PART III: CONDUCT OF LOCAL GOVERNMENT
MEMBERS AND EMPLOYEES |
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
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
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.
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
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 taskssuch as scrutinising
decisions of the executiverelating 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
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
- 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 regulationssubject to the negative resolution
procedurerather 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'
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
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
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:
- National Code of Local Government
Conduct (DOE circular 8/90);
- Local Elections (Principal Areas)
(Declarations of Acceptance of Office) Order 1990;
- Local Elections (Parishes and Communities)
(Declarations of Acceptance of Office) Order 1990;
- Local Authorities (Members' Interests)
Regulations (SI 1992/618). Back