27/02/2025
This is the third article in Bevan Brittan’s series considering the potential impacts of the English Devolution White Paper, this time looking at the standards element.
As a governance team, within the wider local authority team here at Bevan Brittan, a steady and significant part of our work consists of standards matters, including undertaking investigations and producing investigative reports, and assisting authorities with their hearings. What comes to us is, of course, more often than not the difficult stuff. These matters are put out for instruction not just because of capacity issues in-house but often on the basis of a perceived need for independence and a separation from the authority because of political sensitivities (both small and large ‘p’), because of the severity of the issues, or because of the nature of the individuals concerned. On the basis of the work we undertake, there appears to us to be a greater number of complaints concerning a lack of civility in political discourse (to put it politely), a number of which involve apparent threats of violence, and a significant group of members who collect findings against them as some sort of badge of (dis)honour of which they are perversely proud. When we speak to our colleagues in other firms who undertake this work, we all tend to say this same thing, as do groups like the LGA in their campaigns.
Very recently, we saw that a councillor was jailed for 18 weeks for harassment of the local authority’s senior staff. The Council had tried dealing with the councillor’s poor behaviour through the standards system some years earlier, and in a press release stated “the limited sanctions available through this legislation did nothing to stop or modify Councillor Ford’s behaviour and the intervention through the court system was the only avenue available.” That is at the extreme end, most are not.
Most worryingly, despite the amount of allegations that are being investigated, we hear regular reports of senior officers who feel bullied or improperly attacked but who respond with “what’s the point? There are no teeth to the system!”
Behind this, we must remind ourselves that local authority members are now arguably the least regulated they have been since 1927. The approach of the changes of 2011 was that the ballot box and party discipline would be the arbiter of such matters. The political parties and groups have by and large done their bit, but that falls down when members who have lost the whip continue in their personal approach to political life, in situations where the pressure is to maintain every vote, or within the groups that maintain little or no discipline. We have seen many examples where members have acted in an outrageous manner, in-person and online, but have been returned at the ballot box (sometimes with a significant increase in the majority of votes). There are likewise several instances of members who have been subject to a criminal conviction, including for defrauding their own authority, but have refused to resign and continued to hold their seat in the Chamber because their sentence was under three months.
The way we have often described this over the last few years is as a pendulum. The pendulum has swung back and forth, through the years of surcharge, scandal, the Standards Board for England, and then to the current position, where it is held at a point where balance must mean that it is due to swing back. Indeed, the English Devolution White Paper has stepped in and alongside it the consultation on ‘strengthening the standards and conduct framework for local authorities in England’.
This proposes:
- the introduction of a mandatory minimum code of conduct for local authorities in England
- a requirement that all principal authorities convene formal standards committees to make decisions on code of conduct breaches, and publish the outcomes of all formal investigations
- the introduction of the power for all local authorities (including combined authorities) to suspend councillors or mayors found in serious breach of their code of conduct and, as appropriate, interim suspension for the most serious and complex cases that may involve police investigations
- a new category of disqualification for gross misconduct and those subject to a sanction of suspension more than once in a 5-year period
- a role for a national body to deal with appeals
Within this, the consultation underscores the comments made by the sector, including the committee on standards in public life, in the following terms:
“Feedback from the local government sector in the years since the removal of the power to suspend councillors has indicated that the current lack of meaningful sanctions means local authorities have no effective way of dealing with more serious examples of member misconduct.
“The most severe sanctions currently used, such as formally censuring members, removing them from committees or representative roles, and requiring them to undergo training, may prove ineffective in the cases of more serious and disruptive misconduct. This may particularly be the case when it comes to tackling repeat offenders.”
It goes almost without saying from our comments above that the time is indeed right for the pendulum to swing back to a point where meaningful sanctions, controls, and limits on the part of elected members are reintroduced. To do otherwise arguably besmirches the name of the overwhelming majority of members who act decently and respect the public they interact with, those who work for and with them, and their fellow politicians, in order to deliver for their communities. There is much to learn from other legal frameworks and nations.
