Code of conduct: Issues of interest. Richard Harwood

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1 Code of conduct: Issues of interest Richard Harwood 29 April 2008

2 Code of conduct: Issues of interest Introduction 1. This paper discusses some of the more problematic aspects of the model Code of Conduct for local authority members. 1 The Model Code of Conduct is contained in the Schedule to the Local Authorities (Model Code of Conduct) Order The present code was published, in something of a rush, in April Many of the complications with the Code relate to changes made after consultation on a draft order in early Ministers have said that consultation will take place on a revised code in the light of the Local Government and Public Involvement in Health Act The Model Code of Conduct is secondary legislation. Its meaning is a matter of law and so ultimately for the courts. Acts not in an official capacity the Livingstone Case 4. Paragraphs 2(2)-(4) of the Code provide: (2) Subject to sub-paragraphs (3) and (4), this Code does not have effect in relation to your conduct other than where it is in your official capacity. (3) In addition to having effect in relation to conduct in your official capacity, paragraphs 3(2)(c), 5 and 6(a) also have effect, at any other time, where that conduct constitutes a criminal offence for which you have been convicted. (4) Conduct to which this Code applies (whether that is conduct in your official capacity or conduct mentioned in sub-paragraph (3)) includes a criminal offence for which you are convicted (including an offence you committed before the date you took office, but for which you are convicted after that date). 5. The paragraphs which may apply to actions other than in an official capacity say: 3(2) You must not (c) intimidate or attempt to intimidate any person who is or is likely to be (i) a complainant, (ii) a witness, or (iii) involved in the administration of any investigation or proceedings, in relation to an allegation that a member (including yourself) has failed to comply with his or her authority s code of conduct; 5. You must not conduct yourself in a manner which could reasonably be regarded as bringing your office or authority into disrepute. 1 It draws, with gratitude, on notes by Alex Ruck Keene and Gordon Nardell, and discussions with Richard Clayton QC, of 39 Essex Street Chambers. 2

3 6. You (a) must not use or attempt to use your position as a member improperly to confer on or secure for yourself or any other person, an advantage or disadvantage; The Ken Livingstone case 6. The High Court considered the scope of matters that could be covered by the Code of Conduct in October 2006 in Livingstone v Adjudication Panel for England. 2 The Mayor of London, Ken Livingstone, had been referred to the Adjudication Panel by an Ethical Standards Officer ( ESO ) of the Standards Board for England over comments he made to an Evening Standard journalist. The ESO alleged that Mr Livingstone had been in breach of the equivalent provision to paragraph 5 ( A member must not in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrespect ). 3 The Panel found that whilst Mr Livingstone was not acting in an official capacity, he had breached the provision. 7. In the High Court Mr Livingstone argued that the effect of s.52 of the Act was to prevent a Code of Conduct from covering activities which were carried out in a member's private life. 4 Mr Justice Collins found that whilst the Code of Conduct could extend to a member s acts outside an official capacity, those acts had to be in performing his functions and any other circumstance was to be construed narrowly to that effect. He explained one effect of this interpretation: 5 It seems to me that unlawful conduct is not necessarily covered. Thus a councillor who shoplifts or is guilty of drunken driving will not if my construction is followed be caught by the Code if the offending had nothing to do with his position as a councillor. The 2007 Order 8. Paragraph 2(3) of the Model Code in the 2007 Order applies three provisions of the code at any other time where the conduct is criminal. Paragraphs 3(2)(c) and 6(a) do not pose a problem as intimidating witnesses in code of conduct investigations and using a position as a member to improperly secure an advantage, would be in performing the member s functions. 6 However the disrepute provision applies to criminal conduct at any time, whether or not it is in the performance of the member s functions. The explicit statements in paragraphs 2(3) and 2(4), with the removal of the any other circumstance provision in paragraph 5, mean that the provision cannot be construed as confirmed to acts in the performance of the member s functions. The Explanatory Memorandum for 2 [2006] EWHC 2533 (Admin). 3 Set out at judgment, para Judgment, para Judgment, para See Livingstone, para 28. 3

