Contact: Jeff Pattison, tel 01962 847321 or email jeff.pattison@hants.gov.uk

1 Summary

1.1 Following consultation earlier in the year by the Department of Communities and Local Government, a Statutory Instrument has now been laid before Parliament bringing into effect the revised model Code of Conduct for Members. The revised Code must be formally adopted by the Authority before the 1^st October 2007, failing which it will be mandatorily imposed under the terms of the Local Government Act 2000.

1.2 The report gives a brief synopsis of the changes introduced by the revised Code of Conduct, and recommends that the Code be formally adopted by the Authority at its next full meeting on the 26 September 2007. To ensure that members are fully briefed on the changes introduced by the revised Code, and the implications for them personally, two training courses have been organised by the Clerk, which are to be held on the 14^th and 29^th June 2007.

2 Recommendation

2.1 That the Committee recommends that the revised Code of Conduct attached as an appendix to this report be approved by the Authority at its next meeting on the 26 September 2007.

3 Changes introduced by the revised Code of Conduct for Members

3.1 As members will appreciate the current Code of Conduct has been in operation since 2002, although it is fair to say that it has been the subject of some criticism as a result of the curtailment of members' ability to represent their constituents in certain circumstances. There has been much consultation on the Code and how it might be improved. The revised Code is generally more supportive of the member's representational role, and should give them greater flexibility in the future than has been the case hitherto. The full range of changes introduced and their implications for members will be discussed at two seminars which have been arranged by the Clerk, to take place on the 14^th and 29^th June 2007. This report therefore gives only a summary of those significant changes contained within the revised Code of Conduct.

Applicability of the Code

3.1.1 As previously the revised Code applies to all elected, and appointed members when acting in their official capacity. The Code will also apply when a member is acting in a private capacity, and is convicted of a criminal offence which brings their office or their authority into disrepute. However it should be noted that this latter provision will only apply once the Local Government and Public Involvement in Health Bill is enacted. This is a more restrictive application of the Code. Previously, it applied in both a member's official capacity and in "any other circumstances".

Members' General Obligations

3.1.2 Several of the previous obligations have been repeated in the revised Code or amended to give a slightly different affect. For example the current Code provides a positive obligation regarding equality enactments, whereas in the revised Code it has been changed to a negative requirement not to cause the Authority to breach equality enactments.

3.1.3 There are two provisions which are new. The first is an obligation on members not to bully any person. Although this obligation was previously subsumed within a requirement not to bring a member's office or authority into disrepute, both the Standards Board and Government consider that in view of their experiences, an explicit provision is required.

3.1.4 The other new provision is an obligation on members not to intimidate or attempt to intimidate any person involved or likely to be involved in any complaint. This would apply to any other member, officer or member of the public who might be involved in a complaint under the Code of Conduct.

Disclosure of Confidential Information

3.1.5 The current Code of Conduct provides an absolute prohibition on members disclosing information which is given to them in confidence. However the effect of this provision was amended by an Adjudication Panel for England case concerning Dame Shirley Porter. The revised Code therefore takes on board the lessons from that decision, and allows members to disclose information where it is in the public interest to do so. There are, as expected, several caveats to such disclosure. These are that the disclosure must be reasonable, have been made in good faith and be in compliance with the reasonable requirements of the Authority. It is important for members to note that this is not an open door for members to disclose confidential information, and that the caveats themselves will be difficult ones to overcome.

Disrepute

3.1.6 Members will be aware that there is an existing provision in the Code of Conduct that members must not conduct themselves in a manner which could bring themselves or their authority into disrepute. It applies whenever a member is acting in an official capacity, or in any other circumstances. It is this latter aspect of the application of the Code which has been changed. The change means that activities and actions by a member when acting in a purely private capacity will only constitute a failure to comply with the Code where their activity involves either bringing himself/herself or the Authority into disrepute, or constitutes using their position improperly but which also results in a criminal conviction. If, when acting in a private capacity, there is no criminal conviction there is no breach of the revised Code of Conduct. This is a significant change and results in a more narrow application of the Code to members when they are acting in a purely private capacity.

Personal Interests

3.1.7 The circumstances in which a member has a personal interest have also changed. The effect is to expand the circumstances in which such a personal interest might exist.

