LGA response to the strengthening the standards and conduct framework for local authorities in England

The Local Government Association (LGA) is the national voice of local government. We are a politically led, cross-party organisation, which works on behalf of councils to ensure local government has a strong and credible voice with national government. As the representative body of the local government sector, we have an interest in efforts to promote and maintain high standards of conduct and behaviour across the local government system.

Councillors are at the centre of local democracy. Elected from within their local communities and tasked with making decisions that affect the whole community, it is right that councillors be held accountable and to high standards of conduct and integrity while fulfilling their role. The LGA supports the Government’s objectives of empowering councils to deliver the local outcomes residents expect without micromanagement from the centre and acknowledge that a councillor standards system that promotes high standards of conduct and behaviour is a key factor in ensuring high-quality decision-making and local democracy.

The vast majority of councillors act with the best intentions and display high standards of conduct in their elected role. However, we are not complacent, and we know that on very rare occasions member behaviour can fall below the expected standards and that the current system does not always help councils address these issues adequately. This can be damaging to the trust residents place in their councils and to relationships between individual members and between members and council officers.

To support this response, the LGA has completed a detailed engagement exercise. Outcomes of these can be read in our LGA vision for councillor standards research and our commissioned sector engagement report.

Reforms to the councillor standards framework should aim to create an environment and council culture that fosters respectful democratic debate, including sometimes robust challenge of other members and officers.

A successful standards framework should set out clear expectations of councillors to support understanding of appropriate conduct in public life, while also enshrining the vital principle of the enhanced freedom of speech of elected members and clarifying when councillor conduct is in scope of the code of conduct.

The standards framework must be proportionate in expectation of members, approach to complaint handling and application of sanctions. A reformed standards system must not create a chilling effect on democratic speech and should recognise the democratic mandate of councillors to represent their residents’ views and hold each other to account. Additionally, the new framework and associated guidance and processes should support equity of arms between complainants, the council and councillors accused of breaching the code to ensure outcomes are fair and not due to a lack of legal or other support.

Councillors are not employees, and the framework should be careful not to ignore the implications of this distinction. Early and informal resolution should be a strong principle of a new standards system, particularly when the infraction is minor or may be due to a misunderstanding or training need. Complaint investigation and sanctions should be a last resort.

Finally, the standards framework should embody principles of natural justice, fairness and independence of decision-making and presume innocence of any councillor until a breach has been found.

An effective, relevant and easily understandable code of conduct is a vital tool in ensuring that both councillors and voters understand the standards of conduct that are expected of elected members in local government. Since 2011, councils have had substantial freedom to write their own codes of conduct, on the basis of a bare legislative minimum of compliance with the ‘Nolan Principles’. 

However, the overwhelming majority of councils have chosen to adopt more substantive and far-reaching Codes of Conduct than the minimalistic approach that the law technically allows, demonstrating the commitment of the sector to securing high standards of behaviour from councillors.

In 2020, the LGA published a Model Councillor Code of Conduct, with supporting guidance, in response to a recommendation of the Committee on Standards in Public Life. This was developed in consultation with councillors, monitoring officers and other relevant stakeholders and provides a short, accessible and easy to use model code. The Model Code has seen substantial take-up and adoption, with around six in ten councils adopting it to at least some extent. This demonstrates a strong level of appetite for both a broadly consistent and relatively expansive code.

The LGA is aware, however, that there is frustration and dissatisfaction among both voters and councillors where they perceive different levels of standards being applied in different authorities, especially where they are geographically proximate, or where the same individuals serve on two or more authorities. Substantially differing codes of conduct can be the cause of such inconsistencies. This can include variation over whether alleged breaches are investigated or not, what behaviour is judged to be in breach, and what sanctions are applied where breaches are found to have occurred. This undermines public confidence in the standards system and causes confusion and uncertainty for councillors. 

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.

It is essential that the mandatory code reflects the current environment in which councillors work, including the amount of political life that takes place online, on social media and other platforms. In order to ensure that it remains relevant and reflective of the political environment, the code should remain under regular review; and must be capable of being easily amended in the light of experiences of its implementation and changing circumstances.

The mandatory code of conduct should be required to be adopted by all principal authorities and should not be amendable or be subject to local additions. A lack of consistency across councils in terms of code of conduct not only has the potential to create confusion and mistrust in the arrangements, but can also create trip-wires around any appeals system that would arise from the introduction of more punitive sanctions.

