Draft Conduct of Members (Model Code of Conduct) (Wales) Order 2001

Response of the National Assembly for Wales Liberal Democrat Group

Scope

As defined the code would apply to members at public meetings. However, it is not clear if the code apply to a member at a ‘political’ public meeting as opposed to at a ‘council’ public meeting? We believe that it should not apply in the case of a ‘political’ public meeting.

Accountability and openness

The code states that members “must not prevent another person from gaining access to information to which that person is entitled in law”. This could potentially mean councillors being compelled to disclose discussions that took place in confidence with constituents at a councillor’s surgery. In our opinion this section could benefit from stronger wording to make it clear that information given in confidence should only be disclosed in certain specified circumstances.

Duty to uphold the law

6 (a) states that members “must not in their official capacity or otherwise commit a criminal offence or cause one to be committed”.

It is already the case that conviction for a serious criminal offence – where the sentence is not less than 3 months – results in a members automatic removal from office. This section will allow a sanction – which could include the removal from office – from less serious criminal offences matters which are not subject to criminal or civil law.

This section opens up a large “Pandora’s box” of potential problems. It creates the scenario where a member acquitted of a criminal offences could still be subject to a sanction under the standards procedure as they ‘had brought their authority into disrepute’. For councillors charged with criminal offences, there will effectively be the possibility of a third verdict “a bit guilty” being added to the traditional two. The ability to effectively try a councillor twice for the same act could also lead to a conflict with the Human Rights Act.

The overall aim of the provision relating to criminal offences is a laudable one – and it would be a reasonable position for options to be available of an investigation under the Code into any councillor convicted of a criminal offence – even where the sentence is less than three months.

The extension of this provision in 6 (b) to include non-criminal conduct is a much more serious and dangerous expansion of powers, however, and would effectively mean there would be no such thing as a private life for a councillor.

It is hard to think of scenarios where a councillor has not committed a criminal offence yet done something which would bring the council into serious disrepute. One possibility could be where a member was charged but subsequently acquitted of a criminal offence (or alternatively investigated but never charged) but it would be a very undesirable situation, where the standards procedure was seen as a fall back to a criminal prosecution or alternatively a system of justice which could possibly involve a lower burden of proof.

This section of the code also opens up potential Human Rights Act implications. Article 8 guarantees the “right to respect for his private and family life, his home and his correspondence”. There are a number of exemptions to this section but it would be unlikely that any of them would be interpreted to allow protection of the reputation of a council as a justification.

In our opinion non-criminal actions should not be grounds for breach of the code of conduct.

6 (c) is highly contentions in our opinion. It compels members to report other members if they believe that they have been involved in conduct which involves a failure to comply with the authority’s code of conduct.

This potentially creates a number of problems. Firstly it removes any possibility of the Monitoring Officer being able to bring a potential breach of the code to the attention of the group leader for action, initially, to be taken within the group. This is a process which was specifically noted in the LGA’s proposals for a New Model Code and is a common action for Monitoring Officers to take. Under these provisions this would not be possible, as if a potential breach was raised with a group leader then the group leader would be under an obligation to refer the matter on to the Ombudsman.

This section will make it very difficult for councillors to seek advice on standards issues from their colleagues or (assuming a similar provision is proposed in the parallel code of conduct for officers) from Council officers.

The compulsion on a councillor will also make it very difficult to deal with vexatious or malicious complaints. There are (rightly) concerns that the standards process will be open to abuse for political ends and both the LGA and individual councillors have expressed the view that such if a complainant was found to have made a vexatious or malicious complaint then this should in itself be a breach of the code.

Given the element of compulsion it is unlikely that such a proceeding would succeed but it does create a vicious circle where a councillor could breach the code by not making a complaint, but then face the risk of being found in breach if they had made complaints which were found to be without foundation.

Finally this sections also breaches a basic principle of natural justice (at least in this authors opinion) by compelling someone to make an accusation without firm evidence.

If this section isn’t removed then it should at least be amended to give some indication of the level of proof that a member requires before making a complaint to the Ombudsman, and provide an exemption where the information about a possible breach had come via the Monitoring Officer. Guidance should also be issued exempting councillors whose professional job is providing political advice to councillors from compulsion to disclose, where they become aware that a councillor has possibly been in breach of the Code of Conduct in the course of their role.

