Meeting: Standards Committee (County Hall, Durham - - 27/11/2008 10:00:00 AM)
Item: A3 Communities in Control: Real People, Real Power - Consultation on Codes of Conduct for Local Authority Members and Employees
| Report of Lesley Davies, Monitoring Officer |
1 To seek Members’ views on a response to a Government consultation on proposed revisions to the code of conduct for local authority members.
Background
2 The White Paper Communities in Control: Real people, real power is about passing power into the hands of local communities and the Government has published a series of Consultation Papers in association with the White Paper. The most recent of these relates to codes of conduct for local authority members and employees. A copy of the Consultation Paper has been placed in the Members’ Resource Centre and can also be accessed on line at http://www.communities.gov.uk/documents/localgovernment/doc/562D53.doc
3 The consultation invites views on proposed revisions to the 2007 model code of conduct for local authority members and the relevant extract, Chapter 2, is attached as an Appendix.
4 The Government is proposing to enhance the ethical framework for councillors by including its application to conduct in their private lives where that conduct constitutes a criminal offence which leads to a criminal conviction in the courts. In recognition of councillors’ public profile, the new proposals are designed to provide further public reassurance that councillors behave lawfully in all areas of their lives.
5 I have incorporated suggested responses to the Consultation Questions relating to the member code of conduct into the Appendix for your consideration.
6 Chapter 3 of the consultation relates to the question of whether an employees’ code of conduct, which would be incorporated into employees’ terms and conditions of employment, is needed. As this principle is in the initial stages of consideration the Head of Human Resources will consult with the Corporate Management Team to respond to these aspects of the consultation. In due course should the Government decide to go ahead with the proposal a further Consultation Paper on the content and operation of the employees’ code will be issued and this will be reported to the Council’s Standards Committee for consideration.
Recommendation
7 Members are requested to consider and agree a response to the consultation.
Appendix
Chapter 2: Code of conduct for local authority members
What is the code of conduct for?
2.1 The public has a right to expect high standards of conduct from their elected and co-opted members. The standards of conduct expected of local authority members are set out in the members’ code, which is underpinned by the ten general principles. By signing up to the members’ code, a member is actively taking on a formal obligation to abide by its requirements.
2.2 The members’ code forms the bedrock of the conduct regime and aims to promote the public’s trust and confidence in their members and faith in local democracy. It does this by providing a robust set of standards of behaviour for members to abide by and work within. In doing this, the code also protects members from unreasonable expectations of behaviour being put upon them. Since May 2008, allegations that a member has failed to comply with the provisions of the members’ code are considered by local authority standards committees.
2.3 The current members’ code is set out in the Local Authorities (Model Code of Conduct) Order 2007 which applies to members of relevant authorities in England and of police authorities in Wales. On its introduction, the Government gave an undertaking that the effectiveness of the code would be reviewed after it had been in operation for some time. We believe, drawing on the Standards Board’s practical experience that the members’ code is, broadly, operating very well. However, as it has been in force for over a year, we consider that it is now appropriate to review the code.
2.4 Most importantly, we propose that the members’ code be restructured by revoking the existing Order and making a new one. We propose that the new members’ code will be differently formatted to the existing code, making it easier to interpret and clearer in its application, for instance by dividing it into two sections: the first dealing with members’ conduct when acting in an official capacity and reflecting what is in the current code, the second dealing with members’ conduct in their non-official capacity.
Application of the code to members’ conduct in their non-official capacity
2.5 Trust in our local authority members is one of the cornerstones of local democracy. Members should inspire trust and confidence from those who elected them, set an example of leadership for their communities and should be expected to act lawfully even when they are not acting in their role as members.
2.6 This view was supported by those who responded to the Standards Board for England’s consultation on the members’ code in 2005. Responses indicated a clear view that a member’s conduct in a non-official capacity was an issue that they considered should be covered by the members’ code, particularly where that conduct amounts to a criminal offence.
2.7 It has always been our intention for the members’ code to apply to a limited extent to the conduct of members in a non-official capacity. We wish now to clarify which provisions of the members’ code apply in a member’s official capacity and to put beyond doubt which provisions apply to a member’s conduct in a non-official capacity.
2.8 The need to clarify what conduct in a member’s non-official capacity is covered by the members’ code arose as a consequence of a court judgment in 2006. This cast doubt on the ability of the code to cover members’ conduct not linked to the performance of their public duties. As was made clear by Ministers during the passage of the Local Government and Public Involvement in Health Act 2007, we consider that certain behaviour, even when there is no direct link to the member’s official role, can have an adverse effect on the level of public trust in local authority members and local government as a whole.
