LGA vision for councillor standards: report into sector engagement on reforms to the councillor standards framework

The Local Government Association (LGA) commissioned Hoey Ainscough Associates, with support from Wilkin Chapman LLP, to assist them in engaging with the sector to establish sentiment concerning reforms to the councillor standards framework, and support the development of positions for use in the LGA’s response to the Government’s 'strengthening the standards and conduct framework for local authorities in England' consultation. The project consists of two phases of activity.

As the first phase of this work, a questionnaire was launched on 12 December which was sent to all councillors and monitoring officers. Independent persons and chief executives were also invited to respond. The questionnaire formally closed on 9 January. This produced quantitative data on the majority of, but not all, issues covered in the consultation paper.

The second phase was a series of focus groups for a mix of councillors, officers and independent persons. Six groups were held between 8 and 15 January. This produced more qualitative responses looking at the detail of specific, complex aspects of the Government’s proposals.

This report sets out the methodology of the questionnaire and focus groups, the results under key areas and proposes some points for consideration by the LGA in relation to responding to the consultation and for future development.

The questionnaire

The questionnaire consisted of fourteen substantive questions which were agreed with officers at the LGA. Although the questionnaire was issued shortly before the actual consultation paper, it anticipated the majority of the key proposals set out in the Government’s proposals.

In general, the questionnaire consisted of multiple choice (single answer) questions for simplicity and to help gain a clear position, although some questions allowed respondents to choose more than one answer. The answer options were generally the Government proposal versus the current legislative position, although they were sometime further broken down to elicit views as to whether certain proposals should be mandatory or left for local choice. 

The questionnaire was sent by email to all councillors and monitoring officers in England using databases procured through the LGA’s usual contact database provider. Only a handful of emails were reported ‘undelivered’ and these were followed up wherever possible. Some councillors were not contacted because they indicated that they did not want the LGA to contact them. However, the questionnaire was also advertised through the Political Group Offices and through the Chief Executive’s and Chair bulletin and councillors could request the link to the questionnaire or receive it from their monitoring officer.

In addition, monitoring officers were asked to pass the questionnaire on to their council’s independent persons and chief executives. The questionnaire was also sent to independent persons through a database held by Hoey Ainscough Associates of independent persons who had attended regional training workshops they had held over the last two years.

Notes on the reporting on the questionnaire results:

• Where tables report the base, the number provided is the unweighted number of respondents who answered the question.
• Throughout the report percentages in tables may add to more than 100 due to rounding.

Focus groups

The questionnaire was designed to illicit general views on the wide range of topics covered, while the focus groups were aimed to ‘drill down’ into these findings. Topics prioritised for discussion included proposals where there was not a broad consensus view or complex solutions that could have resulted in unintended consequences.

In delivering the solutions development focus groups, it was important to ensure as far as possible a representative mix of attendees. Considerations in creating this mix included:

• ensuring a mixture of officers and councillors
• ensuring representation from all political groups
• ensuring input from independent persons
• ensuring representations from all regions and all types of councils
• ensuring representation from chief executives
• ensuring there was representation from relevant stakeholder organisations.

We ran six focus groups with an ideal attendance of six to seven attendees per focus group. However, we invited approximately 60 attendees in the first instance to take into account availability and natural attrition.

Invite slots were allocated as below:

• 28 slots for councillors, seven per group: LGA political group offices were asked to nominate seven councillors in the first instance and to provide alternatives if those invitees were unable to attend a session. Not all groups filled their invite slots.
• 18 slots for monitoring officers: officers worked with the LGA legal team to identify two monitoring officers per region with a range of council types and geographies in the first instance.
• six slots for independent persons: officers worked with Hoey Ainscough Associates to identify independent persons to invite to the sessions.
• five slots for chief executives: officers worked with SOLACE to identify five chief executives in addition to their SOLACE representative to invite to the sessions.
• four slots for stakeholder organisations: officers used existing contacts to with relevant stakeholder organisations to identify leads to attend the sessions.

Councillors or officers who had been involved in previous phases of this project aimed at issues identification were excluded from the invite list to ensure the widest breadth of perspectives were heard through the whole project.

Representativeness of questionnaire

In total 806 people responded to the questionnaire. The questionnaire was sent directly to 16254 councillors, the chief executives and monitoring officers of all 317 principal councils and 128 independent persons. In addition, monitoring officers were asked to share the questionnaire with other relevant parties such as deputy monitoring officers, independent persons and independent lay members of standards committees. 