The code of conduct should retain a clear and enforceable provision that it applies only to an individual when they are acting in their capacity as a councillor. Most councillors undertake their role as a part-time role, balancing it with other employment, family or caring commitments, or other community roles, while normally in receipt of relatively low allowances. It is not appropriate that in those other parts of their life that they be held subject to stricter obligations than any other member of the public. 

The increasing difficulty of recruiting candidates for local public office would likely be increased if it was set out publicly that this included signing up to be governed by a code of conduct in all aspects of an individual’s life.

However, the LGA accepts that the border between acting in a capacity as a councillor and private life is a difficult one to definitively draw. We have heard from both councillors and monitoring officers that the growth of the use of social media and other digital communication has increased the number of grey areas around when a councillor’s actions are in their public capacity. The definition used in the minimum code of conduct needs to reflect this. The LGA believes that the definition used in the Model Code of Conduct is a good starting point for a minimum code of conduct: this Code of Conduct applies to you when you are acting in your capacity as a councillor which may include when you misuse your position as a councillor and/or your actions would give the impression to a reasonable member of the public with knowledge of all the facts that you are acting as a councillor.

The Government’s proposals suggest a shift towards a standards system with a much greater range and use of punitive sanctions to enforce the high standards expected in local government. The LGA’s engagement with the sector indicates an acceptance that some stronger sanctions may be needed in extremely rare cases of serious misconduct. However, the prospect of introducing stronger sanction throws into greater relief the issues of the current complaints handling system.

The issues of inconsistency related to the light-touch legal framework for codes of conduct also apply to the variability of complaint handling processes and decision-making on complaints allegations. To ensure councils and their elected members and officers are trusted to uphold high standards in public office, complaints must be handled in a manner that upholds fairness, proportionality and independence.

Most importantly, complaint handling must be seen to be conducted away from political rivalries and party politics; this is increasingly important if, with the introduction of suspension, the decision of a standards committee might result in a member being unable to vote at council meetings or changes to the political control of a council.

To this end, a much greater standardisation of approach to complaints handling is needed within and between councils. Specific statutory elements and adherence to consistent guidance would support greater buy-in to the process from elected members, staff and residents. Standardised and compulsory training for elected members involved in determining standards decisions and monitoring officers responsible for complaints handling would also help to put those decisions above reproach.

In terms of statutory elements, councils should be required to have a standards committee with a clear role to promote and maintain high standards in the council and administer complaints processes. The composition of these committees should not be bound by political proportionality but should be balanced where possible; and the committee should include independent lay members with voting rights as balancing members.

Independent persons form an important part of the current system, and this role should be strengthened and broadened. For example, independent persons with the requisite experience and skills could chair standards committees and hearings to avoid accusations of political bias.

Guidance supporting these statutory arrangements and setting out standard processes and timescales for investigation, confidentiality requirements, and hearing and decision-making processes would provide monitoring officers and members with assurances that fair and consistent processes are being followed. This guidance should be developed with the sector and support councils to appropriately balance and meet any obligations relating to the right to a fair trial under Article 6 of the European Convention of Human Rights if the introduction of stronger sanctions brings it into effect. 

Any new standards framework and process must also be pragmatic and proportionate to the issues it seeks to address. Complaints already take up a significant amount of officer and councillor time. Referring all complaints, including objectively low-level, vexatious or politically motivated complaints, to a standards committee risks overwhelming the system. Committee time should be reserved for complaints that reach a threshold that warrants the expenditure of resource in terms of investigation and committee time.

The initial triaging of complaints by monitoring officers should be retained as it provides an important opportunity to reduce unnecessary burdens on councils and on councillors of inappropriate complaints. However, this process can be perceived as lacking independence and transparency. To improve this process, a monitoring officers’ decision to dismiss a complaint or refer it for informal resolution should be supported by the councils Independent Person. If the decision is not unanimous between them, the complaint should be referred to the standards committee. Reports of numbers of complaints resolved in this way should form part of regular reports to the committee.

Additionally, monitoring officers are central to the complaints process and can be perceived as more vulnerable to pressure due to a lack of legal protections. Employment protections afforded to statutory officers should be enhanced to include all disciplinary action, such as suspension and formal warnings, not just dismissal, as recommended by the Committee on Standards in Public Life to reduce this vulnerability.

