Archived decisions

Contact: Jeff Pattison, 01962 847321

1 Summary

1.1 The Government has now published its Model Code of Conduct for Members which is required to be adopted by all Combined Fire Authorities by 5 May 2002. The provisions in the Code are mandatory and must be applied without amendment. Once adopted, each member of the Authority must sign up to the Code within two months of it being adopted, otherwise they cease to be a member of the Authority.

1.2 This report therefore sets out the terms of the Code with a commentary against each where this is considered necessary. For convenience, however, a complete copy of the Model Code of Conduct is attached as Appendix 1 to this report.

2 Background

2.1 The Authority previously considered a consultation draft of the Model Code of Conduct for Members at its meeting on 23 May 2001. A copy of that report and the comments of the Authority was subsequently forwarded to the Department of Environment, Transport and the Regions. As a result of these and no doubt other observations from other Authorities, the final version of the Code has been amended and does not include, for instance, a requirement for members to register their interest in private clubs. Neither is there a provision whereby the commission of any criminal offence is automatically a breach of the Code. Both of these provisions were subject to criticism by members. However, there remains a provision that members must not bring their office or authority into disrepute.

2.2 As mentioned above, the statutory Model Code must be adopted by the Authority by 5 May 2002, failing which it will be automatically applied. Members must then sign up to the Code within two months and it is extremely important for each and every member of the Authority to note that failure to do so will result in that member ceasing to be a member of the Authority. Arrangements will be made for members to sign an appropriate declaration.

2.3 Once the Code has been adopted, the Authority must then publish a notice in a local newspaper giving that information and must also send a copy of the Code to the Standards Board.

2.4 It is open for the Authority to adopt additional provisions and include them within the statutory Code, provided that these additional provisions are consistent with it. However, the Standards Board is currently advising all authorities not, at least initially, to include further local provisions on the basis that this may be confusing to both members and the public if they are dealing with two or more authorities.

2.5 It is important to note that should any local additional provisions be included within the statutory Code, they will be subject to enforcement by the Standards Board. It may be preferable in these circumstances, therefore, that if any local provisions are considered appropriate, they are included in a supplementary but separate local Code which, if there was any allegation of a breach, would then be investigated locally rather than by the Standards Board. It is suggested that to avoid any confusion, the Clerk should present a further report to a future meeting of the Authority on any additional local provisions considered desirable.

2.6 The statutory Code of Conduct also includes new, although not wholly different, requirements to be included within a register of interests. This will require members within 28 days of the adoption of the Code to provide a fuller record of their interests. Once the statutory Code is adopted, a pro-forma will be sent out by the Clerk for completion by each member. Members need to bear in mind that if there are any subsequent changes or additions to their entries in the register, then these must be made within 28 days.

THE MODEL CODE OF CONDUCT

Scope of the Code

1. (1) A member must observe the authority's code of conduct whenever he -

(a) conducts the business of the Authority;

(b) conducts the business of the office to which he has been elected or appointed; or

(c) acts as a representative of the authority,

and references to a member's official capacity shall be construed
accordingly.

(2) An authority's code of conduct shall not, apart from paragraphs 4 and 5(a) below, have effect in relation to the activities of a member undertaken other than in an official capacity.

(3)Where a member acts as a representative of the Authority -

(a) on another relevant authority, he must, when acting for that other authority, comply with that other authority's code of conduct; or

(b) on any other body, he must, when acting for that other body, comply with the authority's code of conduct, except and insofar as it conflicts with any other lawful obligations to which that other body may be subject.

(4) In this code, "member" includes a co-opted member of an authority.

Comment

This essentially reflects the provisions in the consultation draft and is not considered contentious. The references to paragraph 4 and 5(a) are, however, significant and will be referred to later.

It is clear that when a member represents the Authority on an outside body he or she must still comply with the code of conduct. The exception to this is where the outside body has its own code or legal obligations which need to be complied with and which take precedence. An obvious example would be where a member is appointed to a charitable organisation.

