The Minister for Equalities and Levelling Up's response to the Committee on Standards in Public Life's report on Local Government Ethical Standards is right, argues Paul Feild.
We saw in Local Government Lawyer earlier this month commentary from Matt Lewin of Counsel on the Minister for Equalities and Levelling Up's response to the 20th Report of the Committee for Standards in Public Life [i] (the CSPL and the Report) published on 18 March 2022 [ii]. Do go and read it.
The CSPL Report took the approach of mixed methods including:
- a public consultation, which received 319 responses
- 30 individual stakeholder meetings
- desk top research, including research on the legal framework for local government standards
- analysis of a sample of 20 principal authority codes of conduct
- analysis of reports of corporate failure [iii]
- roundtable seminars, with Monitoring Officers, clerks and Independent Persons; and academics and think tanks
- five visits to local authorities in England
In terms of content the written submissions took up four volumes with contributions from 319 individuals and organisations. It must have been a mammoth task to assimilate so many responses and assemble the data to make conclusions.
Unfortunately, one assumes for reasons of confidentiality the content of the stakeholder interviews were not noted so we do not know what was said and the process of what evidence was selected to support the Report [iv]. The roundtable discussions were minuted. These are worth reading as they illuminate the thought processes. The roundtable of 18 April 2018 resulted in a short selection of bullet points and the meeting of 24 April 2018 a semi-structured discussion [v]. No London boroughs were represented. From the notes neither the failings of Tower Hamlets nor Rotherham were mentioned in any detail. Insofar as the desktop research is concerned it is not clear what weight the CSPL Report put on this aspect as there is no literature review as such [vi].
One London borough (Camden) was visited. Again, there are no notes published of what was seen or what was said. Maybe it would have better to have visited Tower Hamlets which experienced difficulties with elected members and to have worked this up into a case study to inform.
Because of the lack of transcripts of the stakeholder interviews or even summaries including the questions asked, it is difficult at times to glean what evidence the CSPL Report was influenced by, one key example being the recommendation of widening of the role of the Ombudsman.
After being published in January 2019 it seems the CSPL Report then lay on the Governmental shelf or pending tray for the next three years. When finally, the Government response was published last month it was in the form of a short letter and a reply which dealt with some of the CSPL Report's recommendations in bulk. Those measures the Minister did support were essentially common sense, agreed best practice and driven as much by other events (e.g., the tragic senseless murder of Sir David Amess MP on 21 October 2021) as anything the CSPL said.
Lord Evans the Chair of CSPL commented:
“While we note the government’s commitment to further work to support local government, the Committee is disappointed that many of its careful recommendations have not been accepted. It was clear from our evidence that the sector backed our call to strengthen the arrangements in place to support high ethical standards, whilst respecting the benefits of a localised approach.
We are pleased that many local authorities have already reviewed their approach as a result of this work and are adopting the best practice points from the report. Across all tiers of local government, decisions are taken about a wide range of local services using public funds, so it is important that there are robust governance arrangements that command public confidence.” CSPL Website 18 March 2022
Not wanting to crow, but the approach and final contents of the minister's letter and the rejection of much of the CSPL’s recommendations was predicted in the September 2019 piece. The 20th CSPL Report was not a convincing document, it did not seem to grasp the Government's attachment to localism and how important the Westminster Hall 2013 debate on standards was in setting the scene [vii]. In that debate there was real anger from the MPs over what they saw as a plan to bring the Standards Board approach back by council officers. I do not think that was right, having spoken to some of the officers who were concerned with it and who were well-intentioned in wanting to establish a consistent approach.
That localism is still the Government's declared local government philosophy was confirmed in the minister's attached letter. The minister observed:
…the Government believes that some of these suggestions do not need a legislative response but can be more appropriately, effectively, and swiftly taken forward by local authorities as best practice. The Committee will recognise that the Government and Parliament has taken a different view on these matters when it legislated for the Localism Act 2011. Kemi Badenoch MP
The Westminster Hall debate brought home that politicians do not like officers trying to bring in as they saw it a regional code of conduct through the back door through the promotion of a model code. This view of let the code be developed locally undoubtably fuelled the thinking in the ministerial response. But fair enough. The light touch view is the Government’s view of the power relations between the officer cadre and elected members. Put simply attempts to establish England-wide codes are contrary to Government’s philosophy of localism, that it is for elected members of local authorities to decide what they want as a code.
Just to mention the Local Government Association model code of conduct for a moment, it needs to be understood as a truth universal to Monitoring Officers and their tireless deputies, that most complaints against members are a combination of unrealistic expectations, wanting in evidence and have no reasonable prospect of success.
The LGA model code is 16 pages long and while, I have no doubt, lots of time and effort went into it, combined with the Guidance it is just too long. In May and June inductions across the land, you can imagine some newly elected members saying, "what is all this about?" Furthermore, it will encourage complaints. Take for example the LGA model which casts the net to bring in the old ground of “bringing into disrepute”. Hugely problematic.
The guidance to the LGA Code says:
In general terms, disrepute can be defined as a lack of good reputation or respectability. In the context of the Code of Conduct, a councillor’s behaviour in office will bring their role into disrepute if the conduct could reasonably be regarded as either:
- reducing the public’s confidence in them being able to fulfil their role; or
- adversely affecting the reputation of your authority’s councillors, in being able to fulfil their role
With respect, how is that going to be determined by a citizen? It is an ultra-political statement. The reality is the only dimension this might have traction would be if a complaint were brought by a Chief Executive or a Monitoring Officer. I question whether it is outside the required principles of section 28(1) Localism Act 2011.