4 the Order confirms that the new Model Code is intended to cover criminal conduct in a member s private capacity. 7 The Government s acceptance of the Livingstone decision 9. No appeal was brought in the Livingstone case and the Government did not attempt to intervene in the proceedings. It has accepted that Mr Justice Collins decision represents the law and that even criminal conduct in a private capacity cannot be covered by the Code. The Government s Consultation on Amendments to the Model Code of Conduct for Local Authority Members which led directly to the 2007 Order said of Livingstone: 8 The Court judgement gave examples of cases where it did not think that the code was able to apply. These included where a member shoplifts or is guilty of drunken driving. Such action will not now be caught by the code if the offending conduct had nothing specifically to do with the member s position as a councillor. This is a narrower interpretation than we have previously applied to the code. Up to now we have assumed it was possible to take a wider view of what private conduct could be relevant, i.e. including actions not necessarily to do with the member s position as a councillor but which may affect the member s reputation and electors confidence in him or her. In response to this case, we have decided to amend sections 49 to 52 of the Local Government Act 2000 so that behaviour in a private capacity might be included within the remit of a code of conduct. This amendment is included in the Local Government and Public Involvement in Health Bill currently before Parliament. If the amendments are enacted, Ministers are currently minded to provide that only private behaviour for which the member has been convicted by a court should be proscribed by the code of conduct, as referred to in paragraph 4(2), and not behaviour falling short of a criminal offence. (emphasis added) 10. The paper consulted on proposed text to cover such behaviour, asking whether this was supported subject to powers being available to us The Government proposed to amend the Local Government Act 2000 by the Local Government and Public Involvement in Health Bill to reverse the effect of Livingstone. The Bill as it was introduced to the House of Commons proposed to extend the code-making powers to a member s conduct at all times and to delete the restriction of the undertaking to matters in performing his functions. 12. In the Public Bill Committee debates the Minister, Mr Woolas MP, accepted that Livingstone prevented criminal convictions for acts outside a member s official duties from being subject to the Code: 10 7 Paragraph 7.5, fourth bullet point. 8 Consultation, page 9. 9 Page 10, question st March 2007 col.420. The clause was then numbered

5 The amendments will enable us to achieve the policy objective of encompassing within the code of conduct instances where members acting outside their official duties receive a criminal conviction. Such a conviction would lead to action being taken against the member by the authority s standards committee or, if appropriate, the Standards Board. We are trying to say that the code of conduct should not cover a councillor s private life, with the caveat that if a criminal conviction was involved, that should be taken on board by the standards committee. The problem lies in the court judgment on the Livingstone case the Mayor of London case. In layperson s terms, the judge said that the law currently does not allow the code of conduct as it stands to be considered. That was, in essence, the conclusion of the judgment. In order to allow the remit of the code of conduct to be along the lines that I have prescribed not to include the private life of the councillor and to comply with the judge s remarks, we have to amend the law 13. Later in the debate the Minister criticised a Liberal Democrat amendment which would to retain the current position with regard to the code of conduct following last year s High Court judgment in the case of the London Mayor, which is that conduct in a member s private capacity is excluded from the code unless it is closely connected with the member s official role The proposals in the Bill were criticised by Parliament s Joint Committee on Human Rights. 12 The committee said: 13 We see no reason why the Bill should not expressly state on its face the exact extent to which the code shall apply to private conduct by members, for example by providing that the only private conduct to which the code applies is conduct which has resulted in a criminal conviction. There is no reason, legal or otherwise, why such a limitation should only be contained in the code. On the contrary, in our view, there are very good reasons why such a limitation should be on the face of the Bill, to make it less likely in practice that the power will be exercised incompatibly with Articles 8 and 10. We agree with the view of the Committee on Standards in Public Life that only private conduct resulting in a criminal conviction which is relevant to the member s official duties should be within the scope of the code of conduct. 15. The Explanatory Memorandum published with the 2007 Order did not refer to the Livingstone case nor did it explain how the Order can be made without amending the Local Government Act The SBE guidance on the Code says: Transitional Note: Until such time as there is Parliamentary approval for amendments to section 52 of the Local Government Act 2000 which reinstates the situation prior to Collins J s decision in Livingstone v Adjudication Panel for England 2006, the Code of Conduct does not apply to conduct outside of 11 Col Legislative Scrutiny: Fourth Progress Report, 11 th Report of Session. 13 Para 1.19,

