Review of the Code of Conduct

Report: 8
Date: 24 May 2005
By: the Chief Executive and Clerk

Summary

The Standards Board for England is carrying out a review of the Members’ Code of Conduct and is consulting on changes that authorities would like to see.

A. Recommendation

1. That the Committee agrees the outline of a response to the Standard Board for England’s consultation paper; and
2. that the full Authority be recommended to agree the amendment to the MPA’s Code of Conduct proposed in para 1.2 of Appendix 1, subject to the agreement of the Standards Board for England.

B. Supporting information

1. The Code of Conduct was introduced in November 2001 as part of the Local Government Act and applies to all local authorities, including police authorities. The MPA adopted the model Code, without addition, in April 2002.

2. At the request of the Government, the Standards Board for England (SBE) is now carrying out a review of the Model Code, and any proposals will be put to the Office of the Deputy Prime Minister. The purpose of this is:

• To review the effectiveness of the Code
• To explore ways to clarify, improve or simplify it

3. The SBE has posed a number of questions in its consultation document. These are set out in Appendix 1, with a brief summary of the issues and MPA officer comments. Members are asked to consider these questions and agree views to be included in the MPA’s response. The consultation document is attached as Appendix 2.

C. Race and equality impact

The Code of Conduct requires members to promote equality by not discriminating unlawfully against any person and to treat others with respect. As suggested in the officer comments in the appendix, the Code ought to reflect at least the general duty imposed on public authorities by the Race Relations (Amendment) Act. It is further suggested that the MPA’s own Code should be amended to reflect both this legal requirement in terms of race and also the MPA’s equality policy which has widened this duty to apply to all six diversity strands. This proposal is addressed in greater detail in para 1.2 of the appendix.

D. Financial implications

None.

D. Background papers

None

E. Contact details

Report author: Simon Vile, MPA.

For information contact:

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

Appendix 1

Standards Board for England Consultation on the Code of Conduct

1. General Principles

1.1 The SBE’s view is that the ten principles of public life (on which the Code is based) should be included as a preamble to the Code as they are fundamental to its interpretation. They would not form specific grounds for investigation but would provide a link between ‘inspirational’ and practical standards for members. This view is supported by the Committee on Standards in Public Life (the originators of the ten principles)

Q.1 Should the ten general principles be incorporated as preamble to the Code of Conduct?

Q.2 Are there any other principles that should be included?

Officer view: yes it would be helpful to emphasise the importance of the ten principles by including them in the Code. In terms of other principles, it is felt that the Code should as a minimum refer to the general duty imposed on public authorities by the Race Relations (Amendment) Act to:

• Eliminate racial discrimination
• Promote equality of opportunity; and
• Promote good relations between persons of different racial groups

The MPA’s equality policy has widened this duty so that it applies to all six diversity strands. It reads to:

• Eliminate discrimination
• Promote equality of opportunity; and
• Promote good relations between persons of different groups

The Code is intended to be preventative rather than promotional in that it seeks to lay down a set of enforceable minimum standards for the way members should conduct themselves. It may be, therefore, that a reference is more appropriate in the preamble rather than the body of the Code.

The officers suggest that this proposal should be included in the consultation response. However, it is also considered that this should be added to the MPA’s Code now. The Authority is not permitted to remove any provision of the Model Code, but it can add to the Model Code, subject to the approval of the SBE. It is proposed, therefore, that para 2 of the MPA’s Code should be amended to read:

“A member must –

1. promote equality by not discriminating unlawfully against any person;
2. treat others with respect; and
3. not do anything which compromises or which is likely to compromise the impartiality of a police officer or those who work for, or on behalf of, the Authority.

With regard to (a) above, a member will take account of the general duty of the Race Relations (Amendment) Act and the requirements of the MPA’s equality policy to:

• Eliminate discrimination
• Promote equality of opportunity; and
• Promote good relations between persons of different groups”

2. Behavioural issues

2.1 Treating others with respect: Para 2 of the Code requires members to ‘treat others with respect’. This is a subjective term and the SBE’s experience is that what is perceived as disrespect often varies widely, for instance between individuals and local or regional cultures. However, the SBE is concerned that a tighter definition might also reduce flexibility. The Board recognises that members are entitled to express their views about ideas or groups provided that their comments do not breach discrimination legislation or cross the line into overly personal attacks.

