Contact: Kevin Gardner, tel. 01962 847381, email [email protected]

1 Summary

1.1 The Government has recently consulted on possible amendments to the Members Code of Conduct which was revised and adopted by the Authority last year. This paper will consider the amendments and suggest a response to the Government Consultation on this code. In addition, the Government has also consulted on a proposed Code of Conduct for employees. This proposal was earlier trailed in a consultation from the previous Office of the Deputy Prime Minister in August 2004 with little or no progress being made in the intervening period. Again the report will identify the main principles being suggested in the Code and a suggested response to the consultation from the Authority.

1.2 An electronic copy of the Consultation Paper can be accessed at:-

www.communities.go.uk/publications/localgovernment/codesconductconstulation

2 Proposed Revisions to the Members' Code of Conduct

2.1 Members will recollect that it was only last year that a revised Members' Code of Conduct was adopted by the Authority following extensive consultation from both Government and the Standards Board for England.

2.2 There are several proposed changes to the existing code which are of technical and drafting significance only. The most significant change proposed is in respect of the circumstances in which a Member's conduct, when acting in a non-official capacity, can constitute a failure to comply with the Code of Conduct.

2.3 At the moment, a Member's conduct in a private capacity can only be considered as a potential failure to comply with the Code of Conduct if the actions taken by the Member result in a conviction for a criminal offence. This change was introduced by the Local Government and Public Involvement in Health Act 2007. This relates to the commission of any offence which results in a conviction in the Criminal Courts.

2.4 The suggestion in the Consultation Paper is that this should be restricted so as to exclude minor criminal transgressions. This is defined as those criminal offences for which the Member has the opportunity of paying a fixed penalty instead of facing a criminal conviction. The effect of this would be to ensure that the most minor criminal offences, for example, minor motoring offences, parking offences and dropping litter as well as cautions and orders falling short of a criminal conviction by a Court will not be included in the remit of the Members Code. Obviously more serious criminal offences would be so included.

2.5 Commentary - There can be no doubt that some conduct in private life can reflect upon a Member's suitability to continue as a Member and that the principle that the Members' Code should apply to a Member's Conduct when acting in their non-official capacity should apply. However, this should not include minor technical breaches of the criminal code as it is not considered that these would have an adverse effect upon either the Member's ability to undertake the role of a Member, their reputation or the reputation of the Authority. Also, embracing such a large number of low level trivial offences within the Members' Code (and therefore the assessment and investigative procedure) would be bureaucratically out of all proportion to the likely outcome. It is also considered that the definition of those criminal offences to be excluded from the application of the Members' Code is fair and reasonable.

2.6 The consultation paper also raises the issue of the circumstances in which the Members' Code would be engaged with conduct committed in a foreign country.

2.7 Commentary - It would appear entirely appropriate that the Code should apply where a member is convicted of a criminal offence abroad but only where that offence would also have been a criminal offence if committed in the United Kingdom. This is particularly important and relevant in the context of the apparently widespread nature of some international fraud and internet child pornography offences publicised in the media.

2.8 The consultation paper also suggests a revised definition of official capacity as being "engaged in the business of your authority including the business of the office to which you are elected or appointed or acting, claiming to act or giving the impression that you are acting as a representative of your authority".

2.9 Commentary - It is agreed that this is a reasonable definition of "official capacity" for the purposes of the Members' Code.

2.10 The consultation paper also asks whether, if a complaint is made in respect of alleged criminal activity on the part of a Member, which is investigated by the police or prosecuted through the Courts, the standards committee should cease their investigation until the criminal process has been completed.

2.11 Commentary - The Authority is asked to comment as to whether or not this is the correct process to follow. The alternative is that the two investigations, one criminal and one under the Members' Code, could continue in parallel. This is quite a difficult issue. On the one hand, a Member of the Authority like any other member of the public is entitled to a presumption of innocence until proven guilty. On the other, this could allow a Member to continue in their role perhaps for a number of years until due process is completed notwithstanding serious allegations having been made and having the potential for serious adverse reputational effects on the individual Member and the Authority. On balance, however, it is suggested that the appropriate course of action would be to delay the conduct investigation until the completion of the criminal process. To do otherwise could be prejudicial to a fair trial in view of the likelihood of adverse publicity prior to the trial.