Table 1: What is your authority type?

Base: 806. Please note: respondents were able to select more than one option.

Some councils will have been represented more than once in the percentage of all responses due to responses from multiple councillors from one council and officer responses. It therefore was not possible to assess response proportionality from this figure. However, using councillor responses per authority type as a proxy, districts and counties are slightly overrepresented compared to the other authority types in responses.

Table 2: Representation in questionnaire by authority type

At least one response was received from 271 councils, which indicated that a response was received from 85 per cent of councillors and high response rates were present across all types.

Table 3: Representation in questionnaire by region

There was good cross regional representation in the responses, with all regions showing 75 per cent or higher coverage in terms of responses from individual councils.

Table 4: What is your position at your authority?

Base: 806 

Councillors were the majority responders to the survey. In the report these have been groups as councillors (71 per cent) and non-councillors (29 per cent).

Table 5: What is your political affiliation?

Base: 571

Table 6: What is your political affiliation (LGA political groups)?

Base: 571

The political sample appears to be broadly proportionate to distribution of elected members of each political group in England, although Conservatives are slightly underrepresented compared to other groups.

Due to the small sample size, it is not possible to say that these results are representative of the views of the whole sector. However, it does provide an indication of the views of a cross section of councillors from a range of political groups and council types and officers from a range of council types.

Attendance at focus groups

36 attendees attended across six focus groups as follows:

• 17 councillors attended the sessions, including five Labour, three Conservative, six Liberal Democrat and three Independent Group councillors. Councillors therefore represented just under half of attendees at the focus groups.
• nine monitoring officers attended the sessions with representation from all types of principal council. Monitoring officers represented a quarter of attendees.
• three independent persons attended the focus groups.
• five chief executives attended the focus groups.
• two stakeholder representatives attended the focus groups.

All regions were represented.

The following sections explore the results of the questionnaire and focus groups under broad topic headings. Each section also looks at what some issues might be, were the LGA to support, oppose or remain broadly neutral on the key proposals.

The code of conduct

The first substantive question asked in the questionnaire was whether councils should continue to have the right to have their own local code of conduct as now or whether there should be a mandatory national code of conduct which applies to all councillors. The Government has similarly asked that question in the consultation paper.

There was widespread support for a national code of conduct with 83 per cent supporting a mandatory national code of conduct and only 16 per cent supporting it remaining local choice as now.

Table 7: There is currently no mandatory national code of conduct for councillors although there is a Model Councillor Code of Conduct. Which, if any, of the following is your preferred option?

Base: 803

The responses show a strong support for a mandatory national code of conduct. The Government also asked whether there should be scope for local authorities to add to a mandatory minimum code of conduct to reflect specific local challenges. We did not test that proposition specifically in the questionnaire, there may of course be a desire to share learning about any specific local additions for other councils to consider, and there is always a risk that a council might adopt a provision which has no legal basis so runs the risk of challenges but on the whole the principle to allow extra local provisions would seem in keeping with maintaining a largely- or wholly-locally regulated system.

If the Government were to introduce a mandatory minimum code or completely prescribed code, some consideration would be needed as to who is best placed to produce and maintain the code and possible associated guidance. There are various approaches to this and at that point the LGA would need to consider its role in shaping the code.

The Government consultation suggests that their thinking at present is to set out a prescribed minimum code of conduct in regulations. While that may have the benefit of legislative certainty and greater legal force if challenged through the courts, inevitably it would in effect make the Ministry of Housing, Communities and Local Government (or any new independent body) the ‘guardians’ of the code of conduct and the arbiter on matters of interpretation and guidance. An alternative would be for the LGA itself to be responsible for the prescribed minimum code of conduct and any supporting guidance as now. That would not have the force of a Statutory Instrument but would be more flexible and seen as sector-led rather than imposed.

On the other hand, it could make the LGA open to criticism should the code of conduct or guidance ever be challenged in legal proceedings. Another option would be for a prescribed minimum code of conduct to be produced by a partnership of local government practitioners including the LGA. Government could direct which bodies should be involved. That could give the assurance of regulatory certainty through Government approval of the code of conduct but ensure that it is ‘owned’ and has the buy in of key local government stakeholders.