6 (d) is also contentious for similar reasons to 6 (c) and we believe that much of the same arguments apply. Again, it should either be removed or be amended to give a clear indication of the level of proof that a member requires before being compelled to report a potential breach in the law.

Selflessness and stewardship

7 (b) states that members “must, when using or authorising the use by another member of the resources of the authority, do so prudently and in accordance with the authority’s requirements and ensure that the resources are not used for the purposes of a registered political part or other political grouping”.

This perhaps needs further clarification as to where uses of resources for a political group within in the Council are permissible and where they are not. Meetings of political groups, for instance, are a fundamental part of the function of a local authority and resources should be able to be used for such things as administering group meetings and producing minutes of group meetings. A press release from a member of political group, or on behalf of a political group should, in our opinion, be permitted to be sent using council resources such as a council fax line or e-mail. However, a distinction should be drawn between promoting and administering the work of the group, and the use of resources for strictly party political campaigning purposes.

Objectivity and Propriety

Section 8 as a whole, and in particular 8 (c), could be interpreted as implying that members must not make up their minds on decisions prior to all information and advice being made available. However, this could preclude members from voting on issues where they have previously expressed a clear view either in favour or against. Such a situation is, in our opinion, unfair. A member may have been elected, for instance, as a direct result of taking a clear stance on a certain issue. It would be wrong for that member to therefore be denied a vote on that issue as this could effectively result in the disenfranchisement of his or her electorate.

The situation with regard to quasi-judicial functions also needs clarification in relation to a member who sits on a committee with a quasi-judicial function. A key part of the decision-making process relating to quasi-judicial decisions, such as determining licensing and planning applications, is the consideration of objections from local ward members. But where a local ward member is a member of the committee at which the decision will be taken then he or she may be unable to make such an objection as this would mean they could be construed as reaching a decision contrary to 8 (c). In our opinion, this is not an acceptable situation. We believe that members should, for instance, be able to lodge objections to licensing and planning applications in their wards, and collect petitions relating to applications, without subsequently being denied the ability to vote on those applications.

Declaration and Registration of Interests

Currently the code of conduct categorises interests into several categories and members must either declare and withdraw, simply declare or declare and speak but not vote. The current arrangements are confusing to members and less than transparent to the public – in particular in situations where a member declares an interest, withdraws from voting but continues to play a part in the debate.

The new Model Code clarifies certain areas where a member does NOT have a personal interest. This greatly clarifies some areas of the current code and is to be welcomed.

In Sections 13, a definition is used that an interest must be declared in relation to a decision taken under delegation “if a member of the public might reasonably perceive a conflict between the member’s role in taking that decision on behalf of the council as a whole and the member’s role in representing the interests of constituents in the member’s ward”. Clearly such a distinction has to be drawn, but what a member of the public could perceive as reasonable or otherwise is clearly open to interpretation. Could this wording therefore be tightened to give a clearer definition? A similar problem my exist with Section 14 (3) which contains a comparable clause.

Section 17 (d) defines a meeting as including any meeting where members or officers of the authority are present. Would this therefore include a Group meeting, or an informal discussion between two councillors, or a councillor and an officer? This could be unenforceable and perhaps needs clearer definition.

Register of Members’ Interests

We believe that the list of items which must be declared is a reasonable one. However, the ‘catch all’ definition in 20 (a), which calls for members to notify the monitoring officer of any “other matter that they believe a member of the public might reasonable regard as likely to influence them” could perhaps be tightened.

The registration of gifts and hospitality

All members will be required to register hospitality and gifts received over a certain limit which is still to be defined. Gifts offered but not accepted need not be declared. Both these provisions seem reasonable. In our opinion all gifts and hospitality over £25 should be declared and additionally councillors should be prohibited from accepting gifts or hospitality worth more than £250.

Furthermore there should also be a section emphasising the importance of councillors having due regard for public perception when accepting gifts of hospitality. The circumstances of the gift can often be as relevant as the amount. There is after all a world of difference in perception between a councillor attending a dinner with the Audit Commission (value £60) and a “pie & pint” from a property developer (value £10).