2.9 We propose therefore that the new members’ code should, in the section covering the conduct of members in their non-official capacity, contain the following provision prohibiting particular conduct where that conduct would constitute a criminal offence:
“Members must not bring their office or authority into disrepute by conduct which is a criminal offence”.
| Consultation Question 1: Do you agree that the members’ code should apply to a member’s conduct when acting in their non-official capacity? Yes. We share the government’s view that certain behaviour, even when there is no direct link to the member’s official role, can have an adverse effect on the level of public trust in local authority members and local government as a whole. In fact this reflects the view we expressed during the last consultation exercise in relation to public perception. |
2.10 The Local Government and Public Involvement in Health Act 2007 gave the Secretary of State the power to define, for the purposes of the members’ code, what constitutes a ‘criminal offence’. We propose for the purpose of the members’ code, that ‘criminal offence’ be defined as any criminal offence for which the member has been convicted in a criminal court, but for which the member does not have the opportunity of paying a fixed penalty instead of facing a criminal conviction.
2.11 Our intention is that offences capable of attracting fixed penalty notices should be excluded from the remit of the conduct regime. We consider that this approach will 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. However, serious criminal offences which we consider should come under the remit of the members’ code, such as assault, harassment, fraud and offences relating to child pornography will be included in the remit of the code.
2.12 We propose that the Standards Board for England will issue guidance for local authority standards committees on how a criminal offence should be treated in its application to the conduct regime.
| Consultation Question 2: Do you agree with this definition of ‘criminal offence’ for the purpose of the members’ code? If not, what other definition would you support, for instance should it include police cautions? Please give details. We agree with the proposed definition that for the purpose of the members’ code, ‘criminal offence’ be defined as any criminal offence for which the member has been convicted in a criminal court, but for which the member does not have the opportunity of paying a fixed penalty instead of facing a criminal conviction. |
2.13 The Local Government and Public Involvement in Health Act 2007 also gave the Secretary of State power to define, for the purposes of the members’ code, what constitutes ‘official capacity’.
2.14 We propose that for the purposes of the members’ code, ‘official capacity’ be defined 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.
Consultation Question 3:
Do you agree with this definition of ‘official capacity’ for the purpose of the members’ code? If not, what other definition would you support? Please give details.
We agree with the proposal that for the purposes of the members’ code, ‘official capacity’ be defined 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.
| Offending abroad 2.15 We also propose that the members’ code would engage with conduct committed in a foreign country, where that conduct constitutes a criminal offence in that country, but only where the conduct would also constitute a criminal offence if it was committed in the UK. However, the code would only apply if the individual was convicted in the country in which the offence was committed. Consultation Question 4: Yes we agree with the rationale and believe it is fair and reasonable to apply the principle in this way in relation to offences committed abroad. |
2.16 Our proposals would have the effect of providing that the only conduct in a member’s non-official capacity which is engaged by the code, is conduct which constitutes a criminal offence, as defined in paragraph 2.10 above. The code may only then be applied to that conduct when the evidence that the member’s conduct constituted a criminal offence is provided by the criminal conviction of the member in the courts.
2.17 This would mean, for example, that a member who was convicted of a criminal offence of assault or harassment could be held to have breached the code, even if the conduct, which led to the conviction took place entirely outside the member’s official capacity.
Criminal conviction of a member
2.18 It should be noted that a criminal conviction resulting in a custodial sentence of more than three months without the option of paying a fine is already covered by section 80 of the Local Government Act 1972, with the member automatically disqualified from office for five years. We are not proposing any changes to this legislation.
The conduct regime
2.19 At present, investigations into alleged breaches of the members’ code are triggered by a written allegation made to the standards committee of the local authority concerned. We propose that this continue to be the case when dealing with allegations of misconduct in relation to a member’s conduct in their non-official capacity.
2.20 Where the allegation involves criminal activity that is, at the time of the allegation being made, being investigated by the police or prosecuted through the courts, we propose that the standards committee or the Standards Board, as the case may be, would cease their investigation process until the criminal process had been completed. Any subsequent action under the conduct regime in respect of a member’s private conduct would follow the conclusion of the criminal procedure. The member would not be suspended during the period of the criminal process.
2.21 For the purpose of the conduct regime, the criminal process will be considered to have been completed at the conclusion of any appeals process.
Consultation Question 5:
Do you agree that an ethical investigation should not proceed until the criminal process has been completed?
We agree with the proposals outlined in paragraphs 2.19 to 2.21 in the context of local assessment and investigation of complaints.
