Contact: Jeff Pattison, ext 01962 847321, email [email protected]

1 Summary

1.1 This report provides a synopsis of proposed Government amendments to the Code of Conduct for members. The report identifies significant changes proposed together with a commentary. A response has already been submitted to the Department of Communities and Local Government as the consultation period was shortened from the normal 12 weeks to only six weeks. A copy of this response is attached.

1.2 In addition to this, the report also identifies some suggested changes to the Standards regime which are contained within the Local Government and Public Involvement and Health Bill.

1.3 Both of these proposals are in the formative stage only and may well be subject to amendment. Once the proposals are finalised a further report will be submitted to the Committee and training offered.

2 Recommendation

2.1 That the Committee notes the content of the report and endorses the actions taken.

3 Background

3.1 Proposed amendments to the Code of Conduct

3.1.1 Members will be very familiar with the current Code of Conduct which has been in operation since 2002 and has been the subject of numerous training courses provided by the Head of Corporate and Legal Services. After some three years of the operation of the Code the Standards Board for England entered into an extensive consultation on its provisions and sought views on suggested amendments to be made to it. These amendments have been discussed with the Department for Communities and Local Government and other interested bodies, and as a result of which, the Department has submitted a consultation paper on proposed amendments. It is very disappointing, however, to note that with such a significant document the Government has reduced its normal 12 week consultation period to only six weeks. Apparently this has been done because the Government wishes to see the revised Code of Conduct in operation from May 2007. The concern is that any comments will, therefore, not be fully and properly taken into account, and the primary aim will be to rush into effect a Code of Conduct which it is considered requires significant drafting revision.

3.2 Changes to the Code of Conduct

3.2.1 Delete the reference to unlawful discrimination (paragraph 2(a)) - The proposal here is to delete the provision whereby a member is under an obligation to promote equality by not discriminating unlawfully against any person. This is to be replaced by a provision that members will be prohibited from doing anything that would seriously prejudice their authority's statutory duties in regard to equality.

Commentary - This is a technical change which results from the Adjudication Panel for England having decided that it has no power to make findings of unlawful discrimination. It is, however, disappointing that a positive duty has been replaced by a negative one. Furthermore there is no definition or interpretation of what "seriously prejudice" would look like in any particular case.

3.2.2 Bullying - A specific provision is to be inserted in the Code prohibiting members from bullying any person.

Commentary - Although the current Code of Conduct contains provisions that members must treat others with respect, the Standards Board's view is that a specific provision should be incorporated into the Code of Conduct to prohibit bullying because of the number of complaints that they have received relating to incidences of bullying. However, bullying behaviour is not defined, for example, whether or not it can constitute one action or must comprise a series of actions, but no doubt this will be left to the Standards Board in providing advice on the revised Code of Conduct and that of standards committees who, in the future, will be required to make initial determinations on complaints against members of their own authority.

3.2.3 Disclosure of confidential information - Paragraph 3(a)(iii) - The proposal will be to allow members to disclose confidential information where such disclosure is in the public interest.

Commentary - The Code of Conduct currently provides that members must not disclose confidential information given to them. It is an absolute prohibition. However, in the intervening years the Adjudication Panel for England has determined that the disclosure of confidential information should be subject to a public interest test in order to be Human Rights Act compliant.

It is important that members note that this is a heavily circumscribed caveat to the need for members to respect confidentiality. It is likely that the Standards Board will provide further guidance on the provision when it is finally brought into force but it is unlikely that guidance will allow members to disclose confidential information, for example, where the objective is simply to make political capital through the disclosure of properly identified confidential information.

3.2.4 Behaviour outside official duties - Paragraphs 4 & 5 - The Code of Conduct currently provides that a member must not, in his or her official capacity or otherwise, conduct themselves in a manner which could be regarded as bringing their office or authority into disrepute. Similar provisions relate to the conferring of an advantage or disadvantage in a private as well as an official capacity.

