Clause 7 - the whistle-blowers'
clause
69. While our terms of reference did not explicitly
invite comments on the Code of Conduct itself, many of our witnesses
raised concerns about specific provisions of the Code and the
ways in which they affected the work of the Standards Board. Clause
7—popularly termed the whistle-blowers' clause—has
been a matter of particular concern. Clause 7 of the Code of Conduct
states that
A member must, if he becomes aware of any conduct
by another member which he reasonably believes involves a failure
to comply with the authority's Code of Conduct, make a written
allegation to that effect to the Standards Board for England as
soon as is practicable for him to do so.
70. The Local Government Association argued that
this provision tends to "lead to more vicious and vexatious"
complaints.[78] Durham
Standards Committee agreed, stating that the clause "stimulates
people or gives them an excuse" to make allegations that
otherwise might not be reported to the Board.[79]
Other witnesses believed that the clause was not only unclear
in practice but also too prescriptive in intent, and in some instances
argued for amendment and in others, deletion from the Code.[80]
71. We have already discussed the difficulties encountered
by the Standards Board, particularly in its early days, as a result
of the volume of trivial, vexatious and malicious complaints.
We are not convinced, however, that removal of Clause 7 from the
Code of Conduct would provide any significant relief. The primary
cause of the problem was the Government's failure to put in place
regulations to enable local investigation in a timely fashion,
not the duty placed upon councillors to report suspected breaches
of the Code. Moreover, as the Minister argued, "people who
want to make vexatious or malicious complaints will do so, and
do so in any context".[81]
72. The purpose of Clause 7, as the Audit Commission
explained, is to "give confidence to members of the public
that wrongdoing will not be covered up".[82]
There is a risk that removing the Clause completely would send
exactly the opposite message both to members of local authorities
and to the public and thus serve to undermine the primary aim
of both the Code and the Standards Board to promote confidence
in the ethical framework in local government. We agree with
the Committee on Standards in Public Life in their statement that
"the principle that the Code should support an organisational
culture that encourages the reporting of wrong-doing by others
is at the heart of ensuring high standards in public life".[83]
73. The Code of Conduct could, nevertheless, be clearer
on the dichotomy between discouraging a culture of collision and
placing inordinate pressure on elected members who may feel compelled
to make complaints unnecessarily. There should be scope within
Clause 7 of the Code of Conduct for members to exercise judgement
in distinguishing between rumours and well-founded suspicions.
The Code, and any guidance produced on interpretation, should
reflect this.
74. Even though we have rejected the suggestion that
Clause 7 should be removed from the Code, it is relevant to examine
other ways in which the Code might be amended to discourage vexatious
and malicious complaints. We have considered the possibility,
suggested by some witnesses, that raising vexatious, malicious
or personally or politically motivated complaints become a breach
of the Code. However, we agree with the Standards Board that such
a change could
only impact on those covered by the Code - members.
The further provision would not serve as a warning or corrective
to members of the public against making false or politically motivated
complaints. Unwittingly, the provision could also act as a deterrent
for members making complaints where they do have legitimate concerns
in case subsequent investigation of the compliant finds the member's
concerns to be unfounded.[84]
Moreover, where a member is considered to have brought
their authority into disrepute by knowingly making false complaints,
this could be dealt with under other provisions within the Code
of Conduct as currently drafted. We do not support the proposal
that knowingly raising false allegations should be a specific
breach of the Code of Conduct.
75. It has also been suggested that Clause 7 might
be amended to reduce its scope so that the duty to report potential
breaches of the Code extends only to activities in members' public
lives. This may alleviate the concerns of some members who feel
that the current wording of the Code places an "onerous and
inappropriate duty on members" to report potential breaches
arising out of other members private lives.[85]
The Standards Board pointed out that this would not prevent
complaints arising out of members' private lives as these would
still be possible under provisions relating to disrepute but it
would remove the obligation to do so. We recommend that
Clause 7 be amended to reduce its scope to include only complaints
arising from members' activities in public life.
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