Select Committee on Delegated Powers and Deregulation Second Report


PART III: CONDUCT OF LOCAL GOVERNMENT MEMBERS AND EMPLOYEES

Introduction

164.  The delegated powers in this Part as introduced are virtually identical to those that appeared in Part II of the draft Local Government (Organisation and Standards) Bill, published as part of the document Local Leadership, Local Choice, and with the paper A Stronger Voice for Local People in Wales. As mentioned in the introduction to Part II above, the draft Bill was submitted to the Committee for their consideration, and the Committee reported in July 1999. The Committee concluded that there were no delegated powers in the draft Bill which they would need to draw to the attention of the House.

165.  The main change from the draft Bill is the addition in clause 53 of a delegated power for the Secretary of State to issue regulations on the registration and disclosure of interests. The Government also proposes to add two further powers (detailed at the end of this section). The first of these is a power for the Secretary of State to confer further powers on standards committees. This responds to a recommendation from the Joint Committee that considered the draft Bill. In addition, the Government is minded to provide the Secretary of State with a power to issue guidance on the qualifications of Monitoring Officers.

The Powers

CLAUSE 34: PRINCIPLES GOVERNING CONDUCT OF MEMBERS OF RELEVANT AUTHORITIES

166.  As in the draft Bill, subsection 34(1) gives the Secretary of State order-making powers to specify General Principles of Conduct for local authority councillors in England.

167.  A draft list of guiding principles was initially drawn up by Lord Nolan's committee on standards in public life and published in the White Paper Modern Local Government: In Touch with the People. The principles are intended to provide a guide for councillors' behaviour in the execution of their duties and will underpin the new ethical framework. The model code of conduct referred to in clause 35 will be guided by them.

168.  By virtue of subsection 34(3), the Government will consult local government and others before laying an order containing the general principles. Although the principles represent what may be regarded as immutable values in relation to conduct in public life, it is possible that, over time, they may benefit from clarification or refinement. For this reason, Government believes the principles should be set out in secondary legislation, rather than on the face of the Bill. In recognition of the importance that Parliament will attach to the principles, the Bill provides for draft affirmative resolution procedure of orders made under this clause.

CLAUSE 35: MODEL CODE OF CONDUCT

169.  Subsection 35(1) gives the Secretary of State order-making powers to issue a Model Code of Conduct for members in England. Again this is unchanged from the position set out in the draft Bill.

170.  The model code of conduct is integral to the successful implementation of the new ethical framework. It replaces a number of statutory instruments implemented in an ad hoc fashion over time that make the present, non-statutory, code of conduct difficult for councillors to understand and follow[26]. The existing code also takes no account of the changing rôle of councillors envisaged under the new political management structures in part II of the Bill.

171.  Developing a successful model code will require close working between central and local government. It is important to ensure that the code succeeds in interpreting the general principles in a clear and useful way which relates to the activities that councillors actually undertake. Discussions between DETR and the Local Government Association on the development of the model code have already begun. By virtue of subsection 35(4), the Secretary of State must consult widely on the content of the model, and subsection 35(5) enables him to invite representatives of local government to propose a model code. These procedures allow for a high level of external input to the code, while ensuring that the final responsibility for its content rests with Ministers, accountable to Parliament.

172.  The draft affirmative resolution procedure applying to the order containing the general principles will ensure that Parliament's views are taken into account in devising the framework for the code. Given this, and the consultative process that will underpin the development of the model, the orders under clause 25 will be subject to negative resolution.

CLAUSE 38: STANDARDS COMMITTEES

173.  Subsection 38(5) gives the Secretary of State powers to issue regulations on the size, composition, membership and proceedings of local authority standards committees. This clause is as published in the draft Bill except that the power has been slightly widened to enable the Secretary of State to also prescribe the method of appointment for independent members of standards committees.

