councils (amongst others). Therefore, this right
will only apply if paragraph 12(2) of the Code of Conduct is explicitly adopted
by them. Simply adopting the mandatory provisions will not incorporate this
change. The Standards Committee will need to consider whether it wishes to make
a recommendation on this.
2.5 This
report sets out the key changes. It does not go through each and every
provision in the Code where these have remained unchanged. The new model Code
is attached as Appendix 1
3.
TEN GENERAL PRINCIPLES OF PUBLIC LIFE
3.1 The Committee may recollect that the Government
originally proposed that the ten general principles governing the conduct
of members of local authorities were incorporated into the Code. These ten
general principles are set out in the Relevant Authorities (General Principles) Order 2001 and are attached
as Appendix 2 to this
report. They do not appear in the new Code but the
Standards Board recommends that they are adopted as a preamble to the Code. The
reason for this is that the Code is interpreted in the light of these ten
principles and it makes sense therefore for them to be included as part of or
as a preamble to the Code. The Committee is recommended to incorporate the ten
general principles as a preamble to the Code.
4.
WHEN DOES THE CODE APPLY
4.1 The present Code generally applied only
to conduct when acting in an official capacity but bringing the authority into
disrepute and ‘conferring an advantage or disadvantage’ applied whether a
member was acting in their official capacity or otherwise.
4.2 The new Code
of Conduct applies to members:
(a)
Whenever they act in their official capacity, including whenever they
conduct the business of their authority or act, claim to act, or give the impression
they are acting, in their official capacity or as a representative of their
authority.
(b)
Otherwise, the new Code of Conduct does not apply to members private
life unless it is conduct which has led to a criminal conviction and could
amount to a breach of paragraphs 3(2)(c) (intimidation), 5 (disrepute) and 6(a)
(conferring an advantage).
4.3 However
the recent case concerning the Mayor of London (the Livingstone case) has meant
that only conduct carried out in an official capacity can be a breach of the
Code until primary legislation is introduced to overturn that judgment. The
Government is in the process of doing this in the Local Government and Pubic
Consultation on Health Bill but until this becomes law, only conduct in an
official capacity is capable of amounting to a breach of the Code. Therefore,
the provisions of the Code which extend into a member’s private life are not
capable of enforcement until the Bill comes into force.
5. GENERAL OBLIGATIONS
5.1 There
have been a number of changes to this part of the Code. The requirement to treat
others with respect continues. The requirement not to discriminate has been
amended so that members may not do anything which would cause the authority to
breach any equality laws.
5.2 There
is a new requirement not to bully anyone and also not to intimidate a
complainant, a witness or anyone administering any investigation or proceedings
in relation to an allegation of a breach of the Code.
5.3 The
requirement not to compromise the impartiality of those who work for the
authority continues.
5.4 There is a change to the requirement not
to disclose information. Previously, disclosure of confidential information was
only allowed if required by law or with the consent of the person authorised to
give it. The new Code now allows disclosure of confidential information if it
is reasonable, in the public interest, made in good faith and in compliance
with the reasonable requirements of the authority. This means that in order to decide
whether the disclosure is reasonable and in the public interest, a member may
need to conduct a balancing exercise weighing up the public interest in
maintaining confidentiality against any public interest favouring disclosure.
This will require a careful focus on how confidential the information is, on
any potentially harmful consequences of its disclosure, and on any factors
which may justify its disclosure despite these potential consequences. In
addition, before making any disclosure the member must comply with the
authority’s policies or protocols on matters such as whistle-blowing and
confidential information..
6. INTERESTS
6.1 There
has been a significant change to the nature of interests and the impact of
having any interests. The aim has been to simplify the provisions and to relax
the restrictions on participation. Members may recollect that the Government
proposed introducing a ‘public interest’. This has not been pursued but instead
there has been a general relaxation of the impact of prejudicial interests.
6.2 In the
previous Code a personal interest was defined as one which was registerable and
these were separately defined. A personal interest was also defined as one
where a decision on it might reasonably be regarded as affecting the member’s
individual interest or those of his/her family, friends or business more than
others in the area. Now, although registerable interests have not changed,
these are set out as personal interests and defined more clearly. In addition,
a declaration of hospitality/gift becomes a personal interest.
