REVIEW OF CHANGES TO THE STANDARDS REGIME IN 2012
The Acting Monitoring Officer presented a report in respect of a review of changes to the Standards Regime made in 2012. The following appendices were submitted with the report:
Appendix A - Terms of Reference of Standards Committee; Appendix B - Member Code of Conduct; Appendix C - Role of Independent Person; Appendix D - Codes of Conduct adopted by Parish Councils; and Appendix E - Section 25, Localism Act 2011. The Acting Monitoring Officer advised that the new systems had been in place for seven months and therefore that it was considered an appropriate time to review the approach the Council had chosen to adopt. It was worth noting the recent criticisms of the new standards regime within the 14th report from the Committee on Standards in Public Life. The most damning quote in respect of local government standards was: The new, slimmed down arrangements have yet to prove themselves sufficient for their purpose. We have considerable doubt that they will succeed in doing so and intend to monitor the situation closely. On 24 January 2013, the President of the Association of County Secretaries and Solicitors (ACSeS), a professional association for Monitoring Officers, wrote an open letter to Brandon Lewis MP, in which he stated ACSeS has raised with your department a number of issues concerning interpretation of the standards provisions where the drafting has given rise to doubt and ambiguity. However, we have not received a response which has the benefit of apparent legal input. In the absence of certainty from the legislation, some authorities have properly and reasonably sought external legal advice. As you will appreciate, the wording of the Act and relevant Regulations does not always lend itself to the particular interpretation that Ministers might desire. Member Code of Conduct The Acting Monitoring Officer reminded the Committee that the Council had adopted its Code of Conduct on 12 July 2012. The report to Council noted that there was no consistency locally as to the approaches followed (which was of course fully compliant with the spirit of the legislation on this point), and that some of the codes promoted by national bodies were considered to be very difficult to enforce. It was therefore recommended, and Council chose to adopt, a Code of Conduct which was a revised version of the former model code of conduct. This was fully compliant with the legislation which stated at Section 28(5)(a) Localism Act: A relevant authority may - revise its existing code of conduct. The Acting Monitoring Officer commented that the Code of Conduct had not yet been tested from the point of view of dealing with a formal complaint, but had been used to provide advice, particularly in respect of Members interests. Working with the Code of Conduct had identified areas which could be improved. The Acting Monitoring Officer stated that, from research he had undertaken on Codes of Conduct adopted by authorities using the models proposed by the Local Government Association and Department of Communities and Local Government, and a Code prepared by the Public Law Partnership, which had drawn criticism from the Government, he considered that the Council had chosen the correct approach with its Code of Conduct. However, upon reviewing the Code, there were areas where improvements could be made whilst maintaining the overall approach: The pre-amble needed to be updated, as the Committee on Standards in Public Life had recently updated their definitions of the principles of conduct. Consideration could be given to moving the pre-amble into part of Part 1 of the Code; Part 1 (the general obligations) could be better worded, whilst retaining similar principles; Part 2 (Members interests) would benefit from being clearer and simplified. Ideas included moving the list of Disclosable Pecuniary Interests (DPIs) into an appendix to the document; bringing together the Other Pecuniary and Non-Pecuniary interests into one single category; simplifying the effect of interests on participation, including relaxing the current interpretation that where there was a DPI the Member could not be present for any of the item (including initial speeches prior to debate); Tie in explicit references to other policies which governed Member conduct, including the Gifts and Hospitality Policy and Member/Officer Working Protocol. Generally, seeking to simplify, shorten and make the document less legalistic. The Committee supported the proposed improvements, and the Acting Monitoring Officer undertook to investigate the practicality of inclusion either in the Code or as an appendix of some examples to illustrate the approach required by the Code of Conduct. Arrangements for dealing with complaints In respect of the arrangements for dealing with complaints, the Acting Monitoring Officer advised that, at the time of writing the report, no formal complaints had been received and therefore the new arrangements had not yet been used. However, since the report had been issued, the first formal complaint (against a Parish Councillor) had been received. The arrangements adopted by Council in 2012 seemed reasonable and proportionate and so no amendments were proposed at this time. At its meeting on 12 July 2012, the Council delegated authority to the Monitoring Officer, in consultation with the Independent Person, to make minor amendments to the Complaints Procedure Arrangements. There was therefore already a process to review the Arrangements as complaints were received and processed to ensure they were working as intended. It may be necessary to make minor amendments as a consequence, but any major amendments identified would be referred back to Council for approval. It was agreed that there should be Parish Council input into the Standards Committee and on 24 January 2013, the Council had confirmed the