General principles of conduct and draft model code of conduct

Report: 15
Date: 19 April 2001
By: Clerk

Summary

This report:

• gives details of the Government's final proposals for general principles of conduct in local government; and
• invites comments on the Government's proposed Model Code of Conduct.

A. Recommendation

That the Authority notes the Government's final proposals of a statement of general principles and comments on the proposed Model Code of Conduct.

B. Supporting information

General Principles of Conduct

The Local Government Act 2000 introduced a new ethical framework for local government. The first stage involved consultation on general principles of conduct expected of members of relevant authorities, including police authorities. The Association of Police Authorities (APA) responded to the consultation and most of their concerns appear to have been taken on board. The final proposals for general principles are attached as Appendix A and are intended "to articulate the fundamental values of public service that underpin the conduct of members of relevant authorities". The Government had hoped to lay these principles before Parliament in the spring, although the actual timescale is not yet known.

Draft Model Code of Conduct

The general principles form the basis for a new model code of conduct which has the aim of bringing together for the first time and in one place clear rules of conduct with which members of authorities will be expected to comply. The model code will replace the current National Code of Local Government Conduct. It aims to be preventative rather than promotional and to lay down a set of enforceable minimum standards for the way members should conduct themselves.

Last July, the Secretary of State invited the Local Government Association (LGA) to draw up proposals for a model code. The LGA consulted widely on this and its suggestions as to what a code should or should not include have helped inform the Government's proposals. At that stage the APA made a response on behalf of police authorities. Its argument that there should be a separate code for police authorities has not been accepted by the Department for the Environment, Transport and the Regions (DETR).

This is not a fundamental drawback, although it does mean that some references in the code are not relevant to police authorities (such as to overview and scrutiny committees or to individual members making executive decisions). In most other respects, the APA's concerns appear to have been addressed.

The draft code is now out for consultation. The APA will respond on behalf of police authorities and have asked for any comments by 20 April. The Government hopes to produce a final code of conduct in May or June so that authorities can adopt their own code of conduct from the Summer of 2001 and certainly within six months from the date of the order issuing the model code.

The draft model code is attached as Appendix B. A description of the main elements are given below. Some comments are given in italics and members are invited to make any comments they would want included in the MPA's response. Overall, I would suggest that the MPA would want to welcome the model code. It is a clearer and more joined up expression of what is required in public service than the previous code. All of its provisions will be mandatory but it is open to authorities to include additional provisions in their own code.

Public duties and private life

Paragraph 1 provides that the code applies to a member whenever s/he conducts the business of the authority. However, it also recognises that the need to maintain public trust means that some aspects of private behaviour must be covered by the code:

• a member must not commit a criminal offence or act in a way that might reasonably be regarded as bringing the authority into serious disrepute (paragraph 4);
• a member must not use his or her position improperly to the advantage or disadvantage of any person (including themselves) (paragraph 5).

Criminal offences can vary widely in seriousness and in their reflection of a person's suitability to hold office. Serious offences, resulting in a prison sentence of three months or more will, as now, result in automatic removal from office. For other offences the national Adjudication Panel will decide what, if any, sanctions are appropriate.

The question of what misconduct might bring an authority into serious disrepute is clearly more subjective, but this provision recognises that some activities may have a damaging effect on the public's confidence in the member or their authority. The Standards Board for England and the Adjudication Panel will need to consider how a reasonable person might view the activity.

It is suggested that the MPA should support the Government's view that some aspects of a member's private life can impact on their public role. This may be particularly relevant for police authorities – under the Police Act 1996 the code of conduct governing police officer behaviour applies whether an officer is on or off duty and the same standards ought to apply to police authority members.

Promoting equality

Paragraph 2 sets out minimum standards for promoting equality – that a member must not discriminate unlawfully against any person and must treat people with respect regardless of race, age, religion, sexual orientation and gender. This paragraph also includes provision against members doing anything to compromise the impartiality of an employee of the authority.

As mentioned in paragraph 2, the Government is aiming for a set of minimum enforceable standards. It is probably for this reason that the emphasis in the code is on unlawful discrimination. When they come to adopt the Authority's code of conduct, Members may wish to widen this provision to include a statement of intent, for instance by saying that members should lead by example in promoting of the principles in the MPA's equal opportunities statement.

