Improving standards in public life (hint: a good few of our councillors fail the suggested tests!)

“On 30 January 2019, the Committee on Standards in Public Life published its long-awaited report on local government ethical standards, reflecting evidence obtained via a consultation exercise carried out from January-May 2018.

The report makes 26 recommendations.

Below we highlight the top five that will be of interest to local authorities, in particular to monitoring officers.

Some of the recommendations could be implemented quickly without the need for primary legislation – most important of these is the recommendation concerning amendments to registrable interests.The wide-ranging report, which runs to over 100 pages, finds that while the majority of councillors and officers maintain high standards of conduct, there is clear evidence of misconduct by some – mostly bullying, harassment or other disruptive behaviour. The report also raises concerns about risks to standards under the current rules governing declaring interests, gifts and hospitality.

The report provides an excellent review of the current framework governing the behaviour of local government councillors and executives in England and then makes a number of recommendations to promote and maintain the standards expected by the public. While it identifies numerous points of best practice, it makes 26 separate recommendations for improvement.

Top five recommendations

The top five recommendations, likely to be of most interest to those in local government, are:

Updating the model code and extending it to parish councils: the report finds considerable variation in the length, quality and clarity of local authority codes of conduct. It therefore recommends enhancing quality and consistency by requiring the Local Government Association to create an updated model code. In a bid to help ease the burden on principal authorities (who must investigate code breaches by parish councillors), the report also recommends requiring parish councils to adopt the code of conduct of their principal authorities or the new model code.

Presumption of official capacity: perhaps the most arresting suggestion, the report recommends combatting poor behaviour by presuming councillors to act in an official capacity in their public conduct, including statements made on publicly-accessible social media. This arises from the perennial concern that the current understanding of public and private capacity is too narrow, undermining public confidence.

Extending the list of registrable interests: the report considers that current arrangements for declaring councillors’ interests are too narrow and do not meet public expectations, so it suggests refining the arrangements for declaring and managing interests, including extending the list of registrable interests to include two categories of non-pecuniary interest:

(1) relevant unpaid commercial interests such as unpaid directorships; and

(2) trusteeship or membership of organisations that seek to influence opinion or public policy. As this does not require primary legislation to be implemented, this is one recommendation which may soon be acted upon. We are particularly pleased to see written evidence submitted by members of Cornerstone Barristers was cited in relation to recommendation (iii): see more below.

A new “objective” test for when councillors must withdraw or not vote:

monitoring officers will be particularly interested in the discussion in the report about the need to update the test for when councillors are forbidden from voting or participating in discussion on matters in which they have an interest.

The report recommends the test be overhauled and that councillors be required to refrain from voting or withdraw whenever they have any interest at all – whether registered or not – that a member of the public would reasonably regard as so significant as to likely prejudice the councillor’s decision-making.

Strengthening the sanctions system:

the report considers the current sanctions insufficient and so recommends allowing local authorities to suspend councillors without allowances for up to six months, with suspended councillors enjoying a right of appeal to the Local Government and Social Care Ombudsman for investigation and a binding decision on the matter.

Other conclusions and recommendations

The report further concludes that there is no need for a centralised body to govern and adjudicate on standards and that various benefits exist to local authorities maintaining their responsibility for implanting and applying the Seven Principles of Public Life.

A number of other recommendations are likely to be of interest, including:

Assisting local authority monitoring officers, the “lynchpin of the arrangements for upholding ethical standards” (p 81), by extending disciplinary protections and offering additional training for the statutory officers who support them.

Giving local authorities a discretionary power to establish a standards committee to advise on standards issues and decide on alleged breaches and/or sanctions for breaching the code of conduct.

Abolishing the current criminal offences in the Localism Act 2011 relating to disclosable pecuniary interests, which are said to be disproportionate in principle and ineffective in practice.

Requiring local authorities to take a range of steps to prevent and manage conflicts of interest that can arise when decisions are made in more complex and potentially less transparent contexts such as Local Enterprise Partnerships and joint ventures.

Fostering an ethical culture and practice by requiring councillors to attend formal induction training by their political groups, with national parties adding the same requirement to their model group rules.