appointments of Councillor William Peter Long (Ashwell Parish Council) and Councillor Robert Logan (Great Ashby Community Council) as non-voting co-optees of the Standards Committee. The Role of Independent Person The Committee was reminded that the Council had also appointed an Independent Person (IP) and a Reserve Independent Person. As no complaints had been received, the IP role had not been used for its main purpose as set out in the legislation. Attached at Appendix C to the report was the role description for the IP. The Acting Monitoring Officer asked the Committee to consider and provide views on how proactive a role the IP could take, for example, in seeking to head off complaints before they were received (something the Acting Monitoring Officer currently did) or whether it should be a more reactive role (ie. being consulted when complaints were received, as required by the legislation). The Committee considered that the existing role description for the IP (and Reserve IP) was fit for purpose. It was felt that the role should promote good standards generally, and could perhaps be used in an advisory capacity after a complaint had been resolved, but should not be used for mediation purposes during the complaints process, as this would likely give rise to a conflict of interest should the matter not be informally resolved and the complaint proceed further. Registration of Members Interests In relation to registration of Members Interests, the Committee was informed that Section 29 of the Localism Act required the Monitoring Officer to maintain a register of interests for Members and publish it on the website. Section 30 required Members to register their interests within 28 days of taking office or they potentially committed a criminal offence. Given timing of the legislation, and that Members were elected by thirds, the Councils Code of Conduct required Members to register their interests within 28 days of adoption of the Code of Conduct (the NALC model code for Parishes required the same). The Register of Interests adopted by the Council only required Members to register what they were required to by legislation, and there were no additional interests that had to be included on the register as some Councils had chosen to do. The Acting Monitoring Officer advised that it had taken a significant amount of time and effort to get all Councillors (District and Parish, a total of approximately 270) to complete and return their Registers of Interest. Although strictly a breach of the code of conduct if the form was not returned within 28 days, it was decided not to enforce this point, but rather to adopt an approach of encouraging and assisting Members to return their forms. The final District Councillor returned their form in mid-December 2012 (ie. 4 months after the deadline for returning). The final Parish Councillor forms were returned in mid-February 2013 (ie. 6 months after deadline for returning). The Acting Monitoring Officer explained that if Members took this long to return the forms in future (after they were elected or re-elected), they would potentially be committing a criminal offence. This might focus minds, but consideration would also need to be given as to how this process was undertaken. Whilst in future there should not be a repeat of all Councillors having to complete their forms at the same time (and therefore the size of the task would be smaller), Members should be aware of the significant amount of time that the failure to complete the forms had placed on the Monitoring Officer Technical Support role in having to chase Members to comply. The Acting Monitoring Officer also reminded Members of the need to keep their Register of Interests updated should there be any changes in circumstances. The contents of the Register of Interest forms were compiled onto a spreadsheet (one for District and one for Parish) which was then uploaded on the Councils website as a pdf document. The Committee felt that, in future, it would be useful if a reminder from the Chairman and the Monitoring Officer could be sent to newly elected Members reminding them of the 28 day deadline for return of Registration of Interests Forms. It was also felt that there should be a similar verbal reminder, by way of a Chairmans Announcement, at each Annual Council Meeting following the District Council Elections. The Committee further considered that there could also be periodic reminders to Members in the Members Information Service (MIS) to keep their register of interests updated. Parish Councils The Acting Monitoring Officer referred to Appendix D to his report, which set out the type of Code of Conduct which had been adopted by each Parish Council. The vast majority had adopted the Code promoted by the National Association of Local Councils which, from the point of view of enforcement (a District Council function), would make consideration of complaints easier. Pre-determination The Acting Monitoring Officer stated that the issue that had attracted the most attention, certainly recently, was that of pre-determination (or perception of pre-determination). Section 25 of the Localism Act was set out in full at Appendix E to the report. The explanatory notes that accompanied the legislation set out the intention behind this part of the legislation: Section 25 clarifies how the common law concept of "predetermination" applies to councillors in England and Wales. Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgment fully and properly to an issue requiring a decision. Decisions made by councillors later judged to have predetermined views have been quashed. The section makes it clear that if a councillor has given a view on an issue, this does not show that the councillor has a closed mind on that issue, so that that if a councillor has campaigned on an issue or made public statements about their approach to an item of council business, he or she will be able to participate in discussion of that issue in the council and to vote on it if it arises in an item of council business requiring a decision. The Acting Monitoring Officer commented that there had been a great deal of discussion amongst local government lawyers as to how Section 25 should be applied. What was clear from those discussions was that the way Section 25 had been drafted (particularly the use of indicated and just because) did leave open that there were matters which could still be considered to be predetermination, which did not seem to meet the Governments intentions. One such detailed consideration had been carried out by Pannone Solicitors, with two paragraphs in particular showing the difficulty that the Council would face at times: 72. Clearly, the precise legal meaning of section 25(2) will have to await judicial interpretation which will no doubt appear following a challenge by someone (probably a commercial organisation) having the resources to test the measure in a particular situation where an authority has made a decision to that persons disadvantage. 89. However, whilst council members should certainly not be inhibited from vigorously fulfilling their political, democratic and representative role, they must equally be careful to take decisions properly and be seen to do so. Over cautious behaviour in this context by advisors and otherwise is unnecessary and inappropriate. But equally inappropriate is incautious (or rash) member behaviour which may reasonably give the impression that the member has already firmly decided an issue which falls yet to be determined. As in all situations, context is important. Quasi-judicial forums, such as licensing, need significantly more care than do more political forums where a range of different views may be expected. In any event, whatever the predisposition, a member should go into a decision meeting with an open mind, prepared to listen to argument and having careful and appropriate regard to the material provided concerning the proposed decision. The Acting Monitoring Officer advised that there was also doubt about whether Section 25 had actually changed the approach that the Courts had reached. Prior to the implementation of the Localism Act, the Court of Appeal case of R (Island Farm Development Ltd) v Bridgend CBC had provided clear comment on the approach councillors should take. It was felt that this was a good explanation: Councillors will inevitably be bound to have views on and may well have expressed them about issues of public interest locally. It would be quite impossible for decisions to be made by the elected members whom the law required to make them if their observations could disqualify them because it might appear that they had formed a view in advance. Whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and must be prepared to change their views if persuaded that they should. The Acting Monitoring Officer further advised that the consequences of a Member pre-determining a decision was that it provided a potential ground of legal challenge to that decision, by way of judicial review. This could result in a decision being quashed and the Council facing a bill for legal costs. It should also be noted that if a Member had taken part in the decision contrary to the advice of a statutory officer, acting in their statutory capacity, then they could lose their immunity from personal liability if that decision was overturned. It would therefore be necessary to look at issues on a case by case basis. Factors that would be considered included: What the Member has said/done (or is planning to say/do); Who the decision maker is; What the decision is likely to be; Whether there is likely to be a legal challenge to the decision; Who is likely to be able to challenge the decision; and What the consequences of a successful challenge would be. The Acting Monitoring Officer stressed that it should also be noted that on the same issue different advice could be issued to different Members, for example, if one had gone much further than another with their actions. The overriding responsibility that local authorities must take reasonable decisions after consideration of all material factors had not changed. The Committee discussed the issue of pre-determination, using recent examples as a basis for the discussion, including Churchgate and Luton Airport. It agreed that, with particular reference to the recent situation regarding Churchgate, the advice given by the Acting Monitoring Officer to Members at that time in respect of the matter should be fully supported. It was considered that it would be a good idea if Paragraphs 8.15 to 8.18 of the report, regarding pre-determination, were circulated to all Members of the Council via the Members Information Service (MIS). RESOLVED: (1) That he contents of the report be noted: (2) That the Acting Monitoring Officer be requested to review and amend the Member Code of Conduct, along the lines set out at Paragraph 8.4 of the report, for consideration at a future meeting of the Committee; and (3) That the role of the Independent Person (and Reserve Independent Person), as set out at Appendix C to the report, be agreed; (4) That, having discussed the issue of pre-determination, with particular reference to the recent situation regarding Churchgate, the advice given by the Acting Monitoring Officer to Members at that time in respect of the Churchgate matter be fully supported; and (5) That the Acting Monitoring Officer be requested to circulate Paragraphs 8.15 to 8.18 of the report, regarding pre-determination, to all Members of the Council via the Members Information Service (MIS). REASON FOR DECISION: To ensure the Council meets its statutory obligations and continues to improve its working practices in order to ensure good governance within the Council.