6.3 In
effect, there are two types of personal
interest:
A member will have a personal
interest in any business of the authority where it relates
to or is likely to affect:
(a) An
interest that the member must register.
(b) An
interest that is not on the register, but where the well-being or financial
position of the member, their family, or people with whom the member has a
close association, is likely to be affected by the business of the authority
more than it would affect the majority of:
·
inhabitants of the ward or electoral division affected by the decision (in
the case of authorities with electoral divisions or wards)
·
inhabitants of the authority’s area (in all other
cases)
6.4 There are two main changes here. The
first is that the comparison is now (for the Isle of Wight Council) with the
inhabitants of the member’s ward rather than the local authority area as a
whole. Secondly, the reference has changed from ‘friend’ to ’any person with
whom you have a close association’. In practice this may make no difference but
the need for the relationship to be a close one is more clearly stated.
6.5 A personal interest also exists if you
have registered the acceptance of a gift or hospitality (worth more than £25)
from an individual/organisation affected by the proposal being considered. This
requirement expires when that interest was registered more than 3 years before
the date of the meeting. An exemption also applies where an interest arises
solely from membership of, or position of control or management on:
(a) any
other body to which the member was appointed or nominated by the authority
(b) any
other body exercising functions of a public nature (for example another local
authority)
In these cases, provided that the member does not
have a prejudicial interest, a member only needs to declare the interest if and
when they speak on the matter. In addition, there will be a new category of sensitive
personal interests.
6.6 It is in relation to prejudicial
interests where there have been more significant changes. The main definition
remains unchanged (where the interest is one which a member of the public with
knowledge of the relevant facts would reasonably regard as so significant that
it is likely to affect the member’s judgement of the public interest). The
exemptions though have widened substantially. A member can only have a
prejudicial interest in a matter if it falls into one of the following two
categories:
(a) The matter affects the member’s financial
position or the financial position of any person or body through whom the
member has a personal interest.
Examples:
an
application for grant funding to a body on the register of interests; a
contract for services between the authority and that body; or leasing a
property to or from a close associate or member of the family. The member’s
financial position can be affected directly or indirectly, favourably or
unfavourably, substantially or marginally.
(b) The matter relates to an approval,
consent, licence, permission or registration that affects the member or any
person or body with which the member has a personal interest.
Examples: considering a planning or
licensing application made by the member or a body on the register of
interests; Licensing Act licences; consent, approval or permission pursuant to
a contractual document such as a lease or commercial contract; street
collection permit; or lottery registration.
6.7 The impact of having a prejudicial
interest has also changed. If a member has a prejudicial interest in a matter being discussed at a meeting,
they must declare that they have a prejudicial interest and the nature of that
interest as soon as that interest becomes apparent. As before, the member
should then leave the room, unless members of
the public are allowed to make representations, give evidence or answer
questions about the matter. If that is the case, the member can also
remain in the meeting for that purpose. However, the member must immediately
leave the room once they have finished addressing the meeting or when the meeting
decides that they have finished (if that is earlier) and cannot remain in the
public gallery to observe the vote on the matter. If members of the public
would not be allowed to speak, then a member with a prejudicial interest may
not speak either.
6.8 In
addition, the Code now explicitly requires that the member does not to seek to improperly influence a decision in which a member has a
prejudicial interest.
7. GIFTS AND HOSPITALITY
7.1 The
revised Code has helpfully clarified that gifts and hospitality only need to be
declared if received in connection with official duties as a member, In practice this has been
the interpretation in the past. Gifts and hospitality now become registerable
interests and like other such interests, automatically mean that the member has
a personal interest in a matter under consideration if it is likely to affect a
person who gave the member a gift or hospitality that is registered. Once three
years have passed since a gift or hospitality was registered, the obligation to
disclose that interest to any relevant meeting ceases.
8.
FINANCIAL AND LEGAL IMPLICATIONS
The report was drafted by the Interim Director of
Legal and Democratic Services and there are no additional legal comments.
9.
EVALUATION
There are a number of issues that the Standards
Committee will need to consider and these are slightly different for the Isle
of Wight Council and the Parish and Town
Towns.
For both tiers of authority the issues are:
9.1 Should
the Councils be recommended to adopt the Code of Conduct with the 10 General
Principles of Public Life?