These provisions have been significantly watered down by the High Court Decision in the Ken Livingstone case in October 2006. The effect of the judgement was that the Code of Conduct, because of the specific provisions in Section 52 of the Local Government Act 2000, could only be effective in relation to the activities of a member in their official capacity, or in other circumstances where the activity was very closely connected to their official capacity. This interpretation ran counter to the previous views of both the Standards Board and the Adjudication Panel for England, which had disqualified members in circumstances where they had been convicted of criminal offences unconnected with their official duties.

The current and proposed Code of Conduct, therefore, must be restrictively interpreted so that it only applies to circumstances in which a member is carrying out his or her official duties, or whose activities are very closely connected to those official duties.

However, the consultation paper does note proposals to amend the statutory provisions via the Local Government and Public Involvement in Health Bill, so that in addition to behaviour undertaken in a member's official capacity, conviction for criminal offences will also be included. It is likely, therefore, that there will be a delay in this latter proposal being implemented so there may be a period of several months where the proposed revised Code operates only whilst a member is acting in an official capacity, and that the subsequent provisions regarding a member's criminal conviction will only become incorporated as part of the Code of Conduct subsequently.

3.2.5 Using or seeking to use improper influence - The Code currently provides that a member must not use one's position to improperly confer on or secure for himself or herself or any other person, an advantage or disadvantage. The proposal here is simply to extend this to include unsuccessful attempts to confer or secure such an advantage which is unobjectionable.

The opportunity has also been taken to add a clarifying provision that an authority's resources should not be used improperly for party political purposes.

This provision will be reinforced by requiring members to have regard to the Government's Code of Recommended Practice on Local Authority Publicity. This is a document which has been around since the Local Government Act 1986, and was most recently amended in 2001. It is a document which has been regularly referred to in advising members as to the limits placed upon the use of local authority resources for publicity, and particularly party political publicity.

3.2.6 Reporting breaches of the Code of Conduct - The Code of Conduct currently provides a duty on members to report breaches of the Code by other members where they have reasonable knowledge of such breaches having taken place. The proposal is to remove this duty. Most commentators, including the Standards Board, are in favour of this because there is evidence that it has been used by some members to make trivial allegations.

3.2.7 Prohibition of intimidation - It is proposed to add a further provision to prohibit a member from intimidating or attempting to intimidate a complainant or witness or other people carrying out a conduct investigation, support staff and others involved in the case whether they are other members, officers or members of the public.

Commentary - This seems to be an appropriate provision especially in the light of other proposals which mean that in future, complaints will be initially directed to the local authority's Standards Committee, rather than as hitherto the Standards Board for England.

3.2.8 Gifts and hospitality - The intention here is to require those gifts and hospitality amounting in value to over £25 to be registered in the members' Register of Personal Interests, so as to make it publicly available. However, the simplest means of achieving that is to make the Register open to public inspection rather than add an unnecessary layer of bureaucracy onto the existing Register of Members' Interests.

3.2.9 Interests of family, friends and those with a close personal association - The proposal here is to amend the current Code of Conduct and extend to those people who might be brought within a personal interest, by adding reference to any person with whom the member has a close personal association.

Commentary - It is considered that this extension of those other people who might have an impact on a member's interest is wholly unnecessary. The current provision relates to friends and there is at least some general agreement as to what the definition of `a friend' is. However, by adding reference to someone with whom one has a close personal association without an attempt to try to define what that constitutes, is both unnecessary and confusing.

3.2.10 Disclosure of personal interests - This revised provision clarifies that a member is only obliged to disclose a personal interest of a family member, friend or person with a close personal association where they are or should reasonably be aware of it. This does, therefore, reflect the advice that was previously given in training sessions for members.

3.2.11 Public Service interests - Paragraph 8(ii) and 8(vii) - This is a new provision which arises where a member is also a member of another public body and provides that any declarations of interest need only be made at the time that the member speaks on a relevant issue.

