Localism and the CSPL review of ethical standards

Paul Feild examines the challenge to the Localism Act 2011 presented by the Committee for Standards in Public Life’s 2019 Review of Local Government ethical standards.

As many Local Government law practitioners will know 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.

Several excellent commentaries have been published on the findings and recommendations and rather than repeat them this article will critically examine the Review and question the implications in terms of current Government policy. It will argue that the Review has produced a wealth of qualitative data in the submissions which are well worth further study. A strong case is made for greater sanctions. Indeed, the evidence is there that in Northern Ireland and Wales where the stronger sanctions are available, that they are used. However, in this author’s view some of the proposals in terms of solutions are contrary to the localism principle and that while aspects of the current standards regime in Northern Ireland and Wales are commendable, they are for now politically untenable to localism in England.

To make the changes as set out in the recommendations would require significant legislative changes which go beyond some amendments to the Localism Act 2011. Such proposals ought to be subject to a much wider debate.

Because it is a subject worthy of further consideration (planned for later this year[1]), this article does not consider in depth the CSPL findings and recommendations aspects in terms of behaviours, bullying and cultures[2], particularly in relation to members relations with officers.

The Review

Since the Localism Act has been introduced there have been several local government matters which have hit the headlines, and in some cases required intervention by the Secretary of State under the Local Government Act 1999. The authorities being the London Borough of Tower Hamlets and Rotherham Council where in both cases Commissioners were sent in following a report by PWC (Tower Hamlets)[i] and Louise Casey (Rotherham)[ii].

The context of the Review is that the CSPL had been signalling it would be part of its work programme to carry out a review of local government standards. The Review’s terms of reference were to:

1. Examine the structures, processes and practices in local government in England for:

1. 1. Maintaining codes of conduct for local councillors
   2. Investigating alleged breaches fairly and with due process
   3. Enforcing codes and imposing sanctions for misconduct
   4. Declaring interests and managing conflicts of interest
   5. 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

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 report can be accessed here: https://www.gov.uk/government/publications/local-government-ethical-standards-report.

While the Report makes a number of proposals the CSPL acknowledged a substantial number will require primary legislation such as to amend the Localism Act 2011 or at least secondary legislation to change regulations made under that Act. And with the current Parliamentary timetable preoccupied by Brexit the CSPL recommended changes are unlikely to see the light of day any time soon.

The Data

The Methodology is set out in Appendix 2 of the Review and 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 take up four volumes with contributions from 319 individuals and organisation. 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 don’t know what was said and the process of what was selected to support the Review[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 or Rotherham were mentioned in any detail. Insofar as the desktop research is concerned it is not clear what weight the Review 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. Perhaps it would have better to visit Tower Hamlets which has experienced difficulties and to work 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 Review was influenced by, one key example being the recommendation of widening of the role of the Ombudsman or some new iteration, more of later.

The CSPL Recommendations that need Government Action

Some of the Recommendations can be taken up without Government action. These along with best practice identified can go ahead and are well worth considering. Today, we’ll look at those measures which will need Government support and whether it will be forthcoming.

Members

Recommendation 3 seeks to introduce a presumption that a councillor is acting in an official capacity when using social media and Recommendation 4 suggests the widening of the Localism Act 2011 to apply the Code when a Councillor holds themselves out to be acting as a member or representative of the local authority by claiming to act or give the impression they are acting in the capacity as a member or as a representative.

Clearly in the circumstances envisaged by the CSPL by their definition in the case of social media the member is not necessarily acting in an official capacity or as agent or they would be bound by their Code by virtue of section 27(2) Localism Act 2011.

The CSPL recommendation seems to propose a presumption in the absence of evidence, in other words it will be up to the member to show on balance of probabilities they were not acting in the office of member. In aid of this, reference is made to the mandatory Northern Ireland Local Government Code of Conduct for Councillors established under the Local Government Act (Northern Ireland) 2014 see https://nipso.org.uk/site/wp-content/uploads/2016/02/Code-of-Conduct.pdf. But it is not quite the same because the Northern Ireland approach does not provide an option of the members’ rebuttal. It is argued by the CSPL to be a more flexible approach to the “must observe the Code” of para 2.7 in the Northern Ireland Code.