Elected members should not be able to subvert the complaints process or avoid sanction by resigning their seat in advance of a decision being reached and seeking re-election. However, there are other instances where a councillor might step down or cease being a member, for example, due to serious illness, a change of circumstances or death. Councils should have the discretion to complete an investigation after a member has vacated their elected role, if it’s in the public interest to do so.

Proposals to introduce interim suspension with allowances and with no presumption of guilt while complex investigations or police investigations are carried out is a serious democratic risk. Suspension means that councillors would be unable to attend council meetings or vote on decisions that impact their residents, in effect they would be punished as if they had already been found to have breached the code. In cases where there are safeguarding or safety concerns linked to a criminal allegation; councils can liaise with police to put in place relevant protective orders.

If interim suspension was to be introduced, it should not be allowed to go on perpetually and should be only permitted in exceptional circumstances. In such cases, interim suspension should indicate that the allegation is serious enough to ensure the investigation is expedited and therefore the interim suspension should be of limited duration and not exceed beyond a maximum of six-months.

To ensure democratic transparency and allow members of the public to make informed judgements at election time, breaches of the code of conduct should be published as well as a regular anonymised summary of the disposal of all complaints made to the council. Councillors should have the option to request a decision-notice be made public where they have been found not to have breached the code following an investigation.

The vast majority of councillors behave well and conduct themselves appropriately in office, but a large majority of infractions are relatively minor in nature. Such infractions are appropriately dealt with via the existing light-touch framework, and this should not be impacted by the introduction of a suite of tougher sanctions. 

However, the LGA supports proposals to provide for a wider range of meaningful sanctions to deal with the small number of extreme or persistent breaches of the code of conduct, including the ability to suspend councillors for a period of up to six months where this is appropriate. There is widespread consensus that the existing range of sanctions are too limited and hard to enforce, do not provide a deterrent effect, and their inefficacy negatively impacts trust in democratic processes. 

The existing system rests too much responsibility for responding to substantial code breaches on party groups, which do not cover all members, and may not always act appropriately or effectively in the event of a breach by one of their members.

The proposed expanded suite of sanctions, while welcome, should only be applied in particularly extreme cases, and where other routes to address poor behaviour, including early intervention and mediation, have either been exhausted or are inappropriate. 

The suspension of a member of a council is a substantial act, which does not only impact upon the member themselves, but also produces a democratic deficit for their residents, who will be denied all or part of their local democratic representation for a period of months; places additional workload on ward colleagues in multi-member wards in terms of casework, engagement and representation; and may cause issues with committee caseload and proportionality within the council. 

In cases of politically tightly balanced councils, the suspension of a member may have an impact on political control, or on the ability to pass crucial business, such as the setting of a budget. Suspension must therefore be a sanction that is used sparingly and only for the most substantial cases, and this should be reflected in any guidance accompanying the minimum code of conduct.

The government’s proposals suggest a maximum period of suspension of six months. The existence of the six-month rule of non-attendance under the 1972 Act suggests that this is the maximum period that is considered appropriate for residents not to be represented by their councillor, six months should be the absolute maximum suspension, used only in the most extreme cases. It is important, however, that suspension does not become, de facto or by accident, an effective disqualification for the councillor in question. It should be set out explicitly in legislation that the period of suspension does not count towards the six-month attendance rule under the 1972 Act, and that the ‘clock’ is paused for attendance requirements during a suspension of any length.

Suspension would be a very substantial sanction and a six month suspension – or indeed a suspension of any length - must not be allowed to become a default punishment for breaching the code. Suspension itself should be sparingly used, and this must be on a sliding scale, with administrative sanctions and shorter periods of suspension being the norm in all but the most extreme cases. Again, guidance to this effect should accompany the minimum code.

The government should consider carefully the issue of whether the stopping of allowances is appropriate and proportionate as part of a suspension, or whether this should be an additional sanction that can be enforced in extreme cases. While allowances are not a salary and, unless supplemented by special responsibility allowances, would not normally represent enough to subsist upon, the suspension of an allowance could still represent a very substantial financial impact on a member who had, for example, moved to part-time work so as to enable them to undertake their public duties, or for a retired person for whom the allowance was the sole supplement to a basic state pension. 