2.2 Bullying: the SBE has received a number of complaints about members bullying other members or officers. Although ‘treating others with respect’ covers bullying, the Board consider a new provision specifically addressing bullying will be of significant symbolic and practical value, to show that bullying is an issue that should specifically be dealt with. The SBE proposes a provision based on the ACAS definition:

“Bullying may be characterised as a pattern of offensive, intimidating, malicious, insulting or humiliating behaviour; an abuse or misuse of power or authority which attempts to undermine an individual or group of individuals, gradually eroding their confidence and capability, which may cause them to suffer stress.”

Q.3 Should the test for disrespect remain broad or more strictly defined?

Q.4 Should the Code include a provision dealing with bullying? If so, is the ACAS definition sufficient?

Officer view: That it is best to leave the test for disrespect broad, with the meaning of ‘respect’ clarified through application. The inclusion of a bullying provision is supported – the ACAS definition is a good starting point but the provision should also address one-off cases of bullying.

2.3 Confidential information: Para 3(a) of the Code provides that a member must not disclose information given in confidence by anyone, or information acquired which he or she believes is of a confidential nature, without the consent of the person authorised to give it, or unless required by law to do so.

There have been calls to amend this provision partly because of the requirements of the Freedom of Information Act and partly because some authorities are categorising more information as confidential than the provision justifies. The SBE suggests amending the provision to state that a member should not disclose information which was lawfully confidential or exempt under existing legislation. This would mean it would not be a breach of the Code to disclose information where a decision to treat a matter as exempt or confidential was itself demonstrated to be unlawful.

2.4 Public interest defence: The SBE is keen to ensure the Code is used to protect information which is properly confidential and not information withheld for reasons of expediency or convenience. Some members have claimed that they were forced to suppress information that they believed should have been disclosed for public interest reasons. This has led to calls for a ‘public interest defence’ to be included within the Code. The SBE does not express a view on this, other than to say that consideration would need to be given as to whether such a provision should be a recognised ground of defence or an argument in mitigation of a breach.

Q.5 Should the Code refer explicitly to a public interest defence for members who believe they have acted in the public interest by disclosing information?

Q.6 Should the Code include only lawfully exempt or confidential information to make clear that it would not be a breach to disclose information the authority had withheld unlawfully?

Officer view: explicit reference to a public interest defence is not supported – allowing the point to be put in mitigation is felt to be preferable. The proposal in question 6 is supported.
2.5 Disrepute and private conduct: Para 4 of the Code states “A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute.” The issue is whether a member’s private life should be of concern in relation to their public office. The SBE continues to believe that the provision should link a member’s conduct in their private life to its relevance to the performance of their public office. The SBE tends to take account of three areas of private conduct:

• Unlawful behaviour (which would result in court action, police cautions or regulatory infringements)
• Private behaviour that brings into question the member’s fitness to carry out their official duties
• Private behaviour that undermines public confidence in the member’s ability to carry out their official duties.

Q.7 Should the disrepute provision relate only to official activity or should it continue to relate to a member’s private life?

Q.8 If the latter, should it continue to be a broad provision or should it be restricted to criminal convictions or acknowledged criminal conduct?

Officer view: the disrepute provision should continue to relate to the member’s private life where that is relevant to his or her performance in public office. The current broad provision is favoured.

2.6 Misuse of resources / political purposes: Para 5 (b) of the Code states that members must act in accordance with the authority’s requirements when using or authorising the use of resources. Specifically resources must not be used for political purposes other than those necessary for carrying out the duties of their office.

The majority of complaints about misuse of resources have alleged inappropriate use of IT and other electronic resources. However, the SBE does not consider that the Code should be changed to make a distinction between electronic and other resources. With regard to misuse for political purposes, the SBE recommends changes to achieve consistency and between the Code and the legislative framework, by including in the Code the following three issues as breaches:

• A breach of the 1986 Code of Recommended Practice on Local Authority Publicity
• A breach of any local protocol
• Misuse of resources, in particular officer time, for inappropriate political purposes

Q.9 Do you agree that the Code of Conduct should address the three areas set out above (in relation to misuse for political purposes)?

Q.10 If so, how could we define ‘inappropriate political purposes’?

Q.11 Do you agree that the Code should not distinguish between physical and electronic resources?

Officer view: Support for inclusion of the three areas suggested by the SBE. A definition of ‘inappropriate political purposes’ could be ‘purposes intended to secure an advantage or disadvantage to any political party or identifiable political cause’. There should be no distinction in the Code between physical and electronic resources.