The second element of this paragraph – regarding the impartiality of employees – is a general statement of principle. It places a, possibly unreasonable, onus on members to appreciate when they are compromising this impartiality. A fuller description of the kinds of ways this might occur would be helpful.

Making reasonable decisions

Paragraph 6 requires members not to act unreasonably when making decisions and to give reasons for those decisions in accordance with the authority's requirements. Members must also have regard to any relevant advice given by the monitoring officer or chief finance officer (the MPA's Clerk and Treasurer).

'Unreasonable' in this provision has both a legal sense (based on case law such as Wednesbury) and the common meaning of not being guided by or based on good sense and being beyond the limits of acceptability.

Reporting failure to comply with the code

Paragraph 7 requires a member to report to the Standards Board for England and to the monitoring officer any conduct by another member which he or she believes involves a failure to comply with the code.

There has been some previous debate on whether it is reasonable to require a member to report what he or she believes to be non-compliance by another member. On balance, members may agree that this requirement is correct. However, because of the sensitivities involved, members may feel that a member should report concerns to the monitoring officer in the first instance, who should then be responsible for raising the issue with the Standards Board.

Declaring interests

Part 2 of the code addresses potential conflict between members' public role and private interests. It aims for a greater transparency and openness than the previous code and to clarify some grey areas, for instance:

• the previous rather unsatisfactory distinction between pecuniary and non-pecuniary interests
• how members who sit on management boards of charities etc in a personal capacity should treat this when an authority is considering issues in relation to that organisation

Essentially the code proposes a two stage process:

A member must consider whether he or she has a personal interest in an issue being discussed. A personal interest is one which might reasonably be regarded as affecting the well-being or financial position of:

• himself, a member of his family or a friend; or
• a body which employs those persons or for which those persons have any degree of ownership, control or management;
• to a greater extent than any other council tax payer, ratepayer or inhabitants of the authority's area.

Personal interests must be disclosed before the issue is discussed or when a personal interest becomes apparent.

A member must then consider whether this is a "prejudicial interest". This is defined as one which a member of the public with knowledge of the relevant facts would regard as so significant that it could prejudice the member's judgement of public interest.

If a member concludes that the interest is prejudicial they should withdraw from the meeting.

The Government is inviting views on whether the definition of "personal" and "prejudicial" interests are clear and workable and whether it is reasonable to require a member to declare the nature as well as the existence of a personal interest.

Any provision on members' interests must always seek to strike the balance between being too restrictive (to the extent that members cannot satisfactorily carry out their public duty) and protecting public confidence. Members may feel that the provisions of the model code achieve that balance and do take account of the fact that non-financial interests can be as significant as financial ones. The onus for deciding whether there is an interest must remain with the member, although the officers can, of course, give advice.

Members may also wish to support the Government's view that both the existence and the nature of the interest should be declared, in the spirit of openness.

Register of Members' Interests

Part 3 of the code deals with the register of members' interests which authorities are required to maintain. The main difference in the proposals is that they now include specified non-financial interests as a requirement.

The code also provides that members must notify the monitoring officer of the existence and nature of any gifts or hospitality received over a certain value – the Government invites views on what that value should be.

It is really a case of picking a figure out of the air. Members should not be so restricted that they have to declare everything – for instance lunch provided during a site visit or, perhaps, a courtesy diary. Gifts or hospitality may be considered more significant when they exceed, say, £20 or £30. Members may also agree with the Government that gifts over the specified threshold should become the property of the authority.

Next steps

Members are asked for their views on the proposed model code and whether they would agree with the comments in italics. These views will then be passed to the APA for inclusion in its composite response.

Once the Government has finalised the model code, a further report will be made to the Authority on the adoption of its own code of conduct and whether it would wish to include any further provisions of its own.

C. Financial implications

There are no financial implications for the Authority in this report.

D. Background papers

• Local Government Act 2000
• The General Principles and Model Code of Conduct issued February 2001
• APA Circular 12/2001

E. Contact details

The author of this report is Simon Vile, MPA.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix B: Schedule - The Model of Code of Conduct

For Appendix B please contact MPA.

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