On 11 November, Government finally published the long-awaited outcome on its consultation on Strengthening the standards and conduct framework for Local Authorities in England. The consultation had run at the start of the year following the publication of the English Devolution White Paper and closed on 25 February.

As part of the consultation result and Government response, they announced they intend to legislate for a whole system reform of the current regime as set out in Localism Act 2011.

Government believes that greater devolution relies on local authorities in which the elected members embody the highest standards of conduct and that the public rightly demand its representatives act in their best interests, and that those who do not meet the high standards expected of public office, should be held to account and appropriately sanctioned.

The reforms aim to ensure misconduct is dealt with swift and fairly in every type and tier of local government.

The proposed measures will include:

• the introduction of a mandatory code of conduct;
• a requirement that all principal authorities convene formal standard committees;
• the requirement that all principal authorities offer individual support during any code of conduct investigations;
• the introduction of the ‘right to review’ for both complainant and the subject-elected member to have the case re-assessed;
• powers for authorities to suspend elected members for a maximum of 6 months for serious code of conduct breaches,
• in response to the most serious allegations, the introduction of powers to suspend elected members on an interim basis for an initial period of 3 months;
• a new disqualification criterion for any elected member subject to the maximum period of suspension more than once within 5 year; and
• the creation of a new national appeals function.

The introduction of a Mandatory Code of Conduct

Having clear, easy to understand and effective Codes of Conduct is a vital part of local democracy as it underpins how Councillors, members and officers are expected to act and demonstrate the highest standard of conduct.

Government’s consultation proposed legislating to introduce a minimum mandatory code of conduct with the Nolan Principles at its core. This will ensure that every elected member, or co-opted member in England is clear on what standard of conduct and behaviour is demanded of them in all aspects of their public office.

The consultation results were conclusively in favour of Government prescribing a mandatory code, with 94% of respondents answering ‘yes’. 61% of respondents commented that there should be scope for local authorities to add to a mandatory code to reflect local circumstances

In a response to the consultation, the Local Government Association (LGA) has commented that “Given proposals elsewhere in this consultation for stronger sanctions and a potential appeals body, the need for genuine and visible consistency becomes still greater. An England-wide, minimum prescribed code co-produced with the sector would address these issues and could build on the LGA’s work to develop the Model Code and the experience of the devolved nations that retained national codes”.

The LGA has also highlighted that it would be essential for the mandatory code to reflect the current environment in which Councillors work, considering the amount of political life that now takes place online, on social media and other platforms. It has therefore encouraged that the code should remain under regular review.

Standards Committees

Government wants to strengthen and support the consistent handling of misconduct allegations and has proposed that all principal authorities, and strategic authorities, should be required to convene a standards committee.

91% of respondents to the consultation agreed that all principal authorities should be required to form a standards committee.

Empowering individuals affected by misconduct and appeals

This new standards and conduct framework intends to both support and underpin the principle of accountability. An important aspect of this will be open and supportive challenge, and to provide support to those who call out examples of behaviour that fall below the standards expected.

The consultation responses revealed a lack of consistency in the level of personal support offered to the elected or co-opted member in a code of conduct complaint situation. There have also been concerns around complaints that are vexatious and politically motivated which had not been carried forward for investigation.

Government plans to legislate to provide both complainant and the respondent elected or co-opted member with a ‘right for review’ of standards committee investigation decisions and to set out in legislation the grounds for assessing eligibility to consider a right for review request at local level.

Best practice guidance will also be developed to deal with complaint handling which will specifically include communicating with all those involved to ensure support at all stages. They will also investigate with key stakeholders and sector representative organisations the case for creating an independent confidential helpline support offer for complainants.

The introduction of the sanction of suspension

The proposal suggests a shift towards a standards system with use of punitive sanctions. Commentators have explained that the sector has generally indicated an acceptance that stronger sanctions will be needed in rare cases of serious misconduct.

One of the measures consulted on was the introduction of the power for authorities to suspend elected members for serious code of conduct breaches for a maximum of 6 months, with the option to withhold allowances and institute premises and facilities bans where deemed appropriate.

Most respondents (87%) agreed that local authorities should be given the power to suspend members. 60% agreed that a decision to suspend should be made by the standards committee, whilst 27% thought the decision should be referred to an independent body.

In response, Government proposes to legislate to provide authorities with a power to suspend elected members for serious code of conduct breaches for a maximum of 6 months, with the option to withhold allowances and institute premises and facilities bans where deemed appropriate. Such a decision can only be taken by a standards committee, following receipt and consideration of a formal investigation report, and following consideration of the views of the Independent Person.

Interim Suspension

The consultation also sought reviews on a proposed new power for interim suspension when elected members, or co-opted members, are subject to complex investigations into serious code of conduct breaches. It was proposed that interim suspensions should initially be for a maximum of 3 months, and the period spent on interim suspension may be deducted from any period of suspension a standards committee subsequently imposes.

79% of respondents agreed with the proposals to suspend on an interim basis and 73% agreed that it should be for an initial period of 3 months and then subject to review.

In response, Government have confirmed they plan to legislate to give authorities the power to place an elected member or co-opted member on interim suspension in response only to serious code of conduct allegations subject to external investigation, from the police or other bodies within the criminal justice system, and/or where a court hearing and sentencing is awaited. A standard committee will only be able to justify such a decision if the matter is subject to a law enforcement investigation for a serious allegation and there must be a risk of harm to either the public, the complainant, the subject member, or the authority and its reputation if they were to continue in their role during the investigation. The maximum period of interim suspension is an initial 3 months and requires ongoing review

Disqualification

Under current legislation, anyone can be disqualified from standing or sitting as an elected member if they have been convicted of any offence for which they have received a sentence of imprisonment (suspended or not) for a period of 3 months or more (without the option of a fine) in the 5-year period before the relevant election and also when they have been placed on the sex offenders register.

The consultation sought views on proposals that elected members who are suspended more than once during a 5-year period should also be subject to disqualification.

Government intends, in view of the consultation responses, to introduce legislation to disqualify an elected member or co-opted member if they receive a sanction of suspension for the maximum period of 6 months twice over a 5-year period.

In summary

Commentators have broadly been supportive of Government’s objectives and the proposal to reform the standards and conduct frameworks but it is now a case of how quickly the Government will bring forward and implement these proposals.

Training as ever remains vital for Councillors, members and officers on the regime and new framework to ensure local authorities are best placed to investigate and deal with serious breaches of Code of Conduct.

How Capsticks can help

As trusted advisors to local government organisations, Capsticks’ purpose is to deliver results that matter. By fully appreciating the need to deliver efficiently and cost effectively and with a deep understanding of the legislative and governance framework in which local authorities operate, the team ensures both good governance and best value obligations are observed.

We will continue to monitor the development of the consultation on standards and conduct framework for Local Authorities in England and update you as this progresses.

If you have any queries about what is discussed in this insight and the impact on your organisation, please contact Tiffany Cloynes and Rebecca Gilbert to find out more about how Capsticks can help.