The scope of the code of conduct

The next section of the questionnaire was about whether the code of conduct should regulate certain private matters. The Localism Act 2011 only applies the code of conduct to matters carried out by a councillor when acting as a member or representative of the authority. It therefore excludes anything a councillor may do in their private life. Among things currently not covered are criminal convictions which fall below the three-month imprisonment threshold for automatic disqualification as well as non-criminal actions which may be regarded by some as bringing the council into disrepute, including for example postings on social media unrelated to council business or councillors acting ‘disreputably’ away from council settings either in their community or in other roles.

Table 8: Under the current law the code of conduct does not cover any private conduct. This means that actions and behaviour that occur in a person's private life, such as criminal convictions not explicitly relevant to councillor disqualification criteria are not covered by the code. Which, if any, of the following is your preferred option?  

Base: 804

This issue of when the code of conduct should apply was a large part of discussion in the focus group. In those discussions, this topic was broken down into two parts. 

Criminal convictions and automatic disqualification 

The first was whether criminal convictions which fall below the current three-month prison sentence disqualification threshold should be regulated. There was widespread agreement that the current three-month rule, which had been introduced in 1972, needed to be looked at again given society and sentencing changes among other things. It was therefore felt that the disqualification regulations needed to be updated, though there was a range of views on how this could be covered. Convictions we were aware of which councillors had received where the imposed sentence currently fell below the disqualification threshold and therefore allowed councillors to continue on the Council included: convictions for benefits fraud (including council tax and housing benefits fraud); violent crimes (including convictions for domestic violence and racially-aggravated assault) and ‘protest’ convictions (including taking part in acts of civil disobedience such as blocking motorways or damaging public artworks). There are also other criminal offences such as speeding convictions which could be caught by a very wide definition which simply covered all criminal convictions.

Views ranged from simply saying any criminal conviction should lead to disqualification as damaging one’s reputation as a public official; through to trying to distinguish between ‘types of offences’ and excluding what may be called ‘protest’ convictions; or listing specific offences which would lead to disqualification regardless of sentence.

In considering alternative ways to identify a threshold for disqualification due to criminal conviction, legal advice was sought in relation to using the three categories of offence (summary, triable and indictable) as an indicator. However, some offences may cross the boundary between summary and triable and offences relevant to being fit for public office do not fit neatly into these categories. For example, bail offences are tried by the court which issued the bail. Criminal damage is tried by reference to the value of the damage. Some summary-only offences such as common assault, taking a car without consent and driving whilst disqualified can be tried in the Crown Court if they are linked to another offence being tried there. Even summary only offences can be serious in nature, for example assaulting a constable in the execution of their duty (section 89 of the Police Act 1996) would in our view generally be regarded as conduct unbecoming of an elected official. 

Other professional codes of conduct do cover this area but tend to have general statements which can be dealt with by the regulating body rather than classifying offences in ways that would automatically lead to one being ‘struck off’ or not. For example, the Solicitors Regulation Authority’s principles require solicitors to act in a way that upholds public trust and confidence in the solicitors' profession and in legal services (Principle 2) and to act with integrity (Principle 5). It then gives guidance on how that would be interpreted in any given situation. 

Next the focus groups considered how to deal with any criminal matters which may not be captured by current or future disqualification regulations. Specifically, whether criminal convictions not resulting in disqualification should be brought within the scope of the code of conduct whether or not council related, if they bring the councils into disrepute, in a way similar to the Solicitors Regulation Authority. Examples may include receiving a caution for common assault or battery or a penalty notice for being drunk and disorderly or in possession of cannabis.

This issue divided views in the focus group with some seeing that these things can damage the council’s reputation if they are not seen to be addressed while others felt that this could be overly intrusive and put people off from wanting to stand if they felt every minor misdemeanour could be regulated. There was also a concern expressed that the council might be seen to be re-investigating a matter where the police had decided to take no further action (albeit there was a different burden of proof and may be being looked at against the code of conduct rather than the criminal law). 

Views were also expressed that, if there was a conviction which did not lead to automatic disqualification, some other mechanism could be considered for the council such as a recall mechanism. There was a general view, however, that if the scope of the code of conduct was widened to cover these issues there would need to be guidance to ensure that it was enforced consistently and not used unfairly. 