The report recognises that many of its recommendations would require primary legislation and therefore be subject to parliamentary timetabling. The remaining recommendations – in particular those relating to registrable interests (as mentioned above), statutory officers and formal training for councillors – could however be implemented relatively quickly.

The Committee intends to monitor the uptake of its suggestions in 2020.”

Robin Green, Estelle Dehon and Dr Alex Williams, all members of the Cornerstone Planning and Government teams, submitted written evidence item 281 to the committee. Their evidence was cited at p 45 of the report in relation to recommendation (iii) above, on registrable interests.

Robin and Estelle are also contributors to Cornerstone on Councillors’ Conduct (Bloombsury Professional, 2015), which identifies and explains the law following the changes implemented by the Localism Act 2011 in relation to the standards system governing the conduct of elected members in local government.”

https://www.localgovernmentlawyer.co.uk/governance/314-governance-a-risk-articles/39908-improving-ethical-standards

“Standards watchdog head Sir Kevin Barron resigns over cover-up fears” – there really one law for MPs and one for the rest of us …

Owl says: what did you expect from this government?

“The head of the Commons standards watchdog has resigned and accused parliament of “sacrificing transparency” by banning the identification of MPs who are under investigation.

Sir Kevin Barron announced yesterday that he would step down next month after eight years of chairing the standards and privileges committee. “I am proud of the changes made to the code of conduct over the years, including the recent introduction of a new system of investigation into bullying and sexual harassment,” he said. But he took a swipe at his fellow MPs, adding: “It is a shame that some of those changes had to come with the sacrifice of transparency.”

In July members voted in favour of plans to keep secret the details of all MPs under investigation. The change was part of reforms being pushed through in response to reports of sexual harassment and bullying at Westminster.

Sir Kevin fiercely opposed the motion, describing it at the time as a “step backwards in transparency”. Lay members of the committee said that the move was “a detrimental step in continuing to build the credibility of the reputation of the House”. Less than two hours after the vote passed, the parliamentary standards commissioner had removed the list of current inquiries from its website.

Since 2010 details of MPs under inquiry, as well as rulings, have automatically been published. The new rules mean that the commissioner will no longer automatically publish verdicts.

Sir Kevin said: “I feel that now is an ideal time for me to move on and focus on other projects.” He commended the work of the lay members of the committee.

Jeremy Corbyn was reported to the standards commissioner last month for allegedly failing to declare his contentious trip to Tunisia or reveal who paid for it. If the commissioner were to rule that he broke Commons rules on declaring an overseas trip, he would have to apologise to MPs. Under the new system, however, the public would not automatically know of the details of the investigation. A spokesperson for Mr Corbyn has said: “The cost of the trip did not meet the declaration threshold.”

Source: The Times (paywall)

“New MP’s EXPENSES SCANDAL: MP’s fiddling the books will be allowed anonymity”

“MPs who are accused of cheating on their expenses will be able to remain anonymous under rules it has emerged, just after a record ban was handed to Ian Paisley after he went holidays funded by Sri Lankan Government.

The Government has been accused of trying to push through the change under the radar.

It would hide the names of all MPs under investigation and the Government has been accused of “protecting the sensitiveness of politicians”.

Since the expenses scandal in 2008, all MPs under inquiry are automatically published on the website of the Parliamentary Commissioner for Standards.

The new system would mean the process would be anonymous.

Further, the commissioner would not be required anymore to automatically publish the verdicts.

However, the Commissioner could decide to make decisions and complaints public if it is deemed to be in the public interest.

Ian Paisley was handed a record 30-day suspension from the House of Commons after it was revealed by the Daily Telegraph he went on two family holidays funded by the Sri Lankan government.

If the new change was already implemented the public may not have found out about the case of Mr Paisley.

Andrea Leadsom, Leader of the Commons, published the results as she is also head of a cross-party group set up last year after the sexual harassment scandal.

The Committee on Standards, that analyses complaints made against MPs, has said it does not agree with the decision and opposes it.

It aims to table an amendment to block the changes before a vote by members.