General Obligations

2. A member must -

(a) promote equality by not discriminating unlawfully against any person;

(b) treat others with respect; and

(c) not do anything which compromises or which is likely to compromise the impartiality of those who work for, or on behalf of, the authority.

3. A member must not -

(a) disclose information given to him in confidence by anyone, or information acquired which he believes is of a confidential nature, without the consent of a person authorised to give it, or unless he is required by law to do so; nor

(b) prevent another person from gaining access to information to which that person is entitled by law.

Commentary

These provisions are self explanatory and already reflect the principles by which members of the Authority operate. They should not therefore cause members any difficulty.

4. A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.

Commentary

Although the reference to the commission of a criminal offence has been deleted, this remains a significant requirement and obligation on the part of all members. The interpretation of what action on the part of a member might bring the office or authority into disrepute is not assisted by a total lack of objective criteria against which a member could assess whether there is likely to be a contravention of this provision. It may well be that different standards could be applied to different members, depending upon their respective responsibilities.

Presumably the Standards Board will be developing guidance on this issue. For present purposes, however, one way to assess the significance of the conduct might be to imagine the effect that it may have on the public and their perception either of the office of councillor or the impact on the Authority as a whole.

5. A member -

(a) must not in his official capacity, or any other circumstance, use his position as a member improperly to confer on or secure for himself or any other person, an advantage or disadvantage; and

(b) must, when using or authorising the use by others of the resources of the authority -

(i) act in accordance with the authority's requirements; and

(ii) ensure that such resources are not used for political purposes
unless that use could reasonably be regarded as likely to facilitate,
or be conducive to, the discharge of the functions of the authority
or of the office to which the member has been elected or appointed.

Commentary

This provision, as with clause 4, also places an obligation on members in respect of their activities both in an official and private capacity. Otherwise, the provision is self explanatory and appears fair and reasonable and one which accords with the normal practice of the Authority.

6. (1) A member must when reaching decisions have regard to any relevant advice provided to him by -

(a) the authority's chief finance officer acting in pursuance of his
duties under Section 114 of the Local Government Finance Act
1988 or an equivalent provision in any regulations made under
Section 6(6) of the Local Government and Housing Act 1989; and

(b) the authority's monitoring officer acting in pursuance of his duties
under Section 5(2) of the Local Government and Housing Act
1989.

7. A member must, if he becomes aware of any conduct by another member which he reasonably believes involves a failure to comply with the authority's code of conduct, make a written allegation to that effect to the Standards Board for England as soon as it is practicable for him to do so.

Commentary

Clause 6 is a reasonable and sensible one and the sentiments expressed in it already reflect case law and the manner in which decisions are made. This should not, therefore, cause members any difficulty.

Clause 7 now reflects the proposal contained in the report to the Authority in May 2001 that this clause would benefit from the inclusion of an obligation on the part of a member referring the alleged breach to have reached his or her decision reasonably. The addition of the word "reasonably" is important in the context of this clause. It means that any member referring an alleged breach must have some acceptable evidence to justify the allegation. To justify a reasonable belief, the evidence need not be substantial, but it should be of a nature which in the opinion of an objective member, does raise a concern which needs to be investigated.

Personal Interests

8. (1) A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given under paragraphs 13 and 14 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants of the authority's area, the well-being or financial position of himself, a relative or a friend or -

(a) any employment or business carried on by such persons;

(b) any person who employs or has appointed such persons, any firm in which they are a partner, or any company of which they are directors;

(c) any corporate body in which such persons have a beneficial interest in a class of securities exceeding the nominal value of £5,000; or

(d) anybody listed in sub-paragraphs (a) to (e) of paragraph 14 below in which such persons hold a position of general control or management.

(2) In this paragraph -

(a) "relative" means a spouse, partner, parent, parent-in-law, son, daughter, step-son, step-daughter, child of a partner, brother, sister, grandparent, grandchild, uncle, aunt, nephew, niece, or the spouse or partner of any of the preceding persons; and

(b) "partner" in sub-paragraph (2)(a) above means a member of a couple who live together.

