The CSPL Review of Ethical Governance and Bullying
Paul Feild looks at what the Committee for Standards in Public Life has recommended in relation to bullying and sets out the actions councils can take to address the issue.
On 30 January 2019 the Committee for Standards in Public Life (CSPL) published its 20th Report; the 2019 Review of Local Government Ethical Standards (the ‘Review’). The Review sets out the CSPL findings of research conducted in 2018 on the subject of ethical standards in local government.
This article follows up my recent commentary of 13 September 2019 on the CSPL Review and this time considers the CSPL findings and recommendations aspects in terms of behaviours, bullying and cultures, particularly in relation to member’s relations with officers. Incidentally a key thrust was that as localism is still government policy it was unlikely that there would be any changes in the current law soon. I don’t consider the new post 12 December 2019 administration will be likely to prioritise changes either as not covered in the Queen's Speech.
To recap the terms of reference of the CSPL Review were to:
1. Examine the structures, processes and practices in local government in England for:
- Maintaining codes of conduct for local councillors;
- Investigating alleged breaches fairly and with due process;
- Enforcing codes and imposing sanctions for misconduct;
- Declaring interests and managing conflicts of interest; and
- Whistleblowing.
2. Assess whether the existing structures, processes and practices are conducive to high standards of conduct in local government;
3. Make any recommendations for how they can be improved; and
4. Note any evidence of intimidation of councillors and make recommendations for any measures that could be put in place to prevent and address such intimidation.
The review will consider all levels of local government in England, including town and parish councils, principal authorities, combined authorities (including Metro Mayors) and the Greater London Authority (including the Mayor of London).
The Review therefore did not specifically address the question of bullying directly but as we shall see it emerged to become a key theme and led to specific proposals from the CSPL regarding measures to tackle it.
Reference to Bullying - what the Review says
The aspect of bullying is a reoccurring theme. It is mentioned 50 times.
Let’s highlight the key observations. Firstly, the letter to the Prime Minister[i] specifically refers to bullying and it says:
"It is clear that the vast majority of councillors and officers want to maintain the highest standards of conduct in their own authority. We have, however, identified some specific areas of concern. A minority of councillors engage in bullying or harassment, or other highly disruptive behaviour, and a small number of parish councils give rise to a disproportionate number of complaints about poor behaviour." Review p.6
Both the recommendations and best practice proposals put forward the need to record breaches of the Code of Conduct with specific reference to bullying.
It calls for the transparency code be so amended and that local authorities should specifically prohibit bullying in their local code of conduct with a specific definition of what constitutes bullying. The Review later cites the ACAS definition to be as it were a potential working definition, it says:
Whilst there is no statutory definition of bullying, the Advisory, Conciliation and Arbitration Service (ACAS) have codified a helpful definition: “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”. Review p. 34
I would guess that for reasons of consistency that will be the definition which most authorities will chose. A sensible choice, as in the fateful event of bullying being directed at staff the definition will accord with established employment law.
Next in Chapter 1, it is observed that many behaviour issues are related to bullying and harassment. It is not the only kind of misbehaviour of course, but it is the dominant form. We are told:
"Of councils that had received complaints, 83% said complaints had been made about disrespectful behaviour, 63% about bullying and 31% about disruptive behaviour" Review p. 22
Later (p.32) the Review notes that the subject of bullying is much better recognised since the last time the CSPL reviewed local government standards. They note that local codes do not always specifically refer to the subject. Nevertheless, bullying can have a very detrimental effect on officers and of course is corrosive to leadership [ii]. As well, bullying could lead to decision making which is not in the public interest and a failure of standards and governance.
An example is given (p.33) of an investigation into a local authority where bullying of an officer led to a breakdown of governance. The evidence led the CSPL to conclude that a requirement of ‘respect’ was not enough it observed:
"The Committee heard from Monitoring Officers and independent investigators that the broad ‘respect’ provision upon which many councils rely is not suitable for dealing with allegations of bullying and harassment." Review p.33
As a result, the CSPL makes the proposal:
"Best practice 1: Local authorities should include prohibitions on bullying and harassment in codes of conduct. These should include a definition of bullying and harassment, supplemented with a list of examples of the sort of behaviour covered by such a definition." Recommendation
The Review then considers the issue of bullying and sanctions.
The CSPL explains (at page 65) that in their view sanctions serve four purposes being:
- motivating observance of standards arrangements,
- deterring damaging behaviour,
- preventing further wrongdoing, and
- maintaining public confidence.
It is interesting to observe that punishment for wrongdoing is not one of the reasons. This leads to a strange state of affairs in that for example, say a member is found to have bullied or harassed another member, officer or citizen and committed a clearly wrongful act yet the application of a sanction for the behaviour is not for the purpose to be used for formal punishment. Thus, any decision to award a sanction against the member must be to either / or, encourage good standards, to deter damaging behaviour or further offending or to maintain public confidence. Yet the fact that the Member may be an unrepentant recidivist who deserves to be punished is apparently not a good reason for a sanction.
Indeed, at present they cannot be deprived of their basic members' allowances.
