As widely trailed before its introduction into Parliament, when it is passed the Localism Bill will revoke:
- The national members’ code of conduct.
- Abolish Standards for England.
- Abolish the requirement for local authorities to have standards committees.
For more information, see Legal update, Abolition of the Standards Board regime.
However, to ensure that councillors continue to comply with the highest standards of conduct, under the Bill it will become a criminal offence for a member to fail to register a personal interest, or withdraw from a meeting where they have an interest in the matter being discussed, although the scope of this offence will be outlined in future regulations.
Duty to promote and maintain high standards
Clause 15 of the Bill places a duty on local authorities to ensure that members and co-opted members maintain high standards of conduct. If local authorities wish to, they are free to adopt a voluntary code of conduct (by either revising their existing code or adopting a new one) to cover the conduct that they expect of members and co-opted members when they are acting in that capacity. However, critics of the proposals are concerned that despite the duty to promote and maintain high standards, it will be difficult, without a national code of conduct, for councillors and the public to judge what is, and what is not, acceptable behaviour and that leaving it up to each local authority to decide whether to have their own code, and if so what it should contain, risks creating confusion. If an allegation of a breach of a code is made in writing, the local authority must take a decision on whether or not to investigate the allegation and, if it is considered that an investigation is warranted, investigate it in any way the authority sees fit.
Disclosure and registration of members’ interests
Clause 17 of the Bill provides for local authorities to establish and maintain a register of members’ and co-opted members’ interests by giving the Secretary of State power to make regulations specifying what interests must be recorded in that register. However, there are no proposed statutory sanctions in the Bill against an offending member (see section 17(3)). The consequence of removing the power to suspend or disqualify councillors whose behaviour brings their authority’s and local government generally into disrepute means that unless members commit a criminal offence and are convicted of that offence, they will remain in office until the next local government elections. At that time, the electorate will have an opportunity to remove any member from office whose behaviour does not constitute a criminal offence but nonetheless is behaviour that brings their office into disrepute. There are no provisions in the Bill for electoral recall, which would allow councillors to be removed mid-term upon evidence of serious misconduct. Therefore, it appears that in future the only way of sanctioning poor behaviour on the part of a member will be by bringing a criminal prosecution against them or, where someone’s interests have been directly affected by a member’s decision, by making a complaint to the Local Government Ombudsman (see Practice note, Local Government Ombudsman (LGO): role, duties and powers).
What is a personal interest?
Given that a member who fails to register a personal interest, or withdraw from a meeting where they have an interest in the issue being considered may find themselves facing a criminal prosecution, it is essential that members understand what constitutes a personal interest and how such an interest may render a decision unlawful. At common law, two distinct forms of bias are identified. These are:
- Where an individual has a personal interest in a matter (for more information, see Practice note, Local government: general principles of conduct for members and the consequences of a breach of conduct).
- Pre-determination, where an individual comes to a decision without any personal interest in the matter but nevertheless has a closed mind.
Section 13 of the Bill intends to clarify the rules on pre-determination, in particular that an indication by a member of a particular viewpoint when campaigning, talking with residents or expressing views on local matters and seeking to gain support for such views is not evidence of a closed mind when they come to debate the issue. Although the government claims that this will reassure councillors that they can campaign, discuss and vote on issues, it is surprising that it has felt the need to legislate given the courts have already asserted that such activities do not preclude members’ participating in decision-making, unless the individual member is so committed to the cause that they have a closed mind on the particular matter and refuse to even consider a relevant new argument.
For more information on the existing conduct regime, see Practice note, Local government: general principles of conduct for members and the consequences of a breach of conduct.