 239 4917 or email This email address is being protected from spambots. You need JavaScript enabled to view it..