The withdrawal of what could be considered a part of a member’s livelihood represents a substantial increase in the punitive powers available to a monitoring officer or standards committee and would therefore place their processes and decisions under much greater scrutiny and expectations of independence. This would obviously be even more so if the member in question was in receipt of an SRA, which will in many cases represent, alongside their allowance, a member’s entire income. However, there is concern that not withholding allowances during a period of suspension would substantially lessen the impact of a suspension and could be perceived as a ‘paid holiday’ by the member being sanctioned or by voters.

To minimise the need for suspensions and other sanctions to be employed, the primary focus of enforcing the minimum code must be around early intervention and resolution. It is important that the role of all relevant parties – including political groups, senior councillors, and monitoring officers – in identifying and warning of behaviours or actions that could lead to a breach in the code is emphasised, as is the opportunity, where breaches do occur, for an early resolution to be reached to address and recognise poor behaviour, with the support and agreement of any victim of said behaviour, as appropriate. Monitoring officers should be empowered and encouraged to seek early resolution wherever possible and appropriate.

Repeated poor member behaviour can be disruptive and reputationally damaging to councils. However, removing an elected person from public office is an extremely serious undertaking, superseding the people’s democratic choice of representative. There are certain circumstances where this is appropriate, but these circumstances are extremely rare; conduct would have to be very serious and probably criminal to warrant this kind of action.

The proposal to disqualify councillors who are suspended more than once in a five-year period risks councillors being disqualified for fairly minor infractions, for example, an offence resulting in a shorter suspension than the maximum six months possible. This would not be proportionate. Additionally, this second layer sanction could have a perverse impact; members of standards committee might well be swayed not to find a breach or apply an appropriate suspension to a councillor, if doing so might result in disqualification.

Aside from the proposed new disqualification criteria, the current disqualification criteria in relation to criminal offences needs reviewing. Criteria established under the 1972 Local Government Act states individuals sentenced to a custodial sentence of at least three months are disqualified from holding or running for local election for five years. The criteria have been updated since to bring into scope disqualification for illegal or corrupt electoral practices (Representation of the People Act 1983), sexual offences (Local Government (Disqualification) Act 2022), and intimidatory criminal behaviour motivated by hostility towards a political person (Elections Act 2022). This piecemeal approach to identifying what criminal behaviours exclude a person from public office has had several unintended consequences.

First, no review of disqualification criteria has been performed to consider changes to sentencing policy or the introduction of new offences that might be relevant to standards for elected officials. This has led to some notable exclusions, including misconduct in public office and fraud against the authority on which a councillor sits not resulting in disqualification.

Second, adaptation of disqualification criteria to strengthen the regime in local government has not always been replicated for parliamentary members and this has increased pre-existing disparity of accepted criminal behaviour between different elected roles. However, it is unclear why it is acceptable for members of parliament to continue in their roles having been convicted of criminal conduct that would result in a local councillor being disqualified for five years.

Disqualification thresholds and criteria should be reviewed across elected roles to produce a proportionate and consistent standard which can be well understood by members, officers and the public. Deviations for very specific roles or circumstances may be considered, but this should be the exception, not the rule.

If stronger sanctions such as suspension, loss of allowances and disqualification are introduced, Article 6 of the European Convention of Human Rights may become relevant in the handling of councillor complaints. Some have contended that this would mean a national appeals body would be needed to administer appeals.

Whether or not it is technically required, the LGA believe that if stronger sanctions are introduced, a national body must be established to handle appeals processes. This, as well as ensuring councillors have access to appropriate support, is vital to fulfil the requirements of natural justice, fairness and impartiality that are essential in creating a trusted and fair councillor standards framework.

Instituting a new national body to carry out appeals could be burdensome and costly if not handled proportionately. To reduce unnecessary complexity and bureaucracy, the scope of the appeals system would have to be limited. It should not be possible to appeal a decision to dismiss or refer a complaint for informal resolution if the monitoring officer and independent person or the standards committee at the council agree this is appropriate. Additionally, it would not be proportionate to allow appeals when a breach has been found, but the sanction is an administrative sanction, particularly if the complaint handling processes are strengthened in the ways suggested in this submission.

Councils already handle complex complaints cases and have highly skilled officers and members whose expertise should not be forgotten. The appeals process should be co-produced with the sector and with best practice in mind to avoid the issues of the previous Standards Board for England and national bodies in other UK jurisdictions.