2.12 As mentioned above, there are several suggested drafting changes to the existing Code of Conduct which would benefit from further clarification. It is suggested that these can be easily agreed too.

2.13 The consultation paper also asks whether or not there are any other proposed alterations that should be made to the existing Code of Conduct.

2.14 Commentary - There are only two areas where it is considered that further changes should perhaps be made:-

a) The first one is that the Code of Conduct does not apply to a Member during the course of his/her suspension. It is considered that this gap in the application of the Code should be remedied.

b) The current threshold for the declaration of gifts and hospitality by Members remains at £25 and this has been the case for at least the last seven years. It is considered that this is an artificially very low figure and should be increased. The suggestion would be to a figure of £100.

3 Conclusion

3.1 The effect of the consultation on the Members' Code of Conduct is generally to make some small changes to the existing Code of Conduct, in itself, a surprise as the Code has only been in operation since May 2007. The most significant proposed change is in relation to the circumstances in which a Member's conduct in their private capacity can also constitute a failure to comply with the Code of Conduct through the commission and conviction of a criminal offence. It is considered fair and appropriate that more minor trivial offences should be excluded from having an impact on the Members Code of Conduct and the method adopted in the consultation paper is appropriate. The other changes proposed are less significant and, as indicated above, can be broadly welcomed.

4 Code of Conduct for Employees

4.1 The first point to note is that it is now over four years since the then Office of the Deputy Prime Minister consulted on a draft Code for Officers. Notwithstanding that, some of the responses to that consultation have been taken into account. In particular, previous responses were to the effect that it was not necessary to have an all embracing Code of Conduct for all employees as this would be unduly burdensome and bureaucratic on local authorities. The suggestion was made, and this has been taken into account in the current consultation paper, that there would be a two tier model. The first would embrace core values that would be expected to be complied with by every Authority employee. The second would be more detailed provisions which would apply to what the consultation paper refers to as "qualifying employees". Both the core values and also the more detailed provisions can be found on the weblink indicated above.

4.2 Commentary - The first issue is to whether or not a mandatory Model Code of Conduct should apply to local government employees and another question posed is whether or not it should also apply to those employees who are in professions covered by their own Code of Conduct, for example, fire-fighters, teachers and solicitors.

4.3 Commentary - The public justifiably expect the highest standards from those employees working in the public sector. For that reason alone, it is appropriate that all local government employees should be governed by a consistent and reasonable Code of Practice which sets out the core values to be expected of them. It is not, however, appropriate to exclude any employees from the application of that national statement of core values. It must be borne in mind that most professional codes of conduct exist to secure the reputation of the profession although it is accepted that this will, on most occasions, also benefit the employer. However, if the Code does apply to all employees which it is suggested that it should, it would be appropriate to provide that where an employee is subject to a Code of Conduct which is a pre-condition of the employee performing the functions of the post, then the employee's Code of Conduct shall not apply in so far as it is incompatible with that other code.

4.4 On the question of what constitutes a "qualifying employee", the consultation paper suggests that this can either be done by identifying those employees who carry out delegated powers on behalf of the authority or alternatively, those who are covered by the political restrictions brought in the by the Local Government and Housing Act 1989. It is suggested that a much more consistent application which would cover all senior officers within an Authority would be to apply the more detailed code to all those employees who were also covered by political restrictions introduced by the 1989 Act.