Commentary

Although this clause in itself is self-explanatory, the definition of "relative" is very wide and it would be very unusual if any member was fully aware of the extent of financial and non financial interests on the part of these relatives. However, this provision can only be interpreted reasonably by assuming that the interests of the relative are already known to the member. It cannot be anticipated that a member in these circumstances would be obliged to find out about the interests of his or her family and friends.

The reference to paragraphs 13 and 14 are to those matters which need to be included in the revised register of members' interests. The extent of these will be described later in this report.

Disclosure of Personal Interests

9. A member with a personal interest in a matter who attends a meeting of the authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent.

Commentary

Although this clause is self explanatory, it needs to be emphasised that contrary to the position which applies at the moment, if a member does have a personal interest to declare, it is not now sufficient simply to declare that interest. Members must now also give at least a brief description of the nature of that interest.

Prejudicial Interests

10. (1) Subject to sub-paragraph (2) below, a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest.

(2) A member may regard himself as not having a prejudicial interest in a matter if that matter relates to -

(a) another relevant authority of which he is a member;

(b) another public authority in which he holds a position of general control or management;

(c) a body to which he has been appointed or nominated by the authority as its representative;

(d) the housing functions of the authority where the member holds a tenancy or lease with a relevant authority, provided that he does not have arrears of rent with that relevant authority of more than two months, and provided that those functions do not relate particularly to the member's tenancy or lease;

(e) the functions of the authority in respect of school meals, transport and travelling expenses, where the member is a guardian or parent of a child in full time education, unless it relates particularly to the school which the child attends;

(f) the functions of the authority in respect of statutory sick pay under Part XI of the Social Security Contributions and Benefits Act 1992, where the member is in receipt of, or is entitled to the receipt of such pay from a relevant authority; and

(g) any functions of the authority in respect of an allowance or payment made under Sections 173 to 176 of the Local Government Act 1972 or Section 18 of the Local Government and Housing Act 1989.

Participation in Relation to Disclosed Interests

11. A member with a prejudicial interest in any matter must -

(a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, unless he has obtained a dispensation from the authority's standards committee; and

(b) not seek improperly to influence a decision about that matter.

Commentary

Whenever a matter is considered by the Authority or a Committee, a member present must always consider whether they have a personal interest. As indicated in paragraph 8, a member will have a personal interest if either they, or a relative or friend, have an interest in that matter which affects the member, relative or friend, more than most other people in the area. Paragraph 8 clarifies a number of specific circumstances in which a personal interest will exist and also incorporates as a personal interest those matters which need to be disclosed by the member in the Register of Members' Interests, the details of which are given in paragraphs 13 and 14 below.

If a member does have a personal interest, then it must be declared, with a brief description of the nature of it. The declaration must be made at the commencement of the consideration of the matter or when the interest becomes apparent. The member, however, can still take part in the meeting and vote upon the matter, unless the personal interest is also a prejudicial interest.

What constitutes a prejudicial interest is a matter of personal judgement for each member, depending on the facts and merits of each case. There is no objective criteria identified which might assist a member in coming to his or her decision. The only guidance is given at paragraph 10(1), which essentially means that members must ask themselves whether a member of the public, if he or she knew all the relevant facts, would think that the member's interest was so important that their decision would be likely to be prejudiced by it. If a member is in any doubt as to the decision to make, it is always recommended that he or she should consult at the earliest opportunity the Clerk or his representative. It is always strongly advised that any such request for advice should be made as early as possible so that all information and circumstances can be understood and not left until a few minutes before the start of the meeting or during the meeting itself.

If a member having applied the prejudicial test is of the view that a prejudicial interest does indeed exist, then in addition to declaring the interest and giving brief details, they must also withdraw from the meeting. The Regulations are quite clear that in these circumstances members declaring a prejudicial interest should physically leave the committee room.

Paragraph 10(2) describes the circumstances in which members can be satisfied that although they have a personal interest, they do not have a prejudicial interest as defined in the Code of Conduct.