Non-criminal matters

The second area was whether private matters which do not receive a criminal conviction but nevertheless may be seen as reputationally damaging or damaging public trust should be brought within the code of conduct under some general provision relating to disrepute.

Examples discussed in focus groups included councillors being caught on CCTV involved in criminal damage or alleged assaults or neighbour disputes but not being prosecuted, or posting comments on social media which, while they may not be prosecuted for inciting racial hatred, for example, may nevertheless be seen as causing widespread alarm or distress. Again, views were very mixed on this in the focus groups as above, with some seeing these things as damaging public trust while others see them as overly-intrusive if they were to be regulated. Again, it was agreed that if these things were covered, there would need to be some sort of consistency across the country, akin to a ‘fit and proper person’ test. 

Social media in particular raised difficult issues. There were concerns on the one hand that certain comments went against the grain of promoting civility in public life and amounted to no more than ‘mere abuse’ or personal attacks. On the other hand, the right to freedom of expression as enshrined in Article 10 of the European Convention on Human Rights is rightly seen as vital and the code of conduct should not be used to police unpopular opinions.

At the moment the legal definition of when the code of conduct applies means that the code of conduct only covers postings which relate to council business rather than wider comments unrelated to the council. This is reflected in the LGA guidance on the Model Councillor Code of Conduct. The Committee on Standards in Public Life in its 2019 report recommended that the code of conduct be amended so that there is a presumption where a public figure makes a public pronouncement they are doing so as a public figure and should be regulated. 

Two different approaches are taken in Scotland and Wales to these matters with regard to their councillor codes of conduct. 

In Scotland, like England, the Scottish code of conduct does not apply when councillors are acting in a purely personal or private capacity (this is even in cases where someone recognises they are, or identifies them as, a councillor) nor when they are at an event that is unconnected to the council or their role as a councillor, and where they have not identified themself as a councillor.

This would have the advantage of providing some degree of certainty for local authorities, monitoring officers and councillors. It ensures that the focus is on the public role of a councillor and not their private life so respects that boundary and may not put off people from wanting to stand who fear intrusion into their private life. It would not regulate social media postings made by councillors which did not relate to council business and mean that any private actions or statements deemed inappropriate would in theory be a matter for the political group, and ultimately the public to determine through the ballot box.

On the other hand, it does not match public expectation which tends to expect councillors to uphold high standards at all times. It means the most egregious private misconduct can be seen as going ‘unpunished’ with potential reputational damage for the council as a whole or any political group and is out of step with other professional codes of conduct which do invariably regulate some serious private matters.

In Wales by contrast, the Code of Conduct requires (amongst other things) that councillors must not behave in a way which could reasonably be regarded as bringing their office or authority into disrepute at any time. Guidance on the Code of Conduct published by the Public Services Ombudsman for Wales states: “When considering whether a member’s conduct is indicative of bringing their office or their authority into disrepute, I will consider their actions from the viewpoint of a reasonable member of the public… Dishonest and deceitful behaviour will bring your authority into disrepute as may conduct which results in a criminal conviction, especially if it involves dishonest, threatening or violent behaviour, even if the behaviour happens in your private life.”

This has the disadvantages of leaving it more subjective for local authorities to make judgments about but does seem to be in line with public expectations and does allow councils to manage their reputation by being seen to take action in these circumstances. It would in theory cover social media postings made by councillors and was the approach recommended by the Committee on Standards in Public Life when looking at how to deal with social media posts that were deemed abusive or offensive but unrelated to council business.

At the moment the LGA Model Councillor Code of Conduct says it only applies when you are acting as a councillor or representative of the authority or ‘a reasonable person would think you are acting as a councillor’. This latter limb was added to cover certain situations where a councillor may be seen to be misusing their position in the community to advantage or disadvantage people. However, this goes further than the Scottish definition and it has not been tested legally as to whether it complies with the Localism Act which had repealed the test from the Local Government Act 2000 which had previously applied the code of conduct when you were ‘purporting to be a councillor’.

The consultation also asked about whether it should be a code of conduct requirement for councillors to cooperate with investigations into code of conduct breaches. We did not raise this in the questionnaire or focus groups, but it is already a provision in the LGA Model Councillor Code of Conduct which was developed after extensive consultation with the sector so is likely still to be supported by the sector. It does raise issues of enforceability, as in effect non-cooperation becomes another offence needing investigation and adding to the ‘charge sheet’ but it is something that is often treated as an aggravating factor when a standards committee is considering a sanction currently.