2.7 Duty to report breaches: Paragraph 7 of the Code requires members who have a reasonable belief that a fellow member has breached the Code to make a complaint to the SBE as soon as practicable. The intention behind this provision was to ensure that members could not ignore colleague misconduct and to protect whistle-blowing members.

Consideration is being given to changing this provision. On the one hand, it is suggested that it encourages inappropriate, malicious and politically motivated reporting, taking up much SBE time and resources. On the other hand the provision protects whistleblowers and gives effect to the spirit of openness and accountability underpinning the Code. Various options are suggested:

• That the paragraph be deleted completely, leaving it to the integrity of members to report serious failures.
• That the paragraph should only apply to ‘serious’, ‘significant’ or ‘material’ failures to comply with the Code.

The current wording in the Code, if strictly interpreted, requires reporting of potential breaches and those that have been resolved. The SBE suggest amending the wording as follows:

‘A member must, if he or she becomes aware of any breach of the Code of Conduct by another member which he or she:

1. reasonably believed to be serious or significant; or
2. on the basis of the facts known to them at the time, should reasonably have concluded to be serious or significant;

make a written allegation to that effect to the Standards Board for England as soon as it is practicable for him or her to do so.’

• That the paragraph should only apply to misconduct in public life.
  The current provision requires reporting of misconduct in breach of the Code arising in a member’s private life. The SBE consider removing the requirement in respect of private lives would reduce minor matters reported. There would still be a link to activity within a member’s private life via the disrepute provision.
• That members should have a duty to report breaches to the Monitoring Officer or Standards Committee chair who would decide whether the matter was sufficiently well founded to be referred to the SBE

Both the SBE and the government reject this idea of a local filter for complaints and take the view that all referrals should go via the SBE. They cite the possibility of a conflict of interest if the matter is later referred to the Monitoring Officer or Chair of Standards Committee who acted as a filter originally. They also suggest the likelihood of individual complaints being reported locally and nationally at the same time leading to duplication of resources and potential prejudice in the way the complaint is handled.

• A specific provision making false allegations a breach of the Code

The SBE complains of spending resources on dealing with tit-for–tat and malicious complaints but also argue against inclusion of such a provision for fear of discouraging genuine complaints.

2.8 Protection of whistleblowers: It has been suggested that a paragraph prohibiting intimidation of complainants should be included. The SBE believes that the existing provisions and other legislation are sufficient to protect whistleblowers.

Q.12 Should paragraph 7 be retained in full, removed altogether or somehow narrowed?

Q.13 If you believe the provision should be narrowed, how would you define it?

Q.14 Should there be a further provision about making false, malicious or politically-motivated allegations?

Q.15 Does the Code need to provide effective protection for complaints against intimidation, or do existing sections of the Code and other current legislation already cover this area adequately?

Officer view: In favour of retaining para 7 in full. On balance it is felt that there should be a further provision about making false allegations, although SBE guidance will need to spell out the distinction between unproven and false allegations to avoid deterring genuine complainants. With regard to question 15, the Code is considered adequate in its current form.

3. Registration and Declaration Issues

The SBE address a number of issues in relation to the registration and declaration of interests.

3.1 Definition of ‘Friend’: this term is not defined in the Code, unlike others such as ‘relative’ and ‘partner’. The SBE believes that trying to define ‘friend’ is likely to lead to more contention rather than less.

Q.16 Does the term ‘friend’ require further definition in the Code?

Officer view: No, it is best left as it is.

3.2 Wellbeing: the Code refers to ‘wellbeing’ in the context of declaring an interest. The SBE is not in favour of defining this term in the Code, preferring to do this by way of guidance.

3.3 Inhabitants of an authority’s area: Para 8 of the Code states that a member must regard himself as having a personal interest if a decision would affect him to a greater extent than other inhabitants of the authority’s area. The SBE says that this leads to some members having to make an unnecessarily large number of declarations and considers that there should be a new definition of personal interest which is narrower so that members are not required to declare interests shared by a substantial number of other inhabitants.

Q.17 Should the personal interest test be narrowed so that members do not have to declare interests shared by a substantial number of inhabitants in an authority’s area?

Officer view: this does not appear to be an issue for MPA members. The SBE have not made a particularly strong case for, effectively, weakening this requirement and the reference to ‘substantial’ would require clearer definition if this is not to be problematic.