3.1.8 Members will recollect that they currently need to declare a personal interest whenever a matter came before the Authority in which they, a member of their family or a friend has an interest, or is one which is contained in their register of personal interests.

3.1.9 The revised Code now includes a requirement to insert in that register, all gifts and hospitality received by the member with a value greater than £25. One of the affects of this provision is that the Register of Members' Interests is available for public inspection. Furthermore, although the reference to `friend' has been deleted from the revised Code there has been inserted in its place reference to `close association'. This is of wider significance and will therefore embrace a greater range of people than previously was the case.

3.1.10 There is a saving provision that the interest will only be personal if it affects the member or the other range of people comprised within the definition greater than it would affect the majority of inhabitants in the member's electoral division. However this does not apply to those members on bodies which have no electoral division. Thus in the case of Fire and Police Authorities the assessment must be made as previously in relation to the whole of the area of the Authority. So far as personal interests are concerned there has also been inserted a provision whereby a personal interest would only exist where the member knew or ought reasonably to have known of it.

Prejudicial Interests

3.1.11 The circumstances in which a member has a prejudicial interest has changed significantly, and it is suggested beneficially so far as members are concerned. Although the test of what is a prejudicial interest is unchanged i.e. that a member will have a prejudicial interest where a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice their judgement of the public interest, its application is then significantly restricted.

3.1.12 The revised Code now provides that a member will have a prejudicial interest in any business of the Authority only where that business affects either the financial position of the member, or the range of people who are now brought within the range of people who must be considered when a member assesses whether they have a personal interest. To recap this refers to the members themselves, their family or anyone with whom they have a close association. The only other circumstance in which a member would have a prejudicial interest is where it relates to a decision on any approval, consent, licence, permission or registration in respect of any such persons. This contrasts with the existing provision whereby a prejudicial interest exists if those persons well-being is affected.

3.1.13 There are also significant changes to the consequences where a member, even in these more limited circumstances, is considered to have a prejudicial interest. Currently, if a member has a prejudicial interest they can take no part whatsoever in the decision-making process, must absent themselves from the room in which the decision was made, and must not attempt to improperly influence the decision-making process.

3.1.14 The revised Code of Conduct provides a significant improvement for members should they have a prejudicial interest in the future. Members with a prejudicial interest will be able to address the meeting at which the matter is being considered, and make representations to it with the only proviso that the public are also entitled to attend the meeting for the same purpose. In other words where the public are entitled to attend a meeting of the Authority, and make a deputation then a member with a prejudicial interest is also entitled to the same opportunity. Having made such presentations the member must then leave the room in which the meeting is being discussed. The obligation that a member must not seek to improperly influence a decision is continued.

Provisions of the revised Code not obligatory upon the Fire Authority

3.1.15 It has to be clarified that there are certain minor aspects of the revised Code of Conduct which are not mandatory upon Fire Authorities. These, for example, include paragraphs 6(c), 10(2)(c)(i) and (ii), 11 and 12(2) and other provisions relating to definitions. The reasons for this are that these provisions apply only to Authorities operating executive arrangements or carrying out certain functions.

3.1.16 However, all members of the Fire Authority are also members of other councils (County Council, Unitary Councils and District Councils) for which these provisions are mandatory. It is therefore recommended that these provisions are also retained for the Fire Authority to ensure consistency and the avoidance of any possible confusion on the part of members. Retaining these provisions will not adversely affect the interests of the Fire Authority or members serving on it.

3 Conclusion

3.1 The report gives a summary of the main changes introduced by the revised Code of Conduct for Members, which must be adopted by the Authority before the 1^st October 2007. However for a more full analysis of the changes introduced by the revised Code, members have been offered the opportunity to attend two training sessions on the 14^th and 29^th June 2007. The revised Code is an improvement on that which currently operates and gives members greater opportunity to make representations both on their own account and in respect of the interests of their constituents than has previously been the case.

Equality Impact Assessment

There are no equality issues arising from the recommendations in this report. They are considered compatible with the provisions of the European Convention on Human Rights, the Human Rights Act 1998 and the Race Relations (Amendment) Act 2000.

Section 100D - Local Government Act 1972 - background papers

The following documents disclose the facts or matters on which this report, or an important part of it, is based and has been relied upon to a material extent in the preparation of this report.

N.B. The list excludes:

1. Model Code of Conduct