The role of a standards committee

The next topic is the role of standards committees. Prior to the Localism Act it was mandatory to have a standards committee comprised of a mix of elected members and co-opted lay persons with voting rights and chaired by a lay representative. The Localism Act repealed the need to have a standards committee and removed voting rights from lay representatives. In theory there is no requirement at all to have standards issues dealt with by a committee though in practice we believe most authorities either have a standalone standards committee or else has standards as part of a function of a wider committee such as an audit and governance committee.

The Government consultation asks two broad questions – should it be mandatory in future to have a standards committee; and should the requirement to have independent representatives on the committee be reintroduced. These were both recommendations made by the Committee on Standards in Public Life to the previous government in 2019. Respondents to the questionnaire were asked about mandatory standards committees, mandatory training for members and voting rights for independent lay members on standards committees.

Table 9: There is currently no requirement for local authorities to have a standards committee, though many choose to do so. Existing standards committees are generally responsible for promoting high standards of councillor conduct and taking decisions on standards cases which have been investigated. Which, if any, of the following is your preferred option?

Base: 802

Table 10: Do you think that councillors who sit on standards committees or equivalent should be required to complete mandatory training on their role and responsibilities?

Base: 804

Table 11: Currently only elected members have voting rights on a standards committee; co-opted independent lay members are advisory and cannot vote on decisions by the committee. Which, if any, of the following is your preferred option?

Base: 804

The majority of respondents across councillors and non-councillors supported a requirement to have a standards committee. Additionally, the vast majority of respondents also supported the requirement for mandatory training for standards committee members.

There was a close split between all three options when considering whether co-opted members should have voting rights through the questionnaire. In the focus groups there was a broad consensus of the importance of local independence within the system to guard against perceived politicisation of the process and promote public trust. This was seen as best achieved through having independent representatives with voting rights on standards committees so there was a general feeling it should be a mandatory requirement in order to promote consistency and avoid politicisation. Some concerns were raised about how ‘independent’ some individuals may actually be as there was a concern that at times appointees may be seen as too close to the ruling group on an authority but that is something which could be addressed through any provisions or guidance about the appointments process. 

Clearly having a standalone standards committee gives greater emphasis within the authority on the duty to promote and maintain high standards and builds some expertise in the area among members. However, where councils have combined the function in with another committee, such as an overarching audit and governance committee, it would create another committee for those authorities by disaggregating the functions which may have resource and time implications and there are examples of councils successfully combining the function in other committees.

Either allowing or requiring councils to have lay voting members on a committee could enhance public confidence in the system and introduce an important level of independence which would help mitigate any perceived politicisation of the system, particularly if higher sanctions are introduced. On the other hand, councillors, as the elected part of the authority, may feel that only they have the democratic legitimacy to be able to vote on matters relating to fellow councillors.

When the Localism Act removed voting rights from standards committee lay members, the role was replaced by statutory independent persons. They are there to give their views to the council on standards matters but do not have a vote on any final decisions. Whether this role should be retained in a reformed standards system is a key question. 

Table 12: Under the current framework authorities must have an independent person whose views must be sought by the authority on matters under investigation. Which, if any, of the following is your preferred option?

Base: 801

Respondents to the questionnaire were in favour of the role of independent persons continuing. However, the consultation asks whether IPs should be given voting rights and chair the standards committee, indicating that the Government sees the role as becoming part of the standards committee rather than continuing as a standalone role. In the focus groups there was some support for continuing to have a standalone IP role as well as having independent representation on the committee. It was seen as a way of someone standing outside the decision-making process but who could support the MO and the subject member and act as a neutral figure in any specific complaint.

If the role were to be retained as it currently is, there would be an argument for needing one or more independent persons to stand aside from the committee and advise the council or MO independently.

Sanctions

The Government consultation says that they are considering introducing a range of stronger sanctions. Options include suspension (up to six months), loss of allowance, facilities and premises bans and disqualification in certain circumstances. In the questionnaire respondents were asked whether the current range of administrative sanctions was sufficient or whether greater sanctions were needed and what sanctions they would support. 

Table 13: Authorities have limited powers to sanction councillors who have been found to have breached the code of conduct, including public censure, additional training and removal of special responsibilities. Councillors cannot be suspended or disqualified for breaching the code. Which, if any, of the following is your preferred option?