These underpin the actual Code of therefore it is
recommended that this would be good practice
9.2 Should
the Code of Conduct be adopted unaltered?
Whilst there is scope for Councils to add their own
local codes, in the past the Committee has always recommended the adoption of
the model code with local codes being dealt with separately. This has made it
significantly easier when dealing with a complaint as it is clear under which
set of codes the complaint should be heard under.
9.3 What
training should be provided and when?
Clearly training on the new Code of Conduct is
essential and a programme will be developed and shared with all members of the
Committee. The suggestion is that training is provided before any Councils
adopt the code. For the Isle of Wight Council this will be during June (for the
Council to adopt the Code in July). For the Parish and Town Councils this will
be provided at three venues (Freshwater, Sandown/Shanklin and Newport) during July.
9.4 Should
the Town and Village Management Committees be covered by the new code of
Conduct?
These have been established by the Isle of Wight
Council as “shadow” Town or Parish Councils and members of these are expected (and
have signed up as such) to follow the existing Code of Conduct. It is suggested
that this arrangement continues.
For the Isle of Wight
Council only
9.5 Register
of Gifts and Hospitality – the Isle of Wight Council has had a local code for
some time that requires all gifts and hospitality (other then very low value
materials like pencils and calendars) to
be registered regardless of whether they have been accepted or not. The new
model Code only requires the registration of accepted Gifts and Hospitality
over £25 and requires members have a personal interest (for 3 years from date
of the gift/hospitality) if a matter before the Council affects the giver of
the gift or hospitality.
It is recommended that the Isle of Wight Council’s
local code be continued but that when the Gifts and Hospitality over £25 have
been accepted this becomes a “registerable” interest under the local code.
For the Parish and Town Councils only
9.6 Should
they be recommended to adopt the paragraph 12(2) of the Code of Conduct. This
would allow members with prejudicial interests to talk on the matter IF members
of the public would have a right to speak on that matter in the normal course
of events.
The Standards Board recommends that they do adopt this
paragraph as it will mean that members will have the same rights of address as
members of the public (where these rights exist).
10. RISK MANAGEMENT
10.1 This
represents a very low risk to the Council as the Council has previously adopted
the original Code of Conduct and all Members are expected to comply with its
requirements.
However any risks are reputational and the adoption by
the Councils, before the October deadline, will address this issue as will the
training for all members.
11. PROCESS OF ADOPTION
11.1 All authorities
have until 1 October 2007 to adopt the Code of Conduct. If they fail to do so
then the mandatory provisions of the Code apply until such time as they adopt
the Code.
11.2 Adoption
is by a simple resolution of the Council and Parish and Town Councils will be provided
with the appropriate model wording.
11.3 Once
adopted all Councils have to place an advertisement in the local paper that
they have adopted the code and where in the authorities’ area this code can be
inspected. It is suggested that to reduce the costs Parish and Town Councils be
given the option of giving this notice via a composite one that will be
produced by the Parish and Community Development Team
at County Hall. Notice also has to be
given to the Standards Board for England.
11.4 Finally
it is worth noting that members will NOT be required to sign a new declaration
of acceptance of the Code of Conduct – as the current ones are sufficient in
that they refer to the “Code of Conduct” of the Council.
12. RECOMMENDATIONS
(a)
That the Isle of Wight Council be recommended to adopt
the new model Code of Conduct with the ten General Principles of Public Life.
(b)
That the Town and Parish Councils and Town and Village
Management Committees be recommended to adopt the new model Code of Conduct,
including paragraph 12 (2) with the ten General Principles of Public Life.
(c)
That training be provided before the Councils (and
Town and Village Management committees) are expected to adopt the code and
that it be made clear that the Standards Committee expects all elected
members to attend these sessions.
(d)
That all Parish and Town (and Town and Village
Management Committee) Clerks are expected to attend a training session
(e)
That Parish and Town Councils be offered the option
of joining the combined notice of adoption of the Code of Conduct.
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13. BACKGROUND
PAPERS
There were no documents material to the preparation of
this report which are required to be listed
14.
APPENDICES
Appendix
1 – Code of Conduct
Appendix
2 Ten General principles of Public Life
Contact Point : Alison Lowton ( 823203 e-mail
: [email protected]
ALISON LOWTON
Interim Director of Legal and Democratic Services