174.  The Government believes that, subject to a small number of minimum requirements, the responsibility for determining the membership of standards committees should rest largely with individual authorities. The minimum requirements (set out in subsections 38(3) and (4)) are that:

  • the committee should contain at least two members of the council and one independent member;
  • an elected mayor or executive leader will be prevented from being a member of the committee;
  • any member of the executive will be barred from chairing the committee.

175.  The Government recognises, however, that public confidence in their council will depend to a significant extent on their confidence in the standards committee. This confidence will be enhanced if such committees operate within a common framework regarding issues such as:

  • the appointment process for independent members;
  • the conduct of business;
  • quorums, including the attendance of the independent member.

176.  In developing any such regulations, the Government will consult closely with local government and others with an interest in probity issues. The regulations will contain relatively detailed aspects of councils' activities, and the negative resolution procedure is therefore appropriate.

CLAUSE 39: FUNCTIONS OF STANDARDS COMMITTEES

177.  Subsection 39(4) provides the Secretary of State with powers to regulate the functions of standards committees. This clause is as published in the draft Bill.

178.  In the Government's view, all standards committees should be required to discharge a range of core responsibilities with regards to members' conduct. These are set out in subsections 39(1) and (2). The Government does not want to limit the rôle of standards committees to these functions. Indeed, it can see advantages in committees taking on a wider range of responsibilities (for example, overseeing the authority's staff appointment and disciplinary procedures). However, it would not be appropriate for standards committees to undertake tasks—such as scrutinising decisions of the executive—relating to substantive policy-making or decision-taking. If it did so, there would be a risk of conflicts of interest developing.

179.  The Standards Board will be able to issue guidance in relation to the functions of standards committees under subsection 39(6), and the Government expects that councils will abide by this guidance. Given the important rôle that such committees play, however, the Government believes that this guidance should, if necessary, be supported by statutory requirements. Any such regulations would, like the guidance, be subject to full consultation. The Government considers that the negative resolution procedure provides for a suitable degree of Parliamentary scrutiny of such regulations.

CLAUSE 40: STANDARDS BOARDS

180.  Subsection 40(5) provides that the Secretary of State may, by order, add to the list of specific functions of the Standards Board for England. This clause is as published in the draft Bill, other than that the draft Bill did not prescribe any specific functions for the Standards Board, relying solely on regulations in this respect.

181.  The Bill now sets out the main functions of the Standards Board. The Government does not envisage adding to the list in the short term. However, it is sensible to retain a degree of flexibility so that the functions of the Standards Board are able to evolve in response to changing circumstances. For instance, the Board may in future be able to play a valuable rôle in providing advice to other countries undertaking initiatives on the conduct of elected representatives. Bu using the power in subsection 40(5), the Secretary of State could enable the Board to develop its rôle in such ways. Any such additional functions are likely to be marginal to the main purposes of the Board. The Government believes that the negative resolution procedure provides a suitable degree of Parliamentary scrutiny for such orders.

CLAUSE 50: CASE TRIBUNALS

182.  As in the draft Bill, subsection 50(6) provides that the Secretary of State may issue guidance with respect to the composition of case tribunals.

183.  This guidance will be used to ensure that case tribunals are chosen using consistent criteria, and will cover the requirements for tribunal membership including such matters as legal expertise and local authority experience.

184.  These are essentially operational rules for the president of the Adjudication Panel. It is therefore appropriate for them to be covered in guidance rather than legislation. The Government would work closely with the Council on Tribunals in developing such guidance.

CLAUSE 51: ADJUDICATIONS

185.  This clause is as published in the draft Bill, except for the addition of the provision at subparagraph 51(4)(c)(ii) that enables the President of the Adjudication Panel to determine the procedure to be followed in matters specified in regulations. Subsection 51(2) provides that the Secretary of State may make regulations containing such provisions as appear necessary or expedient with respect to adjudication by case tribunals. Subparagraphs 51(4)(a) to (f) set out that these regulations might include provision:

  • for requiring persons to attend to give evidence and produce documents and for authorising the administration of oaths to witnesses;
  • for requiring persons to furnish further particulars;
  • for prescribing the procedure to be followed in adjudication's conducted by a case panel, including provisions as to the persons entitled to appear and to be heard on behalf of the persons giving evidence to a case tribunal;
  • for the award of costs or expenses;
  • for the taxing or otherwise settling any such costs or expenses (and for enabling such costs to be taxed in a county court);
  • in the registration and proof of decisions and awards of case tribunals.