| Proposed revisions to the members’ code 2.22 This consultation paper also seeks views on the following amendments which we propose to make to the provisions of the existing code. The proposed amendments reflect discussions with the Standards Board and, in particular, the Board’s experience of the practical operation of the code over the last year. 2.23 In order to aid your consideration of our proposed amendments to the members’ code, the substance of the present code is reproduced at Annex B to this paper. Guidance on the provisions of the members’ code is available on the Standards Board for England’s website at www.standardsboard.gov.uk Parish councils Membership of other bodies 2.29 It has also been suggested that paragraph 10(2)(c) could be amended to clarify that a member would not have a prejudicial interest in the business of the authority where that business related to giving evidence before a local authority standards committee hearing regarding an allegation that a member of the authority had failed to comply with the code. Registration of members’ interests Consultation Question 6: Yes. The amendments outlined in paragraphs 2.24 to 2.30 appear acceptable on the grounds of administrative consistency and to provide councillors with further clarification regarding personal and prejudicial interests. We have no suggestions relating to any other drafting amendments. Consultation Question 7: It is our view that the current aspects of conduct are relevant and should remain within the code. Consultation Question 8: We can not envisage any conduct that could occur which could not be related to the existing requirements of the Code. |
Legislative context
2.31 The current members’ code is set out in the Schedule to the Local Authorities (Model Code of Conduct) Order 2007 made under powers conferred on the Secretary of State by section 50 of the Local Government Act 2000.
2.32 Section 183 of the Local Government and Public Involvement in Health Act 2007 inserted, into section 50 of the Local Government Act 2000, a requirement for the Secretary of State to specify which provisions of the members’ code apply in relation to a member’s conduct when acting in an official capacity and which provisions apply when not acting in an official capacity. A provision may only be specified to apply to members’ conduct when not acting in an official capacity if the conduct it prohibits constitutes a criminal offence. The power in section 50 of the Local Government Act 2000 permits the Secretary of State to define for the purposes of the members’ code what is meant by “criminal offence” and what is meant by “official capacity”.
2.33 We propose that the existing Local Authorities (Model Code of Conduct) Order 2007 be revoked and a new, revised Order would be made to reflect our proposed amendments and that part of the code applies to a member’s conduct in their official capacity and part of it would apply to a member’s conduct in their non-official capacity.
2.34 Provision is also made in section 183 of the Local Government and Public Involvement in Health Act 2007 for members to give to their authority an undertaking to observe the new code within a period prescribed by the Secretary of State. We propose that members will have two months from the date their authority adopts the new code to give a written undertaking that they will observe their authority’s code. Failure to do so will mean that they cease to be members of the authority.
Consultation Question 9:
Does the proposed timescale of two months, during which a member must give an undertaking to observe the members’ code, starting from the date the authority adopts the code, provide members with sufficient time to undertake to observe the code?
Yes the timescale is considered reasonable.
| Proposed amendments to the General Principles What are the General Principles? 2.35 The ten General Principles, contained in the Relevant Authorities (General Principles) Order 2001, are based on the seven principles of public life set out by the Committee on Standards in Public Life. The principles underpin the provisions of the members’ code, which must be consistent with these principles. 2.36 The ten general principles are reproduced below. The principles govern the conduct of members, and a failure to act in accordance with them may lead to a failure to comply with the members’ code. The General Principles Selflessness Honesty and Integrity Objectivity Accountability Openness Personal Judgement Respect for Others Duty to uphold the law Stewardship Leadership Proposed revisions 2.37 We propose that the Relevant Authorities (General Principles) Order 2001 be amended to make clear which principles govern the conduct of members when acting in an official capacity and which principles will apply to the conduct of members when acting in a non-official capacity, where the member’s conduct would constitute a criminal offence. 2.38 We propose that the General Principles Order be amended by providing that the 10 existing principles apply to a member when acting in an official capacity and by adding a new principle which would be specified as applying to a member acting in an non-official capacity, where the member’s conduct would constitute a criminal offence. We propose that the following be added to the Schedule of the Relevant Authorities (General Principles) Order 2001: Duty to abide by the law Consultation Question 10: Yes. We agree with the proposed revisions outlined in paragraphs 2.37 and 2.38 to clarify the principles governing conduct in an official and non official capacity and incorporate the new principle: Duty to abide by the law Members should not engage in conduct which constitutes a criminal offence. |
Definition of ‘criminal offence’ and ‘official capacity’
2.39 Section 49 of the Local Government Act 2000 enables the Secretary of State to define what constitutes a ‘criminal offence’ and what constitutes ‘official capacity’ in the context of the General Principles Order. For the purposes of the revised General Principles Order, we propose that ‘criminal offence’ be defined as any conduct that has resulted in a criminal conviction.
Consultation Question 11:
Do you agree with this broad definition of ‘criminal offence’ for the purpose of the General Principles Order? Or do you consider that ‘criminal offence’ should be defined differently?
Yes. We agree with this broad definition.
| 2.40 We propose that for the purposes of the revised General Principles Order, ‘official capacity’ be defined 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”. Consultation Question 12: Yes. We agree with this definition. |
Legislative Context
2.41 The Relevant Authorities (General Principles) Order 2001 was made under powers conferred on the Secretary of State in section 49 and 105 of the Local Government Act 2000. Section 183 of the Local Government and Public Involvement in Health Act 2007 modified section 49 of the 2000 Act and it is this modification that requires the Secretary of State to specify which general principles apply to a person when acting in an official capacity and when acting in an non-official capacity.
Attachments