But if there was evidence on whether the Member held themselves out there would be no need for the presumption. Whereas it now means that a member who was not in fact acting as agent of the authority being bound by the Code of Conduct when they were not so authorised or acting in the capacity of a member unless they prove otherwise on the balance of probabilities.  This reminds us of the Livingstone decision (Ken Livingstone v The Adjudication Panel for England QBD [2006]) where inter alia it was determined that his confrontation on the steps of the London Assembly was in his private capacity. A further case MC v Standards Committee of LB Richmond [2011] UKUT 232 (AAC) seems a sensible state of affairs that is to leave section 27(2) Localism Act 2011 alone and leave the local authority when called upon to deal with a complaint to determine the matter on the facts. I say this as it looks odd that there is a “must” for Northern Ireland and “rebuttable presumption” proposed for England. Indeed, the CSPL at page 40 acknowledges that the Wales and Northern Ireland approach could not in their words be “easily replicated”.

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 don’t 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 was to gain traction any new offence could be approached in the same way.

So, if the criminal law is not to apply what of other sanctions? Recommendation 16 suggests local authorities should be given the power to suspend councillors, without allowances, for up to six months.  The Association of Council Secretaries and Solicitors (ACSeS) sought counsel’s opinion from Clive Sheldon QC on what penalties could be imposed in the event that a complaint against a member was upheld. He gave an opinion on the range of possible sanctions. That is:

1. A formal letter to the councillor found to have breached the code;
2. Formal censure by motion;
3. Removal by the authority of the member from committee(s) subject to statutory and constitutional requirements;
4. Press release/other appropriate publicity

Sheldon QC Advice to ACSeS 11 January 2012

The CSPL has called for stronger sanctions since the Localism Act for example in their Annual Report in September 2014. At present there is no formal requirement to have a right of appeal within the Localism Act 2011 and that partially explains why there is no power to suspend because any more severe sanction would require a right of  appeal or be open to challenge under the Human Rights Act 1998. Maybe, the right ‘hard case’ could lead the current regime open to challenge. The Review wants to ensure that such a sanction will require the Independent Person’s assent. That raises the issue as to why should a non-elected non-judicial person have any say over the suspension of a democratically elected member. Incidentally why up to six months suspension anyway? This seems to have been arbitrarily picked for perhaps no better reason than it was and remains in some jurisdictions the maximum sanction historically. What about a power to suspend a suspension or reduction for good behaviour?

But maybe the CSLP have a point. I examined the Welsh Ombudsman’s casebooks and set out the reported sanctions.

The picture presented confirms there appears there is a pattern albeit diminishing, of conduct which merits suspension. That is 20 suspensions and 3 disqualifications over six years. But when compared to the number of complaints in 2015 of 265 complaints 6 were referred and in 2016 of 239, 9 were referred the numbers of suspensions are small. How that would translate to England in terms of numbers is not a simple job of multiplying the relative number of complaints by population due to numbers of different authorities, but clearly the figures support the view that if were the power to suspend it would be exercised.

A new role for the Ombudsman?

So, if we accept harder sanctions will need an appeal mechanism what is being proposed? The CSPL solution offered for appeals is the use of the Ombudsman. The CSPL has clearly been influenced by the merits of the Northern Ireland Local Government Commissioner for Standards. I notice that the Ombudsman commented on this option and was supportive subject to change in the law and resources arguing the example of Northern Ireland and Wales having similarity (see Submission 126 - 8 May 2018). I note the Ombudsman was also at a stakeholder meeting. Post the demise of Standards Board it is true the Ombudsman is probably best geared up to do the independent investigatory work regarding complaints about members. Further, a serious point in relation to who should investigate ruling party leaders and elected mayors which could have had proper consideration.

But I looked in vain for any discussion within the roundtables on the use of the Ombudsman for appeals and they are silent on the matter. It did not figure in the consultation either. It is also problematic. If such a measure was introduced it would run contrary to the whole thrust of the Localism Act being about local resolution of standards issues. A national official being involved in investigation and determination of a suspension (see Recomendations 10 & 14) by said official undermines the local democratic process. Far better perhaps to have an appeal by a differently constituted panel of the Local Authority or perhaps alternatively by the County Court?

Independent Persons

Independent Persons (IP’s) received considerable attention. Recommendation 8 suggests a tenure of two years renewable once. Oddly the Review quotes a view that a four years tenure is about right. The logic of this recommendation is lacking. As we don’t know what the average number of complaints in a year is - it is quite possible for some local authorities’ numbers to be very low. Indeed, during my doctorial research working with the Public Law Partnership, the mean average was 3 total complaints per annum with the sample authorities with the number going up in election years. This means it is quite possible that the IP may only deal with one or two and then be up again for renewal.