Returning to the CSPL Report, what can only be described as a mess was created by the CSPL’s Report ‘careful’ recommendation that the failure to declare Disclosable Pecuniary Interests should no longer be a crime. I said in Local Government Lawyer September 2019:
Recommendation 7 and its amendment of Section 31 Localism Act 2011 is tied in with Recommendation 18 in that abolition of the offences set out in Section 34 Localism Act 2011. Interestingly this would also take away the power of a court to disqualify for up to five years and weaken the need to comply with section 30 Localism Act 2011 too.
While this was no doubt well-intentioned, the CSPL has sent out a difficult message being that they do not consider a level 5 offence of failing to comply with obligations in section 31 Localism Act 2011 should be a crime. In the event there is such a prosecution for now, a defendant will no doubt pray in aid the CSLP’s observations on the matter that in their own words it is a “misdemeanour”. The rationale for this is set out at page 73.
The evidence CSPL cites for their recommendation is with respect somewhat of a tautology. We are told they heard the police were not geared up to these breaches, that there is a “high bar” and to “potentially criminalise a public-office holder for what is essentially a code of conduct matter is inappropriate”. But as we saw with the Tower Hamlets election criminal investigations, just because the Police are not au fait with an area of law does not give them the soft option of not enforcing it. Indeed, if that idea were to gain traction any new offence could be approached in the same way.
Do not forget a level 5 fine is no small matter. So, we have had over three years of a CSPL saying it should not be a crime and the minister saying yes it should. She said:
It is a criminal offence to fail to declare pecuniary interests, which acts as a strong deterrent against corruption.
The Government does not agree with this recommendation, but rather believes the criminal offence of a non-disclosure of pecuniary interest to be a necessary and proportionate safeguard and deterrent against corruption.
The high bar of police involvement has served to discourage politically motivated and unfounded complaints.
Quite right too. I wonder how many prosecutions have been dropped, influenced by the CSPL 20th Report recommendation. Maybe none? Let us be clear the Police hardly covered themselves with garlands in how they dealt with the affairs of Tower Hamlets [viii] [ix].
If the CSPL together with their misguided recommendation of an expanded role for the Ombudsman for appeals had been acted on one thing would absolutely be certain the taxpayer would be footing the bill. Clearly if a member’s seat was potentially in the balance, it could change the overall political control of a council. Inevitably a bonanza for private law firms and counsel's chambers funded by agreements for legal expenses being paid if the standards claim failed and yes that would be right to do so as there would be a lot at stake.
Combine that with the ‘disrepute’ ground and you have the perfect storm in a teacup.
The first and most crucial point to remember is councillors have a democratic mandate. All the calling for further sanctions and disqualification puts too little weight on this. There is something not right about the potential for an unelected member of the public or officials to seek to remove those who have been chosen by the ballot box. The implications are if you are going to have suspension or disqualification it needs to be done by a court of law according to proper rules of evidence and a right to appeal and a right to free legal advice.
I have argued that localism is essentially about culture. Culture is ‘what people do around here’. I am concerned about the CSPL. It tried in its 14th Report to get a tougher regime. That did not succeed. When I was researching my doctorate in 2013, they were a great help. But I was aware that there was academic criticism [x]. Lord Evans' statement about the careful recommendations is questionable as the recommendations are more of a curate’s egg.
I defended the CSPL at the time in my thesis, but the 20th Report, is flawed, with a patchy evidence base for example on the use of the Ombudsman, little input on London boroughs and it dodged the really difficult issue. That being while the 2011 localism standards regime is reasonably workable it cannot deal with the issue of the wayward leader. For example as happened in Essex, Liverpool, Tower Hamlets or more recently City of York. Furthermore, if the leader diverts from the straight and narrow it can set a climate of a band of behaviour which is contrary to good practice. Recently the Downing Street ‘Partygate' business is making the whole aspect of standards worrying. It seems at the national level if the leadership can tough it out long enough then the media interest moves on and an adroit politician lives to another day. Why is the CSPL not speaking out about that?
Finally, a theme to my writing about governance is the need for pro-activity in setting a culture of doing things right. Here I do think we can learn from of fellow professionals in CIPFA who have published excellent coherent guidance on financial practice and the reports in the public interest brought in by the local auditors under the Local Audit and Accountability Act 2014 are leading the way in highlighting poor financial and public administration.
Localism Act 2011
Local Audit and Accountability Act 2014
Committee on Standards in Public Life (2014) Annual Report
Committee on Standards in Public Life (2019) 20th Report Local Government Ethical Standards A Review
Judgment in the High Court of Justice, Queen’s Bench Division, in the matter of the Representation of the People Act 1983 and in the matter of a Mayoral Election for the London Borough of Tower Hamlets held on 22 May 2014 (M/350/14).
Pickles.E, (2017) Securing the ballot Report of Sir Eric Pickles’ review into electoral fraud
Badenoch. K, (2022) Government response to the Committee on Standards in Public Life Review of Local Government Ethical Standards
[iii] As there is no list of references one can only guess what matters were referred to.
[iv] Yet there must be some transcript or how else can the observations be referenced.
[v] This is odd as one would have expected to see at least what the opening points and questions were.
[vi] The use of materials and references is set out at foot notes without a clear citation list at the end which is a shame.
[vii] See Hansard 16 January 2013 ref 289 WH Commencement 2.30pm
[viii] Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (2019) Operation Lynemouth: Final report Inspection of the Metropolitan Police Service’s review and reassessment of alleged criminal offences arising from the 2014 mayoral election in the London Borough of Tower Hamlets
[ix] Incidentally, the 20th Report materials redacted the name of the Leader of Essex County Council in the materials notwithstanding he went to prison over House of Lords expenses claims!
[x] Doig, A. (2014) The Committee on Standards in Public Life has Proven Ineffective in Safeguarding Ethical Standards Across Local Government, London School of Economics. Democratic Audit.com 10 March 2014