Evidence from councillors has frequently suggested that the current complaints procedure can be stressful, over-extended and uncertain for those complained about, and that there is sometimes a lack of support for those subject to a complaint. 

In particular, the lack of guaranteed timescales for resolution of complaints can mean that they remain pending over a councillor for many months, especially where internal resources within the council to investigate and resolve the complaints are over-stretched. This can particularly be the case where monitoring officers are dealing with substantial complaint caseloads arising from parish or town councils within their area. An expansion of the suite of sanctions available to include suspension and/or disqualification would make the process of being under investigation or awaiting determination for an allegation of a substantial code infraction all the more impactful. 

The Government should consider whether statutory or advisory timescales should be introduced for complaints to be determined, or at least for a requirement that the councillor be provided with updates on the progress of the complaint at reasonably regular intervals. 

If a separate appeal body or bodies are established, it is important that it is also subject to clear expectations around times for determining appeals and ensuring that appellants are kept informed on the progress of their cases. One of the key criticisms of the previous Standards Board regime was the time it could take to reach decisions, and it is important this is not reflected if national or regional bodies are re-established.

Equally, councillors should have an appropriate amount of time to launch an appeal. Appealing within five days of a standards decision is not a fair timeframe for councillors; one month would be more appropriate for decisions that result in serious sanctions. Employees making a claim through Employment Tribunal typically have three months minus 1 day to appeal; although this may be disproportionate to the sanctions for councillors compared to the types of claims employees make.

Many members who are the subject of complaints have reported feeling unsupported and lacking in advice through the process. While this support can, and often is, provided through party groups, this cannot be guaranteed to be forthcoming, and is not applicable to ungrouped independent councillors, members who have had their whip withdrawn, or members of very small party groups that do not have the infrastructure to provide such support. 

The provision of support and advice again becomes increasingly important if more substantial sanctions are introduced, given their potential impact on a councillor and therefore the greater significance of the process, which becomes more akin to a legal process. This makes the principle of ‘innocent until proven guilty’ and therefore an expectation of eligibility for support and advice all the more relevant. Members should, as a matter of course, be entitled to bring another person, for support or advice – such as a solicitor or fellow councillor – to all proceedings that take place in relation to their case, whether at council or appeals body level.

The government should consider routes to ensure that support for complained about members can be provided, whether formally or informally, and how this can be encouraged through the legislation itself or through guidance. This could include the approach adopted by some councils of a second independent person, who would not be otherwise involved in this particular complaint, being a go-to person for the councillor for advice and support. 

Other options could include support through a specific officer within the council, via the appellate body, or LGA party groups in exceptional circumstances where the support cannot be provided more locally.

In the past, the LGA has flagged concerns about the impact responsibility for parish and town councillor complaints has on principal authorities in terms of budgetary impacts and resource implications on monitoring officers in areas with town and parish councils. Principal councils have the responsibility of handling these complaints and it is unclear whether they have the option to charge back reasonable costs associated with fulfilling this responsibility.

Some monitoring officers have indicated that two thirds to three quarters of complaints they handle relate to local councils in their area, rather than complaints against their own councillors. Such high volumes of complaints from parish and town councils can result in a large amount of monitoring officer and deputy monitoring officer time being spent assessing whether investigations are required and in additional costs associated with buying in additional capacity to complete investigations. Some monitoring officers have reported that often complaints are of low-level and could be seen as political “tit-for-tat” that do not warrant investigation or sanction. 

Monitoring officers are an essential position in councils, ensuring the effective governance of local authorities and maintaining the councillor standards and complaint system and yet, they can be challenging roles to recruit to. Monitoring officers confirmed that additional pressures, such as high volume of complex complaints, can act as a deterrent to good officers remaining in roles with high levels of parish and town councils.

Additionally, if the Government does proceed with plans to unitarise two tier areas, monitoring officers of new unitaries maybe in an untenable position with large numbers of parish and town councils coming under one, rather than many, council jurisdictions.

The LGA has in the past called for the power to recharge reasonable costs to parish councils for handling complaints, but there are concerns that the impact would be disproportionate across different councils and inappropriately disincentivise people from complaining. With structural change on the horizon bringing this issue to the fore, now may be the right time to review whether it is still appropriate for principal councils to be financially and administratively responsible for parish and town complaints processes and what other approaches may be more appropriate.