The question of enforcement is a part of the conversation. In many obvious examples the CPS have not pursued prosecutions in respect of a failure to disclose disclosable pecuniary interests, either because they felt it not a priority in the public interest and wanted to ration their own resources and those of the police, or because of their apparent failure to understand the complexities and nuances of local government. On occasion they have sought to bring criminal proceedings of their own volition where a monitoring officer would not, certainly showing that need for further understanding. So should it be the police and CPS who make a recommendation to the DPP, or should it be someone else? This goes beyond the question of a national appeals body, but should be addressed.
This conversation then leads to a secondary question which the consultation does not ask, which is how to respond not just to poor behaviour in terms of civility and conflicts of interest, but to how to hold those to account whose actions have been reckless and self-serving to such a degree that it can only be called an abuse of power, and as a result of which substantial loss has been caused to their authority. There is a wider accountability question many are now asking, part of the response to which we have seen reflected in the Financial Reporting Authority announcing its investigation into accounting activities at Thurrock and elsewhere.
It is now some 25 years since the possible imposition of surcharge disappeared; the straight forward concept that if a person perniciously, recklessly and deliberately misuses monies from the public purse, then the public purse should have the ability to get it back from them directly. The high watermark of the Porter affair saw to that, replacing the regime with the member code of conduct and a framework of suspension or removal that was vaguely akin to the possibilities for a wrongful action by a company director.
Added to that change was then the current legislative framework introduced in 2011, created in an environment in which the then Secretary of State:
- advised local authorities to act more commercially to create income, in the words of the guidance issued, to sell services and “undertake imaginative and joint ventures” to do so;
- advocated that “in a time when members have executive responsibilities”, authorities “should be “scrapping the post of chief executive entirely”;
- reduced the protections for statutory officers to make it “easier to abolish such posts without having to fork out expensive pay-offs”; and
- advised councils to make creative use of their reserves to address short term costs.
This created what may be referred to as a permissive legislative environment. It is one in which the voices of those who wish to speak truth unto power have been weakened and in which a number of politicians, officers and others, who consider the existence of governance strictures and the opinions of anyone who raises risk and risk management as a blocker to progress to be removed, gone around or ignored, have taken advantage of their political support (small ‘p’ or large) to promote schemes and policies that should never have been implemented once examined in the professional light of day.
The protection from personal liability of members and officers as an indemnity is conditional upon their actions being bona fide for the purpose of executing the legislation they are acting upon (in the words of s.265 of the Public Health Act 1875 and s.39 of the LG(MP)A 1976), or to not amount to deliberate wrongdoing or recklessness on the part of that member or officer (in respect of an indemnity granted under the Local Authorities (Indemnities for Members and Officers) Order 2004). This condition means that an authority, or anyone else with cause, may hold a member or officer personally liable for their action, or failure to act, in those circumstances. An action for this, and for breach of trust, therefore remains a potential. Presumably because of the cost involved relative to what may be gained, since Porter v McGill, we are unware of anyone who has been made liable in this way.
The question, however, is how far the pendulum should now swing back in order to achieve the right kind of balance between civility, freedom of expression, the opportunity to take risk where there is opportunity, and the protections everyone involved deserves? We are certain that it must be brought back from its current permissive consequence free extreme, and that circumstances where individuals have acted wrongfully or have been reckless to the point of abusing their powers, should be held to account. The reforms must, therefore, go beyond a reintroduction of protections for statutory governance officers and a code of conduct regime with teeth. With the days of surcharge long gone and breach of trust almost never used, the sector cannot rely on the extreme of misconduct/misfeasance in public office alone as a further deterrent. In the light of the section 114 reports on poor governance and the scandals behind them, does the sector require more than the threat of disciplinary action under employment contracts or action via the standards regime (refreshed or not) to deal with its complex issues and characters? Time for a brand new version of the old district audit, one with teeth and an understanding of the sector?
That is a matter for those responding to the consultation, but what we would urge is that the consultation is not allowed to be an opportunity squandered, and that as many respond as is possible before it closes at the end of this month.
The local authority governance team at Bevan Brittan contains a number of experienced former monitoring officers and deputy monitoring officers. David Kitson, Philip McCourt, Victoria Barman, Kirsty Cole and Hannah O’Brien are regularly instructed on standards matters, and provide support and advice to local authorities around the issue of section 114 and section 5 reports.
Originally published by Local Government Lawyer on 14 February 2025
