Prospect of stronger sanctions in standards cases welcomed but questions raised about proposal for national body

The potential reforms to the standards regime for local government in England outlined in the English Devolution White Paper this week have sparked a mixed response among lawyers, with some welcoming the prospect of greater sanctions and others questioning the need for a national body.

The White Paper said the Government would consult on a national body to deal with the most serious cases and appeals, "as was the case under the former system with the Standards Board for England".

It also included a promise to consult on the introduction of powers to suspend members, including imposing premises and facilities bans, and the immediate disqualification of members in certain instances of serious misconduct.

Responding to the announcement, Lawyers in Local Government (LLG) said it was "pleased" to see new powers of sanction feature comprehensively within the White Paper.

LLG also commented on the Government's plans to consult on the introduction of 'formal standards committees' and a mandatory code of conduct.

The membership body said: "It is unclear at this stage exactly what 'formal standards committees' will look like in practice.

"Since the Localism Act, many authorities continued to maintain committees but certainly a statutory requirement would ensure parity across authorities and engender public trust, whilst ensuring that any sanctions were appropriately and proportionately applied."

In terms of a mandatory code of conduct, LLG said that whilst it generally advocates for local choice in most areas, "there are a number of examples of mandated codes across public service including the civil service which remove the risk of inconsistencies, political manipulation and erosion of public confidence".

Claire Ward, a partner at Anthony Collins who often acts as an external investigator in complaints investigations, meanwhile said: "Monitoring Officers are very adept at dealing with standards issues, and principal councils are more than able to deal with their own complaints.

"Poor conduct can be addressed if there are appropriate sanctions. I am not aware of any serious inconsistency in decision-making at a local level that would warrant the need for a national body."

Ward, acknowledged that the Standards Board used to produce a case digest that was "hugely helpful" when investigating complaints, "but the work of the Local Government Association in recent years has created the model code with guidance which is a good reference".

She added: "As a former Monitoring Officer, I know that the complaints process can be resource-intensive, and under the current regime, the amount of resource can outweigh the outcome, but I believe the duty to uphold the code should be retained with principal councils and that should include the determination of complaints."

Simon Goacher, partner and head of the local government team at Weightmans, also raised questions about the need for a national body.

Speaking to Local Government Lawyer, Goacher said that – while he will have to wait to see more details – he was "slightly surprised" by the Government's proposals to re-introduce a national body.

On this point, he said: "I just think we are in a different place, and we are also in a different financial environment, and I am not convinced that the money needed to set up a regulatory body is the best way of doing it in the circumstances we are in now."

He also said there would need to be a route of appeal in cases of suspension or disqualification.

The Committee on Standards for Public Life previously recommended that the Local Government and Social Care Ombudsman be responsible for any appeals in circumstances where a councillor has been suspended or disqualified.

However, Goacher said he is "not convinced" that the Ombudsman's involvement would be sufficient to meet legal requirements, including the right to a fair trial under the European Convention for Human Rights.

He added: "It will be interesting to see whether there is a route into the First Tier Tribunal again, or whether the new oversight body has some sort of role in relation to that.

"Obviously, in Wales, the Public Services Ombudsman has a role in relation to cases, but there's also an appeal to the tribunal as well.

"I think it will introduce a degree more legal process, which is inevitable if you're going to have stronger sanctions."

Jonathan Goolden, Partner at Wilkin Chapman, echoed Goacher's call for an appeal route.  

Goolden told Local Government Lawyer: "One of the key points I made to the Committee on Standards in Public Life, which they adopted in their 2019 report on local government standards, was that suspension or disqualification might only be used in the most serious of cases, but the lack of a top sanction undermined the enforcement of lesser sanctions such as training.

"I therefore welcome what looks like a serious intent to re-introduce suspension and disqualification, but work will need to be done on how best to ensure an appeal route is available in those most serious cases."

He added: "As a Monitoring Officer in England and a Standards Committee member in Wales, I very much hope the Government will look closely at how the standards frameworks in not only Wales but also Scotland and Northern Ireland have worked.

"I am particularly attracted to the educational and leadership role played by the Standards Commission for Scotland."

Adam Carey