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Paper 4 - 24 November 2000 Meeting

ASSOCIATION OF HAMPSHIRE AND ISLE OF WIGHT LOCAL AUTHORITIES

24 November 2000

LOCAL GOVERNMENT ACT 2000 - MODEL CODE OF CONDUCT FOR MEMBERS

Report by the Policy Manager

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RECOMMENDATIONS

(1) That Members consider the County Councilís report and additional comments; and

(2) That Members consider the case for developing a joint code for authorities in the Association.

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1. The Leader of Hampshire County Council has asked the Association to consider this report to the County Councilís Standards and Procedures Sub-Committee (attached).

2. The Sub-Committee approved the report and in particular option 2 on page 4 of the report in relation to the scope of the code of conduct.

3. The Sub-Committee added two additional comments:

(1) At paragraph 5.5 of the report the Sub-Committee agreed that any criminal offence which resulted in any sentence of imprisonment (whether suspended or not) should constitute a breach of the code, but that this should not apply to the imposition of a fine for the reasons given in the report. However, as this is wider than the provisions in Section 80 of the Local Government Act 1972, the Sub-Committee was of the opinion that any such breaches of the code should be either looked at initially by the Councilís Standards Committee or, failing that, any investigations or conclusions of the Standards Board should be referred to the Standards Committee for confirmation/implementation. This would allow the Standards Committee to take into consideration any mitigating factors before any actions were taken in respect of the breach.

(2) At Section 10 of the report the Sub-Committee would wish to say in the strongest terms that it is imperative that members have the ability to fully represent their constituents on all matters coming before the Council for decision, much as Members of Parliament do. This includes their ability to take part in discussions and to vote. It is, of course, accepted that if this coincides with a memberís personal pecuniary interest, this would debar them from the discussion and vote.

NICK GOULDER
Policy Manager

Date: 8 November 2000
Annex: 1
Contact: Nick Goulder - 023 8068 8431, E-mail hiowlang@hants.gov.uk

ANNEX

Hampshire County Council

Standards and Procedures Sub-Committee Item

30 October 2000

Local Government Act 2000 - Model Code of Conduct for Members

Report of Head of Corporate and Legal Services

Contact: Jeff Pattison, ext 7321

1. Summary

1.1 Following the Local Government Act 2000 which received the Royal Assent in July, the Department of the Environment, Transport and the Regions (DETR) and the Local Government Association have issued consultation papers on the Governmentís proposals for a new ethical framework for local authorities, including Police and Fire Authorities. The report indicates the Governmentís proposals, the implications that arise from them and a suggested response to the DETR and the Local Government Association. The closing date for comments is 31 October 2000.

2. Background

2.1 The Governmentís proposals for a new ethical framework for members are derived from the Nolan Committeeís investigation and report on the Standards of Conduct in Local Government in July1997. From this, followed the issue of a discussion paper by the Government "Modernising Local Government: a new ethical framework" and then in July 1998, the publication of the White Paper "Modern Local Government: in touch with the people" with which members will be familiar.

2.2 In his report, Lord Nolan noted that "the vast majority of councillors and officers observe high standards of conduct" but both he and the Government subsequently recognised the need for a new Code of Conduct as a way of clarifying the standards of conduct expected of members. The Governmentís proposals try to achieve this aim.

2.3 The main components of the Governmentís proposed new ethical framework consists of:-
(i) a set of general principles approved by Parliament which are to govern the conduct of councillors and co-opted members of local authorities;

(ii) a model code of conduct consistent with these principles which must be incorporated in local codes of conduct adopted by each authority and which councillors and co-opted members must promise to observe;

(iii) the establishment by every authority of Standards Committees which must contain at least one person who is independent of the authority and which will support and encourage the achievement of high standards of conduct;

(iv) a new national body, the Standards Board for England which will oversee the investigation of allegations that the code of conduct has been breached;

(v) a new statutory code of conduct for local government employees which will form part of their terms and conditions of employment.

3. General Principles and Model Code of Conduct

3.1 The general principles that the Government proposes should be laid before Parliament for approval are as follows:-

Selflessness - You are elected or appointed solely to serve the public interest. You should never use your position as a member to gain for yourself, your family or your friends, any financial benefits, preferential treatment or other advantage, or to confer such benefits, treatment or advantage improperly on others.

