Raising the standard - or a missed opportunity?

Matt Lewin reflects on the Government’s consultation on reforms to the standards and conduct framework.

The government’s consultation on Strengthening the standards and conduct framework for local authorities in England has now closed. Many – but not all – of the proposals would be welcome improvements to the current regime. However, elsewhere there are missed opportunities for much-needed reform.

Here are my reflections on some of the main aspects.

Governance arrangements

The Ministerial Foreword to the consultation document set out an ambition to improve local government by, among other things, avoiding “needless micromanagement of day-to-day local decision-making.”

It was therefore surprising that a number of the proposals set out in the consultation would impose governance arrangements on local authorities for dealing with standards matters. These included prescribing a “mandatory minimum code of conduct” and obliging authorities to convene standards committees.

My own view is that a mandatory minimum code is an acceptable idea in principle and could provide an opportunity to review the Local Government Association’s Model Code of Conduct.

The LGA Model Code was developed in response to a recommendation by the Committee on Standards in Public Life’s 2019 report Ethical Standards in Local Government. It is now in widespread use: according to a LGA survey in 2023, 63% of authorities had adopted it.

Personally I am not a huge fan of the LGA Model Code. I find it to be unnecessarily complex – it runs to 16 pages and is supplemented by a 40-page guidance document – particularly in its approach to registration and declaration of interests and its failure to provide a straightforward definition of official capacity.

As I observed in Cornerstone on Councillors’ Conduct and Standards in Public Life, the LGA Model Code arguably reintroduces much of the complexity that the Localism Act 2011 – in my view, rightly – tried to sweep away.

The other main proposal in this area is a mandatory requirement to convene a standards committee. I do not support this proposal and believe that authorities should be allowed complete discretion as to how their standards functions are exercised to reflect their own local circumstances and political cultures.

I have worked with two authorities – the City of London Corporation and the Greater London Authority – who do not maintain standards committees.

The Corporation made a deliberate policy decision to remove – as far as the law allows – responsibility for standards functions from its elected members by appointing an “independent panel” to hear complaints. This was in response to a governance review by the Lord Lisvane which found serious disfunction within its standards committee and concluded that “members cannot (and, in my view, should not) pass judgment upon their colleagues”.

Meanwhile the GLA’s arrangements for dealing with complaints against members simply provides for the Monitoring Officer to publish a decision notice explaining the outcome of complaints that have been investigated. There is no standards committee and no power to impose sanctions (other than publicity). However, again, this reflects the particular circumstances of the GLA, whose members have high public profiles and attract significant media attention.

Although probably not representative of a typical local authority, these are examples of why it is important to allow procedural flexibility and allow authorities to decide what governance arrangements work best for them.

Suspension and disqualification

The proposal to introduce a power of suspension – also recommended by the CSPL – was well-trailed in government announcements last autumn. It appears that the government is firmly in favour of this proposal and so the real questions are the maximum permitted length of suspension, whether it should be supplemented by a power of interim suspension and whether suspensions should be overseen by a new national body.

I support the introduction of a suspension power to give much-needed “teeth” to the sanctions available under the Localism Act 2011. As recommended by the CSPL, it should be limited to a maximum period of 6 months.

Given that suspension from office overrides a councillor’s democratic mandate, it should of course be reserved only for exceptional cases of misconduct, particularly those involving harm to staff or wilful and persistent defiance of the standards regime.

However I do not support the proposal for interim suspension. The rationale put forward in the consultation document is that interim suspension might be appropriate in “complex cases” which take time to conclude or which have led to a police referral.

However, in the employment law context it is firmly established that there is a strong expectation that a disciplinary investigation should proceed even where the matter has also been referred to the police: North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387. Only exceptionally (to avoid a real risk of a miscarriage of justice) should that process be suspended. In my view, the same approach should apply to local government standards to avoid unnecessarily prolonging the complaints process. Therefore a police or regulatory referral should generally not require a pause to a standards investigation.

I am also concerned that complaints – even relatively straightforward matters – frequently take longer than three or even six months to be resolved. A councillor serving an interim suspension could therefore end up excluded from office for longer than the CSPL felt appropriate.  Safeguards would be required to ensure that complaints are dealt with promptly.

Nor do I favour proposals for a new national body to oversee the imposition of suspensions. This seems to me to introduce an unnecessarily additional layer of decision-making and it is unclear how decision-making functions could be neatly divided between the authority and the new body without causing confusion or risking undermining the findings of one or both tribunals.

Finally, the consultation also sought views on disqualification, which was not signalled in earlier government statements.

As a matter of principle, I do not support disqualification, which invalidates a councillor’s mandate altogether. This is something which should, in my view, be reserved to their electorate. I am particularly concerned by the proposal for an automatic disqualification in response to two suspensions in the previous five years which would not appear to allow the authority to exercise discretion in such a case.

A better response to grave or persistent councillor misconduct would be to introduce a power of recall, similar to the Recall of MPs Act 2015, which would allow the electorate to express disapproval of their representative’s behaviour in between election cycles.

Missed opportunities

There are other unsatisfactory elements of the current regime which did not receive attention in the consultation.

The main aspect concerns the lack of a statutory definition of “official capacity”. This was touched on by the CSPL in its 2019 report, which recommended an expansive definition which would apply to most conduct carried out “in public”. I strongly support defining official capacity in this way and believe it is more in line with public expectations of our elected representatives. As the CSPL noted, councillors “inevitably” carry that label with them conducting themselves in public (particularly on publicly-accessible social media) and behaviour in that context does influence public perception of their ability and suitability to perform their official role.

The other area that needs reconsideration is the role and responsibilities of local councils (town, parish and community councils) in upholding high standards among their members. For many district councils I work with across the country, local councils are the main source of complaints – and are often the most difficult to manage, given that there is generally little in the way of party discipline and personality clashes are common.

Although local councils are “relevant authorities” under the 2011 Act, case law has now established that they do not have powers to investigate or determine complaints against their members. Because they will generally lack the resources and independence to do so, it has been held that this function is reserved to their principal authority.

The legislation on this point is far from clear and would be significantly improved by not only spelling out that local councils cannot determine complaints themselves but also that they should be required to enforce any sanctions imposed by the principal authority (such as training, removal from committees, etc) which the principal authority cannot impose itself. This would be consistent with the general duty in section 27(2) of the 2011 Act to “promote and maintain” high standards among members, to which local councils are subject just as much as principal authorities.

Conclusion

In an era of profound disillusionment with politicians and even our democratic institutions, it is of course welcome that the government has committed to improving local government standards. Many of the proposals in the consultation, if taken forward, should achieve that outcome.

However, as noted above, this consultation could have represented a real opportunity to go further and improve the legislative framework to make it more effective and easier to apply in practice.

Matt Lewin is a barrister at Cornerstone Barristers.