4.5 Proposed Employee Core Values

These are the core values that would apply to all local authority employees. They come under the headings of:

· Accountability

· Political Neutrality

· Relations with Members, the Public and other Employees

· Equality

· Stewardship

· Personal Interests

· Whistleblowing

· Treatment of Information

· Appointment of Staff

· Investigations by Monitoring Officers

4.6 This statement of core values, which broadly reflects the similar core principles which apply to Members, can be supported. The only drafting change suggested is under the heading of relations with Members, where there is a reference to the employee dealing with the public, Members and other employees sympathetically, efficiently and without bias. To accord with the Members' Code of Conduct, it is suggested that the word "sympathetically" should be replaced with the words "with respect".

4.7 The Model Employee's Code for Qualifying Employees

In accordance with the proposal for a two tier system of codes for employees, the consultation paper then describes a series of provisions which would only apply to "qualifying employees". The headings to these provisions which, again, can be found on the weblink indicated above are as follows:-

Compromising the impartiality of officers of the Authority;

Using your position improperly;

Considering advice provided to you and giving reasons;

Personal interests;

Prejudicial interests.

4.8 Commentary - There is no great argument about the first three provisions of the Code but there is a need for comment regarding the issue of personal interests. The requirement here is for "qualifying employees" to register their personal interests within 28 days of taking up their appointment or when the provisions come into force. These must be recorded in writing and given to the Authority's Monitoring Officer. However, the interests identified fall short of those which Members are expected to identify under their Code of Conduct. There would seem to be some logic in the "qualifying employee's" Code also covering similar areas to those covered in the Member's Code. It is therefore suggested that the following further interests should also be included as being registerable under the Code:-

· Membership or a position of general control or management of outside bodies to which appointment has been made by the Authority;

· Membership or a position of general control or management of public authorities;

· Membership or a position of general control or management of a body directed to charitable purposes;

· Membership or a position of general control or management in a body that principal purposes of which include influencing public opinion or policy;

· Any other employment or business carried on;

· Any gifts and hospitality with a value greater than and it is suggested here that the figure should be £100 which has been received by reason of the employment;

· Any tenancy of the Authority's property;

· Any land in the Authority's area occupied for 28 days or more.

4.9 It can be envisaged that any of these extra interests could have an effect, certainly in public perception terms, should an officer with them be engaged on work for the Authority which brought him/her into conflict with that interest.

4.10 Another issue raised under the prejudicial interest factor is one relating to the action an employee should take if such a prejudicial interest exists which will be a personal interest in respect of a licensing or regulatory matter or one which effects the employee's financial interest. The Code here provides that whilst the interest should be declared, the employee should take steps to avoid influential involvement in the matter. It is suggested that this does not go far enough. Any employee with a prejudicial interest in any matter should be strictly prohibited from having any direct or indirect involvement in the matter coming before the Authority.

4.11 Another issue raised in the consultation paper is whether or not the employee's register of interest should be available for public inspection. It is suggested that for the purposes of transparency openness and to a consistent approach with the Members' Register of interests, this too should be available for public inspection but that to avoid any potential breach of the Human Rights Directive, the information should not be more widely published, for example, on the Authority's website.

4.12 A final question in the consultation paper is whether or not authorities should be required to incorporate the exact words of the employee's code into contracts of employment.

4.13 Commentary - Once again for the purposes of consistency between local authorities and the expectations of the public, this should indeed be the situation. Otherwise, situations could arise where the residents of one particular area have locally produced codes by a combination of authorities to which they refer, i.e., County Council, District Council and Fire Authority. This situation would not aid public understanding of such a Code of Conduct.

5 Conclusion

5.1 As with the proposed revisions to the Members' Code of Conduct, there can be little serious objection to the proposals for an employee's Code of Conduct, which is now long overdue. It is considered that with the comments raised throughout this report, the provisions of this code can be welcomed.

6 Recommendation

That members consider the Department for Communities and Local Government Consultation Paper on the Codes of Conduct for Councillors and Employees and the commentary on these proposals contained in this report, and authorise the Clerk to submit a response on behalf of the Authority in the terms set out in this report, and incorporating any comments agreed by the Committee.

Background Papers:
None