6 the performance of your functions as a member. Only if you have engaged in an activity which has a link with the functions of your office will any conduct in your private capacity be covered by the Code of Conduct. If the legislative amendments are passed, the Code of Conduct will also apply to criminal activity which has led to a conviction. 16. Parliament s Joint Committee on Statutory Instruments did manage to get an explanation from the government which it summarised as: 3.9 The Department s answer is, in essence, that, unless and until the relevant provisions of the Bill come into force, paragraph 2(3) and (4) must be given the narrow construction which Mr Justice Collins said should be given to the phrase or any other circumstance. Once the amendments have come into force, that narrow construction will no longer need to be applied The Committee notes that two different approaches have been taken by courts on vires of relatively peripheral statutory instrument provisions that appear arguably to go beyond the enabling power. Any such provision is given a narrow enough meaning to be within the scope of the power where doing so is possible, as in the case cited. Where giving a meaning of that nature is impossible, but the ultra vires element is conceptually severable, that element is treated as if it were not part of the instrument (Dunkley v Evans ([1981] 1WLR 1522). It is only where the ultra vires element is not conceptually severable that the statutory instrument falls. In the case of the provisions in question here, whether the first or second approach were taken on a challenge, the Committee agrees that they would be left with some substance, uncertain though it may be. The provisions in question would remain provisions in force As a consequence, the Committee also agrees that, if clause 141(7) of Local Government and Public Involvement in Health Bill comes to be enacted as it now stands, its effect will be that, from the commencement of clause 141, the words in question will thenceforth clearly mean what they say The peculiarity of the approach adopted by the Department, however, is that, rather than forming a view on what is required by the code now in precise terms, it has expressed it deliberately in terms that will only clearly mean what they say on the assumption that a retrospective provision currently in a Bill will come to be enacted an assumption that cannot properly be regarded as a certainty and was not contemplated by the enabling power as it now stands. The Committee accordingly reports the inclusion of paragraph 2(3) and (4) in the Model Code of Conduct in the Schedule to this Order as an unexpected use of the powers under which the Order is made. 17. This explanation does seek to maintain the lawfulness of the order, but is hardly a desirable way to proceed. The JCSI report does not grapple with how an offence committed before a person was elected as a councillor could be in performing his functions as a councillor and so fall within the Livingstone interpretation of the law. 6

7 The final position in the Act 18. The government amendment is now in section 183 of the Local Government and Public Involvement in Health 2007 Act. In the face of criticism from the House of Lords the government retreated from its original position. The Principles and Code of Conduct Orders will have to say for each principle or provision of the code: 14 (a) that it applies to a person only when acting in an official capacity; or (b) that it applies to a person only when not acting in an official capacity. 19. The word only is awkward. The present Code intended that certain provisions would apply both when a member was acting in an official capacity and when he was not. It is not apparent what provisions of a code should only apply to acts outside an official capacity, particularly as the widest provision, on disrepute, most commonly applies to acts within an official capacity. 20. A principle or code provision may only apply to acts outside an official capacity if it prohibits particular conduct (or conduct of a particular description) where that conduct would constitute a criminal offence. 15 An order may define official capacity and criminal offence. The Code order will need to define criminal offence to cover acts non-official capacity actions as the local Code may only apply to such acts where that conduct would constitute a criminal offence within the meaning of the code In the Report Stage debate on 15 th October 2007, the minister said: i. that only serious criminal offences, to be defined in secondary legislation, should be subject to the Code; 17 ii. that there should only be a breach of the Code if the action has subsequently resulted in a criminal conviction; 18 iii. new model codes of conduct will need to be issued Serious criminal offences were said to include assault, harassment, fraud and child pornography. Examples of offences that might be excluded from the code would be fixed penalty offences such as minor motoring offences, parking offences and dropping litter. The Minister insisted that it was not possible to put into the statute that a criminal conviction had to be obtained first, even though the present Code of Conduct does that. 23. The Act does not alter Collins J s interpretation of acts which may bring a member s office or authority into disrepute. So it does not follow that conviction for a criminal offence capable of being covered by the Code, is actually a breach of the code. 14 See amended sections 49 and 50, Local Government Act Sections 49(2B), 50(2B), Local Government Act Section 51(4B). 17 Lords Hansard, col col col