The Committee said: “Any decision to step back from this will be perceived as conducting investigations in secret and a radical departure from a commitment to openness and transparency.

“It is important to publish at least a summary of each case she has concluded so that it can be shown that justice has been done and that MPs are accountable.”

Kevin Barron, the chair of the Standards Committee, said: “It would be a huge step backwards in terms of transparency to block the publication of all disciplinary cases, including cases outside of the new code for things, such as incorrect use of stationery or abuse of their expenses.”

The commissioner’s inquiries this year have included Jeremy Hunt and Craig Mackinlay.

Sir Alistair Graham, the former chair of the Committee on Standards in Public Life, said it would “seriously undermine our democratic system”.

https://www.express.co.uk/news/uk/991074/MPs-anonymous-expenses-new-plans

“How to maintain high ethical standards in local government: a perspective on the Committee on Standards in Public Life’s review so far”

Professor Colin Copus is a specialist advisor to the Committee on Standards in Public Life’s review into local government ethical standards. He writes here in a personal capacity:

“As academic advisor to the Committee on Standards in Public Life’s review into ethical standards in local government, I’ve been reflecting on the evidence I’ve heard so far.

The aim of the review is to test the robustness of the current system for maintaining high standards of public behaviour in local government. It is not a hatchet-job on councillors or intended to identify a problem where there is not one. Rather, the review will assess evidence to enable a judgement to be made about what, if any, changes are required to the current regime to ensure the maintenance of the highest ethical standards in local government.

My impression so far is that there are two competing themes emerging that pose a challenge to anyone considering how best to create the environment for strong ethical behaviour in local government. Those themes result in the question: do we nationalise or do we localise ethical standards in local government?

The danger in any review in local government is for rose-coloured spectacles to temper one’s view of past systems. It is nowhere more the case than in the ethical standards debate.

The evidence received by the Committee so far has highlighted some difficulties with the effectiveness of localising standards that came with the abolition of the standards board and the past regime associated with the board by the Localism Act 2011.

Concern has also been expressed about placing control over the ethical regime (and code of conduct) with councils themselves and about the apparent weaknesses in the sanctions available to councils when dealing with ethical and behavioural issues.

Moreover, the review has heard that local codes of conduct can result in councillors who sit on county, district and parish councils at the same time potentially being subject to three different codes. We do not yet know how widespread this issue is or if it generates regular and intractable problems for councillors and officers.

But the review has also heard that there is a recognition that centralising and nationalising ethical standards can result in a system that is remote, anonymous, lacking in appreciation of local differences of culture, tradition and behaviour.

Nationalising the system also prevents flexibility and responsiveness to specific local issues and at worse can result in councillors feeling on ‘trial’ and subject to a remote and bureaucratic system, which in itself can damage local democracy.

The issue of sanctions also looms large as does the role of independent input or oversight of the local process of assessing standards issues.

Sanctions pose a particular problem, not least because under the current arrangements, a party in power may be tempted to misuse their majority when imposing sanctions, but also because there is a line between what is appropriate for councils to be able to require and impose as sanctions and what is appropriate that the electorate themselves have at their disposal.

The question of sanctions is closely tied to that of oversight: even the power to suspend councillors from committees, council meetings or council premises and restrict resources for a short while may be subject to misuse. Robust safeguards and rights of appeal must, therefore, be available to councillors whose behaviour is not the real problem – but instead find themselves the subject of a complaint when they are an effective and vocal opponent of the ruling administration.

We also do not yet know how widespread such a problem may be. It is clear that the issue of sanctions, the system by which they are imposed and independent oversight and involvement, will be a key theme of the Committee’s assessment of the evidence in this review.

The hazard with any ethical regime – local or national – is how the political parties in local government respond to that regime.

Given that over 90 per cent of all councillors in England are from the Conservative and Labour parties and the Liberal Democrats, the temptation to use a set of rules and regulations designed to control councillors’ behaviour for party political advantage or to silence councillors from other parties, is considerable.

Any ethical regime must not provide a system that can be misused for party advantage or by officers to restrain troublesome councillors as both can damage free speech within local democracy.