Base: 804

Table 14: Which of the following sanctions do you think would support authorities' ability to maintain high standards of councillor conduct and behaviour?

Base: 805 (Note: respondents were able to select multiple options)

The highest proportion of respondents to the questionnaire felt that suspension without allowances would support councils to maintain high standards of member conduct. Although there was some difference between councillors and non-councillors, this was still the preferred option and received support from both groups.

The LGA has previous argued for parity of standards across elected members, including arguing for recall to extend to police and crime commissioners as well as members of parliament. However, there wasn’t significant support for recall from respondents, in fact disqualification and removal of allowances were more popular. If recall petitions are successful, they do trigger by-elections which would inevitably have cost implications.

The focus groups discussed possible sanctions in some detail. While there was a broad recognition that greater sanctions were needed for the minority of serious cases and that the absence of these sanctions was damaging the reputation of local government, equally there were concerns about sanctions being used as a ‘political weapon’ so they should only be available if the system was seen to be more consistent and independent than it is currently. They should therefore be seen in the context of wider reforms rather than something that could be introduced in isolation. There was also a strong feeling that there would need to be something akin to ‘sentencing guidance’ available for councils to ensure consistency and fairness and minimise the risk of perceived or actual politicisation and the democratic impact that the imposition of such sanctions could have.

The Government consultation also suggests the possibility of introducing interim suspensions for certain more serious allegations. This was not covered in the questionnaire but was discussed it in the focus groups. There was general wariness about interim suspension due to the importance about being presumed innocence before judgment and democratic deficit for residents during the investigation period. There was some discussion about whether the power could be used if a councillor had been charged with a serious criminal offence and there was some more support for this but still concerns that the gap between being charged and tried can be considerable and would again raise questions of representation. The consensus was that the Government should think carefully before introducing such a power and councils would want very clear guidance about how the power should be used.

The consultation paper also asked that, if suspension were used, should councils be required to ensure that constituents had an alternative contact or should this be left to the discretion of the council. We did discuss this briefly in focus groups as there was some concern about lack of representation during periods of suspension. This is clearly easier to manage in multi-member wards rather than single-member wards, but the general view was that local authorities were capable of managing this situation. For example, in some councils a council officer has been nominated to support residents where a single-ward member has been suffering from a long-term illness.

Finally respondents to the questionnaire were asked whether the criminal offence relating to non-registration and declaration should be kept even if councils had powers to suspend and/or disqualify. This was not a question raised in the consultation, but it does seem to flow from the extension of administrative sanctions. There was general support for retaining the offence, however, there have only been two successful prosecutions under the current regime since 2012 and there are concerns that the police are not predisposed deal with these cases.

Table 15: It is a criminal offence to fail to register or declare certain interests known as Disclosable Pecuniary Interests (DPIs), and conviction can lead to disqualification from holding office for up to five years. If the power to suspend or disqualify councillors was reintroduced do you think the Government should keep the criminal offence or repeal it?

Base: 800

An independent body

The final substantive part of the consultation related to whether there is a need for an independent national body. The consultation foresaw two distinct roles for it – investigating more significant cases; and acting as an appeals body. We have separated out these two separate roles.

Case handling

Respondents to the questionnaire were asked a series of questions about whether the standards framework should remain wholly devolved for case handling as now or have some other external or national infrastructure. This related both to general case handling and appeals. The consultation paper asks if standards committees should have the power to suspend or if that should be reserved to an independent body.

Table 16: At the moment the standards framework is devolved totally to individual local authorities. If the Government introduces stronger sanctions for breaches of the code of conduct, which if any of the following is your preferred option?

Base: 800

The results of the questionnaire show an even split between respondents on three options, with only 15 per cent wanting a completely national system. The LGA will need to consider if and how an independent body might form part of the standards framework.