186.  The regulations will be drawn up in close consultation with the Council on Tribunals. Their primary purpose is to ensure that case tribunals work fairly and effectively. The Government believes that Parliament should have an opportunity to assure itself of this, and has therefore made the provisions the subject of regulations—subject to the negative resolution procedure—rather than statutory guidance.

187.  We expect that regulations made under this provision will need to change over time in order to reflect the changing advice of the Council on Tribunals. The Council has a statutory responsibility in respect of the procedural rules for tribunals and they will be consulted fully on any proposed regulations under this clause.

CLAUSE 53: DISCLOSURE AND REGISTRATION OF MEMBERS' INTERESTS

188.  This clause provides the Secretary of State with regulatory powers with regard to the disclosure of interests by councillors, the maintenance of registers containing those interests and consideration of requests by councillors for dispensations to speak and/or vote when they have declared such interests that would otherwise prevent them from doing so. The Government is, however, considering whether it would be more effective to include these issues within the code of conduct and may seek to remove this provision from the Bill if this can be achieved successfully.

189.  As the Bill stands, these provisions aim to replace a number of existing legislative provisions implemented in an ad hoc fashion over time that make the present, non statutory, rules on interests very difficult for councillors to understand and follow. The existing system also takes no account of the changing rôle of councillors since the rules were introduced. A revised framework of interests will make it easier for councillors to act within the new code of conduct, and may make breaches of the code less likely.

190.  It is important that this power is exercised by Ministers accountable to Parliament so that it has sufficient legislative force to be adopted by all local authorities in England. The Government believes that the specific and complex details required for these regulations make the negative resolution procedure the most appropriate form of Parliamentary scrutiny.

CLAUSE 54: CODE OF CONDUCT FOR LOCAL GOVERNMENT EMPLOYEES

191.  As published in the draft Bill, this clause gives the Secretary of State new order-making powers to issue a code of conduct for qualifying employees of local authorities.

192.  At present, local government employees are subject to a voluntary code of conduct, which was drawn up by local authority associations in 1994. Most councils have adopted this code for their employees. Alongside the introduction of a new code of conduct for councillors the Bill puts in place comparable arrangements for employees. This is intended to provide a consistent guide for council employees on the execution of their duties and will be included within their terms and conditions of employment.

193.  The code for employees is an important part of the new framework. Enforcement of the code, where necessary, will be through disciplinary procedures under existing employment law. That is why employee conduct has not been brought within the jurisdiction of the Standards Board. The Government believes that its policy objectives are best served in this case by a single statutory code to ensure parity for council employees throughout England and Wales. The code will be developed in close consultation with both central and local government and union representatives prior to its introduction. However, the Government is aware that the Bill as drafted does not include suitable provision for the employees' code to cover employees of town and parish councils, and will therefore seek to amend clause 54 to this effect. As with the model code of conduct for councillors, the Government believes that the negative resolution procedure provides a suitable degree of Parliamentary scrutiny for the employees' code.

Guidance to be issued by those other than the Secretary of State/National Assembly

194.  Again, as was set out in the draft Bill, Part III also contains powers for those other than the Secretary of State or the Assembly to issue guidance. Information is therefore included below on these additional delegated powers.

CLAUSE 39: FUNCTIONS OF STANDARDS COMMITTEES

195.  Subsection 39(6) provides that the Standards Board may issue guidance with respect to the exercise of functions by standards committees.

