Following on from recent press reports on the sanction that was imposed by Stockton-on-Tees Borough Council (council) on one of its councillors who published a legally privileged document, this week’s post looks at the local government standards regime and the effectiveness of sanctions for poor behaviour under the regime.
Changes to the existing standards regime made by the Localism Act 2011
In many ways, the reported incident appears to demonstrate the concerns that have been raised by many, including the Committee on Standards in Public Life, about the effectiveness of the changes to the previous standards regime effected by the Localism Act 2011 (LA 2011) requiring local authorities to draw up their own local codes of conduct. Since the LA 2011 does not give a relevant authority (or its standards committee) any power to impose sanctions for breach of its code, such as disqualification from office or withdrawal of monetary allowances payable under the Local Authorities (Members’ Allowances) (England) Regulations 2003, sanctions likely to be imposed are:
- A formal letter to the member.
- Formal censure by motion.
- Removal of the member from a committee/committees.
- Adverse publicity.
The legislative framework for the handling of confidential information and reports, which is set out in the Local Government Act 1972 as amended by the Local Government (Access to Information) Act 1985, does not include any sanction if a member (or an officer) releases information without the consent of the council. However, an authority’s code of conduct for members will deal with the disclosure of information. For example, the template code produced by the Local Government Association refers to the principle that a member will “restrict access to information when the wider public interest or the law requires it” (see Local government: general principles of conduct for members and the consequences of a breach of conduct).
Councillor misconduct case: Stockton-on-Tees Borough Council
Publishing a legally privileged document
In relation to the councillor’s actions in publishing a legally privileged document, appears to us that the council’s standards panel would have had little difficulty in concluding that he was guilty of a breach of its code of conduct. Indeed, all members of the council’s planning committee, who received a copy of the barrister’s legal advice, did so under cover of a letter stating that the document had been provided to them in confidence and that sharing the document with anyone who was not a member of the planning committee would be a breach of the member’s code of conduct. Therefore, all planning committee members were on notice of the implications of disclosing the legally privileged document. However, despite this explicit warning, the councillor in question went ahead and published the document in an un-redacted form on a blog post; claiming to be acting in the best interests of residents and showing how councillors on the planning committee were being influenced in their votes. (According to press reports, the barrister’s opinion apparently advised that approval of a scheme for new homes within the borough “would probably result in a withdrawal” of an appeal by developers after the developer’s first planning application was thrown out.)
Sanctions imposed
The council’s standards panel concluded that the councillor’s actions represented unacceptable behaviour and he was criticised for his lack of remorse for breach of the code and his unwillingness to agree to abide by the code in the future. Having failed to attend the hearing, he was instructed by the standards panel to provide written reassurance that he would not leak any more confidential information and it was proposed that he would receive “advice and guidance” on the council’s code of conduct.
If the councillor fails to provide the required reassurance to the panel within the specified two-week timeframe, it appears that he will be banned from receiving any confidential information (which will undoubtedly limit the continuing effectiveness of his role as a member). Presumably, if he gives the reassurance sought but then subsequently breaches it, the council could remove him from committee membership.
In contrast, disclosure of a confidential report by an officer is likely to be covered by the officer’s code of conduct contained in a local authority’s constitution (and is therefore an implied contractual term). This means that if a council officer had published the same legally privileged document, it is likely that the council would have invoked its disciplinary procedures against the officer and possible that the officer would have been eventually dismissed.