Appeals

Respondents were also asked about the proposal in the consultation for a national appeals body. Article 6 of the European Convention on Human Rights guarantees the right to a fair trial where an individual’s liberty or livelihood is at stake. It has generally been held that Article 6 does not apply to the current standards framework as the limited sanctions do not affect one’s livelihood or liberty, whereas a power of suspension would impact on one’s ability to be a councillor or possibly income. Thus, with more meaningful sanctions, there is an argument that Article 6 would be engaged, and a councillor would be entitled to a hearing in front of ‘an independent and impartial tribunal’. On the other hand, it could be argued that a period of suspension does not prevent a councillor from holding office as such, it merely interrupts it. Unlike the removal of the right to practice of a doctor or teacher (which is normally permanent), even the disqualification of a councillor from holding public office will be for a temporary period so Article 6 would not be engaged. Additionally, a 2019 court case ruled that the standard to be applied to councillor code of conduct cases is that of ‘fairness’ which in its simplest form means the councillor must know what they are accused of and be given the opportunity to comment on the allegations. 

It is therefore by no means clear that an appeal stage must be provided for. Even if Article 6 applies, it simply requires a fair, impartial and independent process, not necessarily an appeal stage. Thomson Reuters Practical Law notes “Officials and public authorities commonly think of Article 6 as providing a right of appeal against their decisions. While in practical terms, Article 6 often requires that right of appeal, it is important to remember that it does not, strictly, require any appeal but simply a fair hearing.”

It has been argued that the current arrangements would not automatically meet that definition as a standards committee comprised only of fellow councillors could be seen as not independent or impartial. Having independent voting lay members would go some way to ameliorating this situation but the Government consultation seems to believe that an independent appeals body is needed to be fully compliant. This is not a unanimous opinion. Nevertheless, there was some consensus in both the questionnaire and the focus groups that some right of appeal would be welcome, even if it were not a national body as the Government suggests.

Respondents were asked to consider a range of possible options with regards to appeals process, including what cases should be eligible for appeal and what body should be responsible for hearing appeals.

Table 17: At present there is no statutory appeals process against a finding that a councillor has breached the code of conduct. If additional sanctions are introduced, an appeals process is likely to also be introduced. In this case, which, if any, of the following is your preferred option?

Base: 805

Table 18: If an appeals process was put in place, which of the following would be your preferred appeals body?

Base: 802

Appeals mechanisms were also discussed in great depth at the focus groups. Any appeals mechanism would have costs implications so there were discussions on how a regional panel could be constituted, funded and supported, as this was seen as a preferred option in the questionnaire results. A comment was also made that having a wholly-independent standards committee at a local level could satisfy the ‘independent and impartial’ test. There was certainly a consensus that the more independent elements were involved at a local level the less need there was for a complex appeals architecture and that it was something that could be managed locally by arrangements between authorities or at a regional level.

There was also some discussion about whether a complainant should have a right to appeal if they felt a hearing had thrown their complaints out on political grounds, or even against a decision not to investigate. While there was some sympathy to a complainant being able to appeal against a finding of no breach at a hearing, there would be concern at appeals against a decision not to investigate in the first place as this may encourage vexatious complainants to continue to pursue matters and undermine local discretion with resource implications. The consensus in any case was that there would need to be clear guidelines about how any appeals process should work. 

In keeping with feelings of proportionality and reinventing complex and burdensome bodies and processes, the general view was that appeal should only be an option for more serious cases given cost implications, as well as the officer and councillor time and resources it could absorb and building delay into the system. 

Publicity

Respondents to the questionnaire were asked to consider options relating to publishing the outcomes of cases, including the option of having breaches published on councillors’ personal profile alongside their register of interests. This is not mandatory at present. The consultation paper has also asked whether councils should be required to publish a list of allegations and the outcome of investigations.

Table 19: There is no legal requirement to publish the outcome of standards cases (but they may be subject to disclosure under the Freedom of Information Act 2000). Which, if any, of the following is your preferred option?

Base: 805

Table 20: Do you think it should be a requirement that breaches of the code of conduct are recorded under a councillor’s authority website profile alongside their register of interests?

Base: 805

Half of respondents thought that it should be mandatory to publish only breaches of the code, showing a split of opinion for the other options. Additionally, more than half of both councillors and non-councillors thought information about code breaches should be easily accessible via the councillor’s record on council websites. Feedback on this points indicates that this would not be supported for history breaches decided before the new framework was introduced.

Other issues

The remainder of the paper looks at issues, either that were discussed in the questionnaire or focus groups but were not in the consultation paper, or else issues in the consultation paper we did not specifically address. These tend to be more ‘technical’ details or generic questions about the system.