12. For the purposes of this Part, "meeting" means any meeting of -

(a) the authority; or

(b) any of the authority's committees, sub-committees, joint committees, joint sub-committees, or advisory committees.

Commentary

It does need to be clarified that the member attending a meeting does not need to be a member of that particular committee or sub-committee. Thus on the basis of the wording in the Code of Conduct, if such a member attends a committee or sub-committee in order to give a view or opinion on the matter to be discussed, then that member should, if he or she has an interest, declare it and its nature.

The Register of Members' Interests

13. Within 28 days of the provisions of an authority's code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his financial interests in the authority's register maintained under Section 81(1) of the Local Government Act 2000 by providing written notification to the authority's monitoring officer of -

(a) any employment or business carried on by him;

(b) the name of the person who employs or has appointed him, the name of any firm in which he is a partner, and the name of any company for which he is a remunerated director;

(c) the name of any person, other than a relevant authority, who has made a payment to him in respect of his election or any expenses incurred by him in carrying out his duties;

(d) the name of any corporate body which has a place of business or land in the authority's area, and in which the member has a beneficial interest in a class of securities of that body that exceeds the nominal value of £25,000 or one hundredth of the total issued share capital of that body;

(e) a description of any contract for goods, services or works made between the authority and himself or a firm in which he is a partner, a company of which he is a remunerated director, or a body of the description specified in sub-paragraph (d) above;

(f) the address or other description (sufficient to identify the location) of any land in which he has a beneficial interest and which is in the area of the authority;

(g) the address or other description (sufficient to identify the location) of any land where the landlord is the authority and the tenant is a firm in which he is a partner, a company of which he is a remunerated director, or a body of the description specified in sub-paragraph (d) above; and

(h) the address or other description (sufficient to identify the location) of any land in the authority's area in which he has a licence (alone or jointly with others) to occupy for 28 days or longer.

14. Within 28 days of the provisions of the authority's code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his other interests in the authority's register maintained under Section 81(1) of the Local Government Act 2000 by providing written notification to the authority's monitoring officer of his membership of or position of general control or management in any -

(a) body to which he has been appointed or nominated by the authority as its representative;

(b) public authority or body exercising functions of a public nature;

(c) company, industrial and provident society, charity, or body directed to charitable purposes;

(d) body whose principal purposes include the influence of public opinion or policy; and

(e) trade union or professional association.

15. A member must within 28 days of becoming aware of any changes to the interests specified under paragraphs 13 and 14 above, provide written notification to the authority's monitoring officer of that change.

16. A member must within 28 days of receiving any gift or hospitality over the value of £25, provide written notification to the authority's monitoring officer of the existence and nature of that gift or hospitality.

Commentary

These requirements to register members' interests appear to be straightforward, fair and reasonable. They are a significant improvement on the proposals previously contained in the consultation paper and discussed by the Authority in May 2001. In particular, prior proposals to require the cost of foreign visits, notification of interests in private clubs, including the Freemasons, Rotary and the Round Table, have been deleted, as has a general catch-all provision which required members to disclose any other interests which the public might reasonably regard as likely to influence him or her. These were all provisions which the Authority considered to be inappropriate and it is pleasing that they have been removed.

It is very important to note that members must register their interests in accordance with a form which will be supplied to them, within 28 days of the authority adopting this mandatory code of conduct. Furthermore, once a member becomes aware of any change to the interests, they must also be notified within 28 days. Failure to do so will be a breach of the code of practice and subject to investigation and comment by the Standards Board.

17. European Convention on Human Rights and the Human Rights Act 1998

18.1 The proposals within this report are compatible with the provisions of the European Convention on Human Rights and the Human Rights Act 1998.

Conclusion

This report analyses the new statutory Model Code of Conduct for members which the Authority is required to adopt by 5 May 2002. It is recommended that the Code should be adopted as soon as possible by the Authority.

Recommendation

That the Authority endorses the Statutory Model Code of Conduct for Members and recommends its adoption from 6 February 2002.

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.

None.

N.B. The list excludes:

1. Published works.

2. Documents that disclose exempt or confidential information as defined in the Act.

.