8 24. The new provisions anticipate that criminal offence will be defined for the purposes of the Code of Conduct and that has not yet been done. Whilst the provisions are in force for order making purposes, they have not been implemented more generally. Consequently the law remains as described in the Livingstone judgment and so the Code presently only covers conduct taking place in an official capacity. 25. Section 183(7) provides that from the commencement of the new provisions an existing Principles or Code of Conduct order shall have effect as if the amendments made by this section had always had effect. The intention, as the JCSI report identified, was to retrospectively validate the wider meaning of the 2007 Code. However, this provision is a hang-over from the original draft of the Bill. The House of Lords changes require criminal offences to be defined in the Code and they are not defined in the 2007 Code. For this reason amendments to the Code are required before the changes can be made. Personal Interests 26. A member will have a personal interest in an item of business if: (a) The Council business is likely to affect any of the things listed in para. 8(1)(a) includes `public service interests viz. membership of body to which appointed by the authority, and body exercising functions of a public nature. The interests also include employment, significant local shareholdings, contracts with the authority, land in the authority s area and the interests of those who gave gifts or hospitality worth at least 25. (b) Para. 8(1)(b) decision on that business reasonably regarded as affecting your well-being or financial position, or that of a relevant person, to a greater extent than the majority of inhabitants of the affected ward. 27. Much of the list of personal interests is familiar, but there are a few interesting issues which arise. 28. Paragraph 8(1)(a)(ii) concerns bodies with public, charitable or political purposes of which the councillor is a member or is in a position of general control or management. Often it will be clear that something is a body and that it has a definable membership (RSPB, Conservative Party, CND). But particularly in these days of short-lived single issue campaigns and the internet, would the following be bodies: a Save our Post Offices campaign which is the non-party front for a political party; a website contributed to by several blogging councillors; a facebook group? 29. To what extent does membership go beyond a constitutionally defined membership for those who have paid a subscription? Many people will donate to 8

9 an organisation without wishing to become a member, or will indicate support in another way, by signing petitions or attending meetings or rallies. 30. It may be drafting quirk without significance, but the requirement identify election funders is in respect of payments to the member, 20 when in practice council candidates from organised parties do not receive money themselves. Their agent, who is usually a local party employee will spend the party s money on their behalf. 31. A personal interest also covers the interests of any person from whom the member has received a gift or hospitality with an estimated value of at least 25. Implicitly the gifts or hospitality must be related to their position as a councillor and does not concern gifts received in a personal, professional or business capacity or being bought dinner on a date. 32. In the second limb of the test well-being is vague. SBE Guidance suggests a condition of contentedness and happiness anything that could affect your quality of life. 21 It must relate to an individual s personal position, rather than their views on public matters. A councillor s husband may get very annoyed that Tesco a proposing a new store in the town, but it will not affect that individual s well-being. 33. The well-being or financial position of a relevant person para. 8(2). Relevant persons include family is not itself defined. The 2001 Code had used the expression relatives, going from grandparents to grandchildren and including aunts, uncles, nephews and nieces but not cousins. A relevant person will also be one the member has a close association with. The SBE Guidance advises: 22 A person with whom you have a close association is someone that you are in either regular or irregular contact with over a period of time who is more than an acquaintance. It is someone a reasonable member of the public might think you would be prepared to favour or disadvantage when discussing a matter that affects them. It may be a friend, a colleague, a business associate or someone whom you know through general social contacts. 34. The affect on that person must be greater than on the majority of the inhabitants of ward or division affected by the decision. This is particularly useful on controlled parking decisions and very major planning matters. If the council gas no wards or division, the comparison is with whole area of authority (such as a parish or town council). An exception arises for the Mayor of London and the Greater London Authority members where the relevant area is the Assembly constituency. 35. Where a declaration is required at a meeting, a member must declare the nature as well as the existence of an interest. A sentence or two will usually suffice and it is good practice for this to be recorded in writing by the member. 20 Paragraph 8(1)(a)(vi). 21 May 2007, page May 2007, page 20. 9