3.4 Public Service Interests: Para 10(2) deals with situations where members have interests arising from service on other public authorities or public bodies (such as a local Council). Currently these automatically give rise to a personal interest and members have to consider whether that interest is prejudicial. The SBE considers that this latter point places an onerous, ongoing and to a large extent unnecessary responsibility on members. It therefore proposes the development of a ‘public service interest’. This would be subject to the prejudicial interest test but otherwise there would be no need to declare it at meetings provided it was recorded in the register of interests. As a result paras 10(2) (a-c) would be removed from the Code.

Q.18 Should a new category of ‘public service interests’ be created which is subject to different rules of conduct?

Officer view: Yes. There has always been some uncertainty about whether 10(2) is an exemption or not, so this will help to clarify the position.

Q.19 If so should public service interests which are not prejudicial have to be declared at meetings?

Officer view: no

Q.20 Should para 10(2) (a-c) be removed from the Code

Officer view: yes

3.5 Membership of public bodies, charities and lobby groups: The SBE makes a distinction between these and other more directly personal interests. It proposes that public service interests and interests arising from membership of charities and lobby groups should only be prejudicial in the following situations:

• The matter has a direct impact on the body concerned (e.g. grant of money)
• The member is involved in regulatory matters in a decision-making capacity where particularly high standards of probity and transparency are required.

In these situations, the member would remain in the room and participate in the debate but would need to withdraw before the vote is taken.

Q.21 Should less stringent rules apply to prejudicial interests from public service and membership of charities and lobby groups?

Officer view: No

3.6 Prejudicial interests: a member’s right to make representations:

Paragraph 10.2 of the Code requires members with a personal interest to consider whether or not the interest is prejudicial by considering whether a reasonable member of the public with knowledge of the relevant facts would reasonably regard the interest as so significant that it is likely to prejudice the member’s judgement of the public interest.

The Court of Appeal in R (Richardson) v North Yorkshire CC 2003 ruled that the requirement to withdraw applied to any member with a prejudicial interest, not just those who are members of the relevant committee, and that a member of the authority cannot divest themselves of their official role at a meeting simply by stating they are attending in a personal capacity.

The SBE suggest that the consultation is an opportunity to consider whether the member with a prejudicial interest should be able to attend and address a meeting as long as they do not take part in decision making. Their view is that members may influence a meeting by being present and they are keen to ensure that that influence is not improper. They point out that it is generally possible for a member with a prejudicial interest to get another member to represent constituent’s views if needed.

Q.22 Should members with prejudicial interest in a matter under discussion be allowed to address the meeting before withdrawing?

Q.23 Should members with prejudicial public service interests be allowed to contribute to the debate before withdrawing from the vote?

Officer view: no

3.7 Registration of Interests: Paragraph 14 of the Code requires members to list information in their register of interest about their employer and employment including the business address. The SBE say that public access to this information can, in some cases lead to difficulties where a person is employed in sensitive employment. They propose that the Monitoring Officer should be enabled to give a dispensation to any member if they can satisfy him or her that they are engaged in sensitive employment.

To avoid allegations of improper influence in decision making, the SBE also argue that it would be beneficial to include membership of private clubs and organisations in or near the authority’s area, within the register of interests.

Q. 24 Should members employed in areas of sensitive employment need to declare their occupation in the public register of interest?

Officer view: no

Q. 25 Should members be required to register membership of private clubs and organisations? If so should it be limited to those within or near an authority’s area?

Officer view: yes

3.8 Gifts and hospitality: It has been suggested that ‘hospitality’ should be defined in the Code. The SBE suggest a definition in guidance of food, drink, accommodation and entertainment is sufficient.

They do suggest further inclusions be included in the Code in this area, specifically:

• Members should be required to register gifts and hospitality offered but not accepted;
• Members should be required to register series of gifts from the same source which, valued together, would meet the threshold limit.

Q. 26 Should the Code require that the register of gifts and hospitality be made publicly available?

Officer view: yes

Q. 27 Should members be required to declare gifts and hospitality offered by not accepted?

Officer view: no

Q. 28 Should members be required to record a series of gifts and hospitality from the same source even where individually they do not meet the threshold? How should this be defined?

Officer view: yes, but the definition of this should have some reference to the time period involved and the value of the gifts

Q. 27 Is £25 an appropriate threshold for the declaration of gifts and hospitality?

Officer view: this should be increased to £50

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