It must also be remembered that ethical standards in English local government are among the highest across Europe and that results in a commitment by the overwhelming majority of councillors to public service and the public wellbeing.

The Committee has a difficult tightrope to walk to make observations and recommendations that provide an opportunity for all local authorities and the central government to finesse and reform the current system, to ensure the highest standards of ethical behaviour are maintained and strengthened in local government. It is well worth the walk.”

http://www.democraticaudit.com/2018/07/10/how-to-maintain-high-ethical-standards-in-local-government-a-perspective-on-the-committee-on-standards-in-public-lifes-review-so-far/

Council behaviour standards falling – says Society of Local Authority Chief Executives

“The risks of standards in local government being breached have increased since 2010 while many of the mitigations that were in place have been weakened or removed, Solace (the Society of Local Authority Chief Executives) has warned.

In its submission to the Committee for Standards in Public Life’s Review of Local Government, Solace said that since 2010 much had changed in local government which it believed was likely to have had a significant impact on the risk of poor ethical standards.

“For example, the financial environment has, over time, raised the stakes of councillors’ decision-making. Pressure on individuals has significantly increased as the consequences of their choices have become stark and more difficult. This pressure leaves individuals more vulnerable to inappropriate influence themselves or subjecting others to that type of behaviour. In a broader political environment which, as the work of the committee has already identified, sees increased intimidation of politicians and the demonization of experts, these risks are only heightened,” the submission said.

Solace also pointed out that local government was now operating in a significantly more complex operating environment.

“Every council has a wide range of strategic partners, commercial contractors and arms-length bodies. The governance picture is incredibly varied with individuals often required to act within different legal structure performing different roles.”

Solace highlighted how the simple client/contractor model of commissioning had been replaced by a multitude of business models operating in different services, to different geographies with different governance arrangements.
“While these innovative approaches are to be welcomed, for example, in the way they have enable additional investment to be unlocked or more system-based approaches to be utilised, this does risk arrangements becoming unclear, less transparent and blurred. Without continuous and consistent advice and counsel, innocent individuals can be left susceptible to crossing the ethical line, while others can take advantage of such ambiguity to operate inappropriately and unseen.”

On the weakening or removal of mitigations, Solace said the most significant change was the abolition of the Standards Board and the national Code of Conduct as part of the Localism Act 2012.

At that time the organisation recommended that its members worked with their elected members “to ensure a robust and proportional local systems were put in place, that the local codes of conduct which underpin each regime are clear, unambiguous and appropriate to local circumstances. Such an approach should ensure any code is practical while able to minimise the risk of external challenge.”

Although it has not conducted detailed research, Solace said a short review suggested that many local codes of conduct stuck tightly to the Nolan Principles but in a way that left little room for further explanation or context setting.

The submission continued: “In addition to a local code of conduct, a clear and transparent local process should be in place to administer complaints relating to the code. During the Localism Bill’s consideration in Parliament, Solace argued that a councillor panel with independent involvements was the most appropriate model for this. While the legislation has removed the requirement for such a body, Solace see no reason to change its view and would recommend a member panel should support the statutory ‘independent person’ in performing their duties.”

Solace also noted that the abolition of the Standards Board was not the only significant change that removed checks and balances relating to local government standards. “The abolition of the Audit Commission and a reduction in the ‘public interest’ activities of local external auditors have also removed an independent mechanism through which standards issues had historically been identified and dealt with.”

It meanwhile argued that the campaign to remove protections for senior officers, remove employment rights and recent senior figures undervaluing professional leadership in council had “eroded individuals’ ability to effectively speak truth to power”.

Solace argued that without adequate protection, senior officers in local authorities were “less likely to feel able to raise issues of governance and hinder openness and transparency within their authority, and that it was an erosion of the balance of local accountability which ensures high standards in local government on behalf of local tax payers”.

It suggested as an example that it was unlikely that successful criminal proceedings for corruption, as in the 2004 Lincolnshire County Council Cllr Speechley case, would have been successful if employment protection had not been afforded to the chief executive or monitoring officer.