196.  It is likely that, in due course, the Standards Board will want to take the lead in detailing functions that a standards committee might take on. The Government does not want to be overly prescriptive in setting out details in regulations, as it is envisaged that there may be many non-policy functions or corporate issues that individual councils might want their standards committees to carry out.

197.  This guidance will be used by the Standards Board to disseminate good practice as particular issues become apparent over time. In effect these are operational guidelines for local authorities. It is therefore appropriate for it to be included in Standards Board guidance rather than legislation.

CLAUSE 40: STANDARDS BOARDS

198.  Subparagraph 40(6)(b) confers specific functions onto the Standards Board for England including the issuing of guidance to local authorities in relation to the conduct of their members.

199.  We envisage that this guidance will, primarily, be based on lessons learnt through the Board's contacts with local authority standards committees and Monitoring Officers, and from investigation of allegations against councillors.

200.  Such guidance will be intended to assist local authorities to attain the consistently high standards of conduct that the public expects.

CLAUSE 49: ADJUDICATION PANELS

201.  Subparagraph 49(7)(b) provides for the president of the Adjudication Panel to issue guidance on how case panels will reach decisions.

202.  This is an operational matter for the Adjudication Panel and as such the power to issue guidance on it is properly exercised by the president of the Panel. It will be for the president of the Panel to ensure that decisions made by individual case panels are consistent.

203.  The form of any guidance will be for the president to determine, in consultation with the Council on Tribunals.

New Delegated Powers

POWER FOR SECRETARY OF STATE TO CONFER FURTHER POWERS ON LOCAL AUTHORITIES

204.  During their consideration of the draft Local Government (Organisation and Standards) Bill, the Joint Committee recommended that a power of temporary exclusion of members of the authority be given to the local standards committee.

205.  If the new ethical framework is to succeed, it must operate fairly and consistently. The Government believes that all serious allegations of misconduct - those that might warrant the suspension or even disqualification of a councillor - should be dealt with by the Standards Board and Adjudication Panel. As noted in paragraph 3.19 of the Government's response to the Joint Committee, the Government recognises, however, that there may be advantages in enabling local authorities to deal effectively with less serious cases. To do so, councils would need to be able to impose a range of penalties appropriate to such cases. Such penalties might include excluding councillors from particular committees, restricting their access to sensitive information (such as contract tenders), or restricting their access to council premises handling such information.

206.  Although these penalties are less severe than suspension or disqualification, they should still be exercised fairly. Local authorities would need to secure a suitable degree of independence for the investigative and adjudicative processes, and provide suitable rights of appeal. The Government therefore intends to introduce a new order-making power which would enable Ministers to confer on councils the power to impose the sorts of penalties mentioned above. Before conferring these powers on any council, Ministers would need to be assured that it had made suitable arrangements for investigation, adjudication and appeal. The Government would expect Parliament to want to be able to scrutinise such orders, and will provide for this through the negative resolution procedure.

Guidance on qualifications of Monitoring Officers

207.  As a consequence of introducing the new ethical framework, the Government considers that the rôle and responsibilities of the Monitoring Officer should be reviewed. In particular, they will have increasing responsibility for providing advice and guidance to members on conduct issues, for supporting the standards committee within the authority and providing assistance to the ESO when required. The Government therefore intends to introduce a new clause that will have the effect of amending s.5 of the Local Government and Housing Act 1989, in order to reflect these changes. Given the increased responsibilities of Monitoring Officers there are good arguments for expecting them to be legally qualified. However, the Government believes that including such a requirement on the face of the Bill would place undue constraints on local authorities, particularly where they have a Monitoring Officer who, whilst perfectly able to carry out their duties, may not possess such a qualification. Instead, the Government is minded to provide the Secretary of State with a power to issue guidance on the qualifications of Monitoring Officers, and believes that the negative resolution procedure would provide a suitable degree of Parliamentary scrutiny for this purpose.


26   Among the Statutory Instruments and orders that will be replaced by the model code of conduct are:

 
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