Early resolution

The focus groups discussed the need for an emphasis on early resolution of complaints wherever possible. That is already built into most council processes where an MO will generally have as part of their process the options of taking no further action, of carrying out a formal investigation, or of seeking informal resolution. The LGA guidance on effective case handling reiterates that and explores the options. The LGA may wish to emphasise that there should be local early resolution wherever possible and ask the Government to ensure any new arrangements do not interfere with this local power or reinforce it. 

Parish councils

The current framework makes principal authorities responsible for dealing with complaints against parishes. The consultation paper is silent on this, but it can be a substantial cost burden at times for principal authorities and absorb a lot of MO time. This point was raised in particular at focus groups with concerns that this burden could increase further under proposed new arrangements if more meaningful sanctions are available, and more widely, if there is a move towards bigger and fewer principal authorities. Options discussed included powers to recharge any investigation costs back to the parish council or make the parishes responsible for their own case handling. On the other hand, many parishes are usually very small and would not themselves have the resources to manage investigations and the clerk may be in a difficult position investigating their own councillors in a very localised and insular setting without external support. Practical solutions to this issue clearly require further consideration.

Statutory protection for officers

In the focus groups some officers (and councillors) expressed the concern that MOs may come under even greater political pressure if there is the power to suspend or even disqualify councillors. It was therefore felt that, as part of these reforms the Government look again at strengthening the statutory protection from disciplinary action or dismissal for statutory officers as recommended by the Committee on Standards in Public Life in their 2019 report into Local Government Ethnical Standards.

Resignation of councillors during an investigation

Under the current framework, if a councillor resigns before a case is completed, the general legal consensus is that the investigation comes to an end and the councillor cannot be found in breach of the code of conduct. The position is different in Scotland and Wales where councillors can still be found in breach even after resigning. If powers of suspension or disqualification are introduced, there is a danger that councillors could resign to avoid being sanctioned but then immediately seek re-election.

The consultation asks if it should be made clear that investigations may still carry on and come to a finding. This was not discussed in the questionnaire or focus groups due to a pressured timeframe. When the power previously existed in England to continue an investigation (as it does still in Scotland and Wales) decisions were based upon proportionality of continuing. Factors considered including whether the matter was so serious that it could result in suspension or disqualification as there was no point continuing if it would not; or even if so, what were the prospects of the individual standing for election for that council again – for example if they had left the area.

Local case handling

The consultation asks a question which was not addressed in the questionnaire though it was touched upon in the focus groups. This is whether matters which have been referred for investigation should be heard by a standards committee or whether some matters should be heard at full council at the authority’s discretion.

The focus groups were keen to stress that the new arrangements should not do anything to damage the MO’s ability to triage cases or resolve them informally at any stage during the process. We have been aware of cases where there may have been a ‘technical breach’ (for example a slight delay in registering an interest which has been rectified) where even having a standards committee hearing could be disproportionate.

There was also concern in the focus groups that more serious sanctions run the risk of greater politicisation of complaints and attempts to ‘stifle’ the opposition or smaller groups. This risk could be intensified if hearings are held at full council rather than at a trained standards committee, particularly if the standards committee has independent representatives.

Vexatious complaints

The issue of how to deal with (or even stop) vexatious complaints was raised at the focus groups and also in the Government’s consultation. This is to some extent an issue with any complaints system but something that politicians are potentially more vulnerable to. It does rely therefore on good filtering of complaints and again concerns were raised that nothing should be done to interfere with early triaging or resolution of complaints. The consultation asks a general question on how to ensure fairness and objectivity and reduce the incidence of vexatious complaints. Councils do already have policies in place in general to deal with vexatious correspondents, but this can clash against the public’s ‘right to complain’ so those powers may need clearer expression somehow that councils may have the right not to deal with certain complaints.

Whistleblowing

The consultation asks if any further measures are needed to ensure people feel that they can come forward and raise a complaint without fear. To some extent, this is dealt with by provisions in the LGA Model Councillor Code of Conduct about not seeking to intimidate or victimise people who are involved in the complaints process, whether as complainant, witness or investigating officer. This was not specifically considered as they were more about individual experiences as a complainant. Where the issues were touched upon in the focus groups the concerns were in fact more about ensuring the system was fair to accused councillors and they were well supported. 

Protected characteristics

The final question in the consultation paper asks for views on whether any of the proposed reforms would particularly benefit or disadvantage individuals with protected characteristics. In our engagement with the sector no concerns about protected characteristics were raised, although this of course does not mean there are none.