The submission claimed that England had been left with a light touch approach to local government standards reliant on local codes, implementation and sanction. “Unlike the rest of the UK, there is an absence of national oversight, an inconsistency of sanction and a weakening of a range of mechanism that might reduce the risks of a decay of standards in other ways.”

However, Solace said it would not like to see a return to the “pernicious and over bureaucratic approach” of a national Standards Board. It did argue, though, that greater independent monitoring was required. “In an environment where evidence is unclear or anecdotal it is too easy to turn the other way and allow important challenges to remain out of sight.”

It argued that that inconsistency between different levels of Government was also unhelpful. “Parliament has done a great deal of work exploring the appropriate sanctions for elected politicians and it would seem appropriate that powers, including the power of recall, within local government mirror those introduced in Westminster.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=35433%3Arisks-of-standards-breaches-have-increased-while-mitigations-weakened-solace&catid=59&Itemid=27

EDDC has second-highest number of complaints about councillors and staff in Devon

North Devon Council recorded the most complaints at 87, with Exeter City Council recording the least with just two.

https://www.devonlive.com/news/devon-news/revealed-330-complaints-made-devon-1309919

“Westminster councillor resigns after receiving nearly 900 gifts and hospitality packages in six years”

Owl says: what is happening to Westminster council’s Monitoring Officer, Leader and Standards Committee? Nothing, so far.

And NO-ONE should be Chair of a Planning Committee for SEVENTEEN years!

“The deputy leader of Westminster city council has stepped down after it was revealed he had received nearly 900 gifts and hospitality packages over six years.

Robert Davis, a Tory councillor, was the chair of the borough’s planning committee until last year.

He has stepped aside as deputy leader and cabinet member for business, culture and heritage as an independent QC investigates his conduct.

Councillor Robert Davis has referred himself to the City Council’s monitoring officer and has decided to stand aside as Deputy Leader and Cabinet Member for Business, Culture and Heritage while the investigation is undertaken,” said Nickie Allen, the leader of Westminster City Council.

“Our residents need reassurance that the planning process is not only impartial, but is seen to be impartial,” she said, adding she had “asked the council’s chief executive to look at all aspects of the decision-making process to ensure planning is, and is seen as, an independent and impartial process.”

The Guardian revealed Mr Davis had received gifts and hospitality invitations 893 times over the last six years, which frequently came from property developers who were seeking planning permission.

Gifts and hospitality packages worth more than £25 must be declared and some of the items and invitations received by Mr Davis exceeded the figure.

The Cambridge graduate is the longest serving member of the council, having been elected in 1982. He was voted Conservative councillor of the year in 2014 and given an MBE in 2015 for his service to local and government planning.

“I think it’s important to recognise Robert Davis remains a candidate for the May election,” Adam Hug, leader of the Labour Group, told The Independent. “He remains a councillor.

“This move has been described as standing aside, with a clear view that if no legal wrongdoing is found he may return to his post. As he remains a candidate it is clear that the Tories believe what is known and not disputed is acceptable for them.”

He added: “Westminster Tories knew this was going on, did nothing for decades, and it is clear that unless legal wrongdoing is found, he may return to his post.”

In a statement, Mr Davis said: “Due to the ongoing interest and wrongful assertions regarding my time as chairman of planning I have decided to step aside from my roles as deputy leader and cabinet member for business, culture and heritage whilst the council investigates.

“In 17 years as chairman of planning committees which granted hundreds of applications and resulted in the council receiving substantial sums for affordable housing, public realm and other public amenity, I have at all times acted with the independence and probity required by my role.

“My desire to rigorously declare all meetings and hospitably, regardless of its nature, underpins this transparency and independence. It is trite to confirm that within these 17 years, I have got to know many of the developers and associated professionals who work in the city and help to develop Westminster into one of the most important economic centres in the country and home to over 280,000 people. Any suggestion or implication that I have done anything other than to further the interests of the city and its residents are baseless and strenuously denied.”

http://www.independent.co.uk/news/uk/politics/westminster-councillor-robert-davis-gifts-hospitality-bribery-investigation-corruption-planning-a8245626.html