3.2.12 Prejudicial Interests - The list of exemptions where members need not regard themselves as having a prejudicial interest has been extended to include the situation where indemnities are agreed for members, the setting of Council tax and considering whether a member should become a freeman of the authority.

3.2.13 Participation in relation to prejudicial interests - The proposal here is to provide a clearer prejudicial interest test to apply for public service interests and where members attend to make representations. The intention in the Code to allow members greater opportunity to make representations to a committee, especially when they wish to communicate the views of their constituents, is certainly the correct one.

There is, though, confusion within the revised Code as to how this will be achieved and the relationship with paragraph 11(i)(a). For example, paragraph 11 of the revised Code of Conduct provides that if a member has a prejudicial interest then, as is the situation now, the member must withdraw from the meeting room and not seek improperly to influence a decision about the matter. However, other provisions within the revised Code allow members with any prejudicial interest not simply one where they may be representing the wishes of their constituents but, for example, one where they have a direct financial interest in, say, a planning application to make representations to the committee and then withdraw. These two provisions certainly need to be reconciled. Presumably the provisions in paragraph 11 were meant to take affect where a member had a direct prejudicial interest in a matter whereas the provision allowing a member with a prejudicial interest to make representations to a committee were meant only to operate where that member was representing the views of their constituents and did not have such a direct prejudicial personal interest.

4 Conclusion

4.1 The thrust of the proposed changes to the Code of Conduct are generally to be welcomed. However, it is clear that there are several provisions where the drafting needs to be improved and the interpretation of the provisions therefore made much more clear and specific. As the provisions stand at the moment, it would be very difficult to advise members about the implications of some of these provisions with any degree of certainty.

5 The Local Government and Public Involvement in Health Bill

5.1 Provisions in this bill also reflect the earlier consultation that was undertaken by the Standards Board for England and to some extent, the groundswell of opinion from local authorities and monitoring officers. The bill is currently in its formative stages and even if the provisions are enacted in their current form, it is unlikely that they will become effective until either later in the current year or early next year.

5.2 The main provisions of the bill so far as they relate to conduct matters are as follows:-

· Standards Committee will be responsible for the receipt of allegations and determining whether they should be investigated. If they are to be investigated it needs to be decided whether it would be undertaken by the Monitoring Officer or the Standards Board.

Commentary - This will require revised procedural arrangements to cover this situation. It is envisaged that it would be necessary to have a separate set of members from the Standards Committee to make this initial determination, and that the members so determining should take no further part in any subsequent investigation hearing or determination of the complaint should that be deemed to be necessary.

· Standards Committee should be chaired by an independent member.

· Local authority standards committees will be placed under a duty to provide periodic information to the Standards Board about allegations received by the Standards Committee and how they have been dealt with. As mentioned earlier in the report, the Code of Conduct will be extended to cover unlawful actions undertaken at any time. It is likely that this will need to result in a criminal conviction in the courts.

· The Secretary of State will make regulations whereby the Standards Board can suspend a local authority standards committee from deciding whether allegations should be investigated.

· Standards committees will be allowed to undertake joint working for some or all of their responsibilities.

Commentary - In view of the range of activities that standards committees will need to undertake, and the need to avoid any conflicts of interest, it is likely that some authorities, especially those smaller ones with less resources, may need to combine their efforts with other local authorities. The County Council will also need to consider whether any efficiencies can be achieved by adopting a similar approach, either with other district councils or county councils.

· A standards committee will be able to refer a report to the Adjudication Panel for England if it considers that the sanctions available to it are insufficient.

Once further details and guidance from the Standards Board becomes available, it will be necessary to consider in more detail how the County Council responds to these revised procedures.

6 Equality impact assessment

6.1 An impact assessment has been made on the proposals in the paper and shown that they are no discriminatory. 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 100 D - Local Government Act 1972 - background documents

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

· Response already submitted to the Department of Communities and Local Government

NB the list excludes:

1. Published works.

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