Honesty and Integrity - You should not put yourself in a position where your honesty or integrity is called into question by any financial or other obligations. As well as avoiding actual impropriety, you should avoid any appearance of it.

Objectivity - In carrying out public business, such as making appointments, awarding contracts or recommending individuals for awards and benefits, you should make decisions on merit.

Accountability - You are accountable to the electorate and the authorityís wider community for your actions and for the way in which you carry out your responsibilities as a member. You should co-operate fully and honestly with whatever scrutiny is appropriate to your office.

Openness - You should be as open as possible about your own actions and those of the authority, and seek to ensure that disclosure of any information held by your authority is restricted only in accordance with the law and your authorityís requirements on confidentiality.

Leadership - You should promote and support these general principles by leadership and example. You must respect the political impartiality and professional role of the authorityís statutory officers and other employees, and always act in a way which preserve public confidence in the authority.

Personal Judgement - Whilst you may very properly take account of the view of others, including your political group, it is your responsibility to decide what view to take and, if appropriate, how to vote, on any issue that is before you.

Duty to uphold the law - You have a duty to uphold the law, and to act on all occasions in accordance with the public trust placed in you.

Stewardship - You have a responsibility to play your part in ensuring that the authority uses its resources prudently and in accordance with the law.

3.2 As noted in paragraph 2.1, these general principles substantially follow those recommended by Lord Nolan. A number of principles have been extended beyond those recommended by Lord Nolan. These consist of the respect for political impartiality and professional role of officers under the leadership heading and the principles contained within the headings of personal judgement, duty to uphold the law and stewardship.

3.3 The County Council is specifically asked to comment on these principles and whether they should be added to or detracted from. It is suggested however that these general principles are sufficient as they stand to adequately reflect the fundamental values that should be the hallmark of public service in local government. The adoption of these principles will subsequently be reflected by the Government in the Code of Practice that they propose to publish and which will give practical advice on the basis of the principles.

4. Matters for Consideration

4.1 The first issue that the Government asked for a view on is whether or not there should be a single model code for all principal authorities, or whether it might be more appropriate to draw up separate models for different types of authority, but with a high degree of uniformity between them.

Comment

4.2 As one of the intentions behind the adoption of a model code of conduct for members is that the public are aware of the standards expected of their members, it is suggested that a single model code should be proposed for all principal authorities, as otherwise confusion might easily arise in the minds of the public as to which standards applied to which of their members and who may be the same person serving on different authorities.

5. The Scope of the Code

5.1 Another important issue is the extent to which the code will apply to members. It goes without saying that it will apply to all members of relevant authorities when they are engaged on the business of their authority, such as when attending committee meetings, site visits and public meetings organised by the authority. There are certain aspects of the general principles and the code such as honesty and integrity however that could be applied to a memberís behaviour outside their role on the authority. The implication is that what a member does in their private life might have an impact on the confidence placed in them and their authority by the general public. To what extent therefore should the activities of members in their private life be subject to a formalised code of conduct with the implication that breaches of the code may result in a member being either disqualified from office or suspended.

5.2 There are of course current provisions in Section 80 of the Local Government Act 1972 which refer to this issue. That provision applies to disqualify a member should they have been convicted of a criminal offence, which has resulted in them being sentenced to a period of imprisonment, whether suspended or not, of at least three months. It is possible therefore that the Governmentís proposals could result in their being a breach of the code of conduct in circumstances where the criminal offence and the punishment imposed is less serious than the one provided for in the Local Government Act.

5.3 There are three broad options that could be covered by the scope of the proposed code.

5.3.1 Option 1

The first option would be to restrict the scope of the code so that it related only to a memberís conduct in relation to formal council business. Thus a criminal offence short of that referred to in Section 80 above, would not constitute a breach of the code unless it related to the memberís role on the authority.

5.3.2 Option 2

The second option would be to recognise that any form of criminal behaviour by a member, regardless of its seriousness, or whether it was connected with council business, would form a breach of the code on the assumption that it would affect public confidence in the member and the authority. In this option, although any criminal offence would be a breach of the code, the relative seriousness of the offence would determine the extent of the sanction against the member, which could range from disqualification to suspension to a reprimand.