10 Prejudicial Interests 36. There must be a personal interest before there can be a prejudicial interest: 37. The general test is: 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 prejudice your judgement of the public interest (Para. 10(1)). 38. But a member does not have a prejudicial interest in the situations listed in para. 10(2) (this is a relaxation of the old rules) where the business: (a) does not affect your financial position or the financial position of a person or body described in paragraph 8 (see above); (b) does not relate to the determining of any approval, consent, licence, permission or registration in relation to you or any person or body described in paragraph 8 ;or 1. relates to statutory sick pay, members allowances etc., ceremonial honours, setting council tax/precept. 39. The (c) categories reflect previous exclusions and are designed to avoid situations where all councillors would be prejudiced by the fact they are councillors, or exclusions would risk unbalancing the decision. The (a) and (b) categories are considerably more difficult. The Government consulted on a proposal to change prejudicial interests by having less onerous requirements for public service interests. After criticism of the draft the government have now considerably widened the range of matters which are not prejudicial interests. 40. These changes mean that a member does not have a prejudicial interest if: a. he approves a planning brief for a major site which he lives next to as a council tenant (so his financial position is not affected), even if the terms of the brief may affect or protect his home from noise, shadowing or TV interference; b. he votes to take enforcement action against an unlawful development next to his mother s rented flat; c. he votes to appoint the amenity society which he chairs to a council working group. 41. It is unclear whether in relation to means a prejudicial interest arises only where that person receives an approval or whether it includes other approvals which that person might be interested in. If the former, then a councillor can determine a licensing application for a pub next to his home. The SBE guidance gives examples of applications by bodies in which the member has an interest: considering a planning or licensing application made by you or a body on your 10

11 register of interests. 23 However it then gives as an example of a significant interest you would have a prejudicial interest in a planning application proposal if a member of your family lives next to the proposed site without addressing whether there is a financial interest or this is a relation to case. The SBE Case Review 2007 says that relation to also applies to a person who is affected by the decision. Whilst this would not apply to a campaign group, the SBE view would appear to cover neighbours. 42. There are four possible categories of relation to : a. where the interested person has made the application; b. where the interested person is part of the scheme albeit not an application such as a landowner or proposed occupier (e.g., registered social landlord). This would seem to be a relation to situation, but a financial benefit would probably arise in any event; c. where the interested person might be directly or indirectly affected by the decision, for example, a neighbour of a proposed development; d. where the interested person has made representations on the application but is not directly affected by the outcome, for example, an amenity society. Speaking with prejudicial interests 43. A member with a prejudicial interest must leave the room and not seek improperly to influence decision. (Para. 12(1)(a), (c)), unless para 12(2) is applied. Paragraph 12(2) is not mandatory for parish councils, but it is referred to in paragraph 12(1) which is mandatory By paragraph 12(2), a member can attend (but must leave once their representations are concluded) for the purpose of making representations, answering questions or giving evidence, so long as members of the public can do the same. This is a further relaxation of the old rules and a reversal of part of the effect of R v North Yorkshire County Council ex p Richardson. The intention is a prejudicial interest should put a member in no worse position that if they were a member of the public, attending to the interests of their own or the affected section of the community s interests. However a councillor with a prejudicial interest is not able to attend simply to listen to the item, he is only allowed in for the purpose of making representations. 45. This throws up a few issues. 46. The paragraph 12(2) exception only applies to councillors attending for the same purpose as the public can speak. This means that a councillor with a prejudicial interest can only speak in a public slot, rather than as, say, a ward councillor. On its face the Code does prevent Executive members from being questioned as councillors on decisions they have taken. However, section 21(13) of the Local Government Act 2000 which allows overview and scrutiny committees to require 23 Page

12 members of the executive to attend to answer questions must prevail. 47. A further matter is whether a member may attend to instruct or assist others in making representations. For example, a member could be one of a group of residents who have instructed an advocate to make representations to the licensing committee. He would be attending to make representations, but not be speaking himself. Richard Harwood Barrister 39 Essex Street Chambers Telephone: Richard.harwood@39essex.com April