Having organised recruitment for IPs for several authorities, my experience is it is challenging to get people to come forward and be willing to take part once and in a while at short notice. The IPs carry out an important role which will take time to grow too. The comments on security of tenure in the Review and the question of the IP’s independence lack evidence to be convincing. We don’t for example say the same thing about magistrates only holding the role for say two years. I doubt the Secretary of State will find this recommendation merits legislative change and urge it is better to leave it to the local authorities (localism) to choose what suits them best.

Reception by Parliament

Readers may recall the new regime commenced on 1 July 2012, but in just over six months the implementation by authorities came under criticism by ministers in a debate on the new standard regime on 16 January 2013[vii]. It was observed by MPs that in many places the new regime was operating in a way that did not reflect Parliament’s intention in that it was said to be heavy-handed and as it were simply transplanting the old regime back in place without Standards for England.

The then Parliamentary Under-Secretary of State (Brandon Lewis) repeated his concern about vexatious and politically motivated complaints and went on to say that the complaints and standards regime as far as officers are concerned are: "expanding and developing as an industry and changing the regime seems only to have brought that industry further in-house" (Hansard 16 January 2013  ref 307WH). The debate was widely reported and later that month the ACSeS wrote an open letter in reply addressing as they saw it apparent misconceptions[viii].

As of yet, the government have not published their formal response to the Review, however I would be surprised if they would be minded to change the view expressed in 2013 and to agree to the proposal establishment of an England Local Government Commissioner for Standards with an appeal adjudication jurisdiction in matters relating to suspension. It should be remembered that Wales has and is still under different political control for such matters which may explain the difference better!

Clearly as suspension of a Member could lead to a change in control or political balance, the suspension itself would have not take place until an appeals outcome. If one uses Wales figures (above) as being purely indicative It is questionable whether the would-be Commissioner could take the work on with existing resources. We simply don’t know how many members would have been suspended if their authority had the power. From the Wales case study, I doubt it is high which would mean a whole system being established and rarely used.

If the consequences are more severe, then the timescale to deal with matters will certainly extent because so much will be at stake and it could take months to be decided. Delay can amount to maladministration. Furthermore, if there was an appeal to the Ombudsman it would inevitably lead to greater formality and the question of whether the accused member should be afforded legal representation. Certainly, where the control of a Council was at stake there would be some risk of the whole matter taking on a greater political dimension. Parties would be tempted to fund legal defences for their members. Of course, to reduce the risk of a sectarian approach to standards is a rational for the Northern Ireland arrangement. But there’s no evidence there is such a problem in England.

Conclusion

Now we wait for the Government’s response. It may be difficult in the light of the recent report of the Police handling of the Tower Hamlets elections to contemplate the removal of criminal sanctions from local politics. There was considerable concern expressed by Sir Eric Pickles that notwithstanding the Election Court’s findings and the higher level of burden of proof, no criminal prosecution followed.

The increase of sanctions and the necessary appeal mechanism would create a necessity for significant legislative change and the role of the Ombudsman being widened would require legislative change beyond the Localism Act 2011 to the Local Government Act 1974 as well. Would the resources be there? And what of the cost of greater formalism?

Certainly, if all the recommendations were implemented, it would have the potential to create a new industry of greater formalism, delay, dispute over presumptions and inevitably more legal activities and business. Then, every social media post could potentially be caught by the Code and in due course be subject to investigation by an agent of the Ombudsman and carry the risk of suspension.

To summarise notwithstanding the Review, several of the recommendations in the Review identified in this article appear to undermine the thrust of the localism of letting the local authority and its electorate deal with matters locally. I’m betting that the view held in the Westminster Hall debate will not be swayed by the CSPL’s Review. This Government or one of an equivalent hue will not support the extended sanction powers, decriminalisation, the potential Ombudsman’s new role or rebuttable presumptions as it is contrary to localism.

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..

References

Committee on Standards in Public Life (2014) Annual Report

Committee on Standards in Public Life (2019) 20th Report Local Government Ethical Standards A Review

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

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

[1] If anyone has any thoughts do let me know – contact at end or article.

[2] There are some excellent illuminating and quite heartfelt submissions in the evidence pack.

[i] See PricewaterhouseCoopers LLP (2014) Best Value Inspection of London Borough of Tower Hamlets 16 October 2014

[ii] See Casey, L. CB (2015) Report of Inspection of Rotherham Metropolitan Borough Council, House of Commons

[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] ( Hansard 16 January 2013 ref 289 WH Commencement 2.30pm)

[viii] (ACSeS Website 24 January 2013 President to Brandon Lewis)