5.3.3 Option 3

The third option would be to extend the code further still, by extending the scope of the code to cover civil as well as criminal offences. In this option, such matters as minor traffic violations and environmental matters, where for example a member might be served with a notice to correct an action, but which falls short of a criminal offence, could constitute a breach of the Code.

Comment

5.4 It is undoubtedly true that the actions and activities of a member, carried out in his or her personal capacity and not directly related to the business of the local authority, can have an adverse impact both upon the member concerned, the local authority represented and the reputation of local government as a whole. However, to suggest that every, even the most trivial, criminal and civil actions can have this effect in the eyes of the public, is stating the principle too highly. It also suggests that members would have to comply with a code of conduct that has as it aims a state of perfection, but which in the real world, does not exist, and is certainly not a principle which applies to Members of Parliament.

5.5 It is therefore suggested that whereas the third option places too high a duty on members, the first option is also inappropriate in that it excludes the possibility of serious criminal activities unconnected with a memberís Council business, counting against the conduct of a member. It is therefore suggested that the second option is more appropriate, but that the seriousness of the offence must be taken into account in determining whether or not there is a breach of the code of conduct. It is accepted that this might be difficult to achieve, although it is recognised that an attempt to do this is contained in Section 80 of the Local Government Act 1972. One view is that setting the limit at offences which result in sentences of three months imprisonment (whether suspended or not) is too high a watershed and should be reduced. Perhaps any term of imprisonment (whether suspended or not) would be a more appropriate watershed. In addition to this, the Government might also consider having another criteria based on the level of fine imposed in respect of any offence. The level of fine would need to be assessed, but perhaps one means of doing this would be by relating it to the national average weekly wage at any point in time. A strong argument against this, however, is the current proposal that the level of fine for the same offence should reflect the relative wealth of the offender. This could result in an impecunious member in respect of the same offence being fined at a level which did not breach the Code, whilst a more wealthy member was fined at a level which did. This would be unfair and is not therefore recommended.

6.Member representation on Outside Bodies

6.1 The current National Code of Conduct for Members requires them to comply with the code whilst undertaking work for another body at the nomination of the authority. The question therefore is the extent to which the new proposed code should apply to members undertaking such duties.

6.2 As the public will probably not see the fine dividing line between a member undertaking business on behalf of the authority and separately on behalf of an outside body at the nomination of the authority, it is suggested that the general principles contained in the code should apply to members on outside bodies. One exception would be the situation where the outside body itself has its own code of conduct which the member whilst undertaking business on behalf of that body, is required to comply with. This would be particularly relevant where a member is appointed to a charitable body or trust, where the member trustee must comply with the rules relating to charities.

7. Reporting Breaches of the Law or the Code

7.1 Views of the Authority are also sought as to whether the Code should contain a requirement on members to bring to the Monitoring Officerís attention instances where they believe that the law relating to local government or the Authorityís Code of Conduct have been breached. Such a proposal would be subject to suitable safeguards to protect people who "blow the whistle" in this way. It would follow from this proposal that a member who chose to report his/her concerns outside these procedures would risk being found in breach of the Code.

Comment

7.2 It is suggested that there are good reasons for implementing this proposal such as, for example, in the case where members have concerns about possible illegal activities. The Waterhouse Report into abuses in certain Social Services residential homes in Wales strongly suggested that members and officers alike should have a duty imposed on them to report such concerns.

7.3 It is therefore recommended that the Code should include a requirement on members to bring such concerns to the attention of the Monitoring Officer. The Monitoring Officer could then take a decision as to the seriousness of the allegation and decide whether or not it should be then immediately referred to the Standards Board or, indeed, to the Police.

8. Registration and Declaration of Interests

8.1 It is now proposed in the Code to draw a welcome distinction between the need for members to register and declare interests which can be clearly seen to be of a financial and personal nature on the one hand, and interests which in reality, although a member might firmly hold, are representative of the public interest and not a personal or private one. An example is given of a Councillor involved with a particular interest group or cause on an issue that divides the community, or one which champions the interests of persons with disabilities. Although such public interests may well need to be declared so that everyone is aware of the standpoint taken by the member, there would not be the need to withdraw from the meeting and thereby fail to vote on the issue.