Now let us consider the case of say a standards committee finding that an officer has been bullied by a member and, if as will be likely the ACAS definition is used, then it will be effectively finding an act which amounts to a repudiatory employment breach permitting an employment claim for possible discrimination or constructive dismissal. As clearly the committee has no power to award compensation or recompense, it means that for the aggrieved victim that is unlikely to be the end of the matter. Not surprising then that a likely outcome is a reach for the compromise agreement and inevitable confidentiality clause and the council funds paying for it. More than likely the deal will include the officer withdrawing his or her complaint too!
But why should the council taxpayer pick up the cost and the member be able to carry on?
When I interviewed persons during my doctorate, one interviewee made the astute point that there is a possibility that the worst examples of member behaviour never end up as complaints because they are settled.
So far, we have considered the bullying member and the bullied officer. What if the bullied victim is a Monitoring Officer or the Chief Executive / Head of Paid Service and the bully is a senior elected politician?
While there are the provisions for independent investigation (See the Local Authorities (Standing Orders) (England) (Amendment) Regulations 2015), the political reality is that if there is a falling out it will be the officer who walks.
The likely resolution is again the compromise agreement which can be for many tens of thousands of pounds. Consequently, the bullying behaviour does not go to a standards committee to be heard, settlement papers are signed and off they go. It is as if it never happened. The outcome is that the public purse is picking up the cost for bad behaviour. This practice is wrong.
In the case of the Chief Finance Officer and the Monitoring Officer, they at least should have the backing of the Head of Paid Service as their line management. Insistence should be to use internal and statutory provisions. But on the other hand, a Chief Executive will have to think very carefully before they put in a grievance or a complaint against a leader who will inevitable have a say in the quarterly (or shorter) personal performance assessment of the said Chief Executive.
Nevertheless, I do think there is a way out of this. The best way to eliminate bullying is to ratchet up the organisational cultural unacceptability of bullying in the same way as discrimination is totally forbidden. For organisations they need to make no bullying de rigueur. This means local authorities must consider declaring full council support for local standards codes that are integrated with anti-bullying policies which specifically included provision to prevent the possibility of the taxpayer picking up the cost of bad politicians’ behaviour.
In addition, the use of compromise agreements by local authorities should be aligned with councils anti-bullying policies that requires civil evidential proof of bullying and that where individuals are identified as being responsible, then the authority will reserve to right to recover the cost from them be they member or officer. Sure, this measure will have its opponents for a quiet life and reputational management, but the CSPL Report to my mind forcefully argues something must be done and bullying needs to be eliminated, full stop.
Summary - action to take
Unless your Constitution already is compliant with the CSPL recommendations, it is time for revision. The implication is that your Local Code needs to reflect the advice to refer explicitly to bullying and reference the ACAS definition for adoption.
As a full council will have to approve the changes it is an ideal time to raise the subject of bullying as a governance concern and the commitment to training on the subject be provided and be integrated within a member’s development programme. Attendance can be set as a 100% performance target.
This action should be backed by an authority-wide initiative for officers too. Thus, there will be a dual prong approach of leading by example. The member/ officer cadres need to make it abundantly clear there will be zero tolerance to inappropriate behaviour be it bullying or in a similar form of intimidation, victimisation or discrimination. Compromise agreements must not be used for allegations of bullying without civil evidence levels of proof and a policy that enables the local authority to recover the cost of compensation from members if they are found responsible for breach of the local code of conduct by bullying following the due process of a Localism Act complaints process.
It maybe that while this work is at its peak that reports may come through about on-going bullying and it is recommended that a strategy and support mechanisms are so devised. This will be of special concern if the bullying is directed to influencing decision makers to take perverse decisions and in extremis could be criminal too if it were say for example influencing commissioning of contractors.
Conclusion
As observed the changes sought by the CSPL are contrary to localism and I don’t see the new Johnson government abandoning the party view that standards are a local matter at least for England. In other words, no imminent action should be expected.
Good governance is about being relied upon to do the right thing right away. A heavy responsibility lies with the triumvirate of the Head of Paid Service, the Chief Finance Officer and the Monitoring Officer. They must resist the lure of the compromise agreement fix. It is a bounden duty to uphold standards even if it hurts in the short term. They will emerge stronger. If they are on the receiving end themselves of bullying, then the temptation of a deal will be strong. But it won’t do them any good in the long run. News of unethical behaviour does get around, as does what people did about it. What needs to happen is their professions as a whole need to rally round and support the colleagues who are going through such travail, and that does not mean being a friendly emissary assisting with signing off the compromise agreement.
Organisations that place value on integrity do acquire a good reputation and equally those who put their figurative heads in the sand can and do shed good people and in due course unravel. But this does not need to be so. By strengthening the local code to address bullying head on and restricting the use of compromise agreements, it will deliver results.
Finally, Happy High Standards New Year!
Dr Paul Feild is a Senior Solicitor working in the Barking & Dagenham Legal Services Governance Team. He has been deputy monitoring officer for various authorities since 2000. He researches and writes on governance issues and can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..
[i] Teresa May
[ii] See David Prince's comments “ …reports have historically shown how, if unchecked at the outset, a corrosive and demoralizing culture can quickly take hold.” Written evidence No. 31