9. Financial Interests

9.1 There are no proposed significant changes to the way that a memberís financial interests would need to be registered. Furthermore, if an item appeared before the Authority on which the member had a personal financial interest, then the member would need to declare that interest at the meeting and take no further part in the discussion on the matter. This is the position as it exists at the present time and the only proposed changes would be to clarify that it extends to a memberís spouse, partner or members of his or her household. Although this proposed extension is not within the Code at the present time, it is the subject of advice from the Local Government Ombudsman that such interests should be treated in the same way as a memberís own financial interests. It is not anticipated that members would have any difficulty with the present position regarding the registration and declaration of financial interest being retained.

10. Public Interests

10.1 With regard to public interests as noted in paragraph 8.1 above, it is proposed that this category of interest should encompass a range of activities outside the Authority which members often undertake either as part of their public role or as a part of their public life. Such interests might include membership of a public body at either national or local level or of a charity, voluntary body or other organisation formed for a public purpose, whether or not appointed to that body by the Authority. In these circumstances, although a member would need to register their interest, when the matter came before the Authority for discussion the member would be allowed to declare that interest, but would then be able to participate fully in the discussion, including voting on the matter in question. This represents a welcome loosening up of the existing proposals.

10.2There is also, however, a proposal to adopt a more restrictive approach where the matter under discussion would confer a material benefit or dis-benefit on the body in which the member has an interest. However, it is suggested that to adopt such an approach once again seriously clouds the issue as to whether a member should or should not decline to take part in the discussion and vote on such matters and should not be supported.

11. Private Interests

11.1 This is the final category of interests which, on the basis of the present Code, may result in a member declaring an interest and taking no part in the discussion of the item when it comes before the Authority. There are a range of such private interests which might come within this category, such as membership of sports or social clubs, hobbies or other leisure groups. The same approach is suggested with regard to this category as for the public interests, except that with these private interests it is not suggested that the matters need to be registered. Again, it is proposed that if an item of business comes before the Authority relating to the particular memberís private interest, then the member should declare it, but can take a full part in the discussion and can vote on it. The same variation to further restrict this proposal is given as it is with the public interest category but, again, it is suggested that to avoid further confusion arising, this more restrictive variation should be rejected.

12. Declaration of Interests

12.1 A further proposal is made regarding the extent to which a member declares an interest. It is proposed that if a member does need to declare an interest, then the member should give an indication of the nature of that interest. This would support the principle of openness so far as this is capable of being achieved and is therefore to be supported

13. Gifts and Hospitality

13.1 Although many authorities maintain a register of gifts and hospitality received on a voluntary basis, this is not a requirement of the existing Code. It is suggested that this should now be incorporated as a part of the Code. Two further questions arise from this, one being whether there should be a de minimus level which the Authority sets before the duty to declare arises and also whether or not there should be a further value on gifts received which should automatically become the property of the local authority. Although this does not constitute a major issue at the County Council, it is suggested that it would be reasonable for the Authority to assess such a level.

14. Conclusion

14.1 The report contains details of proposals being suggested by the Government on those general principles which should be complied with by all members of local authorities together with the suggested Code of Practice. The need for this has been expressed in the past by many local authorities because of the inadequacies of the existing Code, which has often been referred to as complicated and difficult to understand and apply in the particular circumstances that often arise with members. It is suggested that the general principles and the proposals suggested for the Code of Practice referred to in the report can be welcomed. It is therefore suggested that this report and any further comments which members make at the meeting should be forwarded to the Department of the Environment Transport and the Regions and the Local Government Association as the County Councilís response to the Consultation Paper.

Recommendations

1. The contents of the report be noted and a copy of the report be forwarded to the Department of the Environment Transport and the Regions and the Local Government Association as the County Councilís response to the Consultation Paper, together with any further comments that the Committee agree at the meeting.

Section 100D - Local Government Act 1972 - Background Papers

The following documents disclose 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.

N.B. the list excludes:

1. Published works.

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

Last update: 22/11/2000
Author: Nick Goulder, Policy Manager

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