Local Government Standards Regime

Brandon Lewis Excerpts

Wednesday 16th January 2013 Westminster Hall

[The Parliamentary Under-Secretary of State for Communities and Local Government (Brandon Lewis)]

I am grateful to my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) for providing this opportunity to have what is, in the light of what is going on, a hugely important debate. The debate is also timely because the Localism Act 2011 received Royal Assent more than a year ago—I enjoyed several months on the Public Bill Committee with my hon. Friend, as Minister, taking the legislation through—and just over six months ago, on 1 July last year, the new standards regime came fully on stream.

I pay tribute to my hon. Friend for the central part he played in doing what I think most people in local government—perhaps not monitoring officers—will for ever be grateful for: abolishing the old Standards Board regime, thereby fulfilling an important coalition agreement commitment, and overseeing the establishment of a new regime, which should be opening the way for councils to put in place their own new localist standards arrangements. I will be clear with the House on this: I am a fan of old-fashioned democracy and I believe there is a strong case to be made, as it was in the debates on the 2011 Act, that the most effective sanction for wrong behaviour is found in transparency, particularly through to the ballot box. We need to bear that in mind when we consider what the Standards Board regime, which we are moving away from, was at risk of becoming.

Every council should aim to have a simple process that ensures high standards of conduct from all members without imposing bureaucratic burdens or providing a platform for vexatious and politically motivated complaints that not only waste taxpayers’ money but, as the hon. Member for Warrington North (Helen Jones) mentioned, damage the very fabric of both local democracy and democracy generally. That was the case with the old regime. As a councillor for a decade or so, I saw that regime develop. Since coming to the House and taking my current office, I have found it worrying that, despite the change in regime, monitoring officers are expanding and developing as an industry, and changing the regime seems only to have brought that industry further in-house, rather than getting rid of it.

The essence of the new regime is that, within a simple broad framework, the design of a council’s standards arrangements is put into its members’ hands. I stress that there is no detailed central prescription about conduct. Given what is happening, there is a temptation for us to start getting involved centrally, but I am wary of doing that because it would be a move away from local accountability. It is for individual councils to decide how best to promote and maintain high standards of conduct.

I will have a look the case and come back to the hon. Lady, but my instinctive response to the councillor who refused to sign a code of conduct is that if the council has adopted the code of conduct, it is, de facto, the council’s code of conduct. I am not sure why it is necessary for every member to sign the code of conduct for it to take force. It is the council’s code of conduct.

There is no central prescription for the process a council might follow. Beyond certain clear, basic, national rules—for example, that certain pecuniary interests must be disclosed, which I will return to, because I have seen far too many farcical cases of the type raised today—it is for each council to decide its own arrangements, to decide its code of conduct, to decide how to deal with allegations that that code has been breached and to decide how personal interests should be handled. That approach puts members in the driving seat and recognises the commitment of members across local government to serving their communities, to acting consistently in the interests of those they represent and to ensuring local taxpayers’ money is well spent.

The new regime recognises the central importance and value of members’ roles, which must be a priority, and their knowing what is right for their community and authority. Rightly, under the regime members can take ownership of all their council’s standards arrangements and be satisfied that the arrangements are proportionate and appropriate to the circumstances of their authority.

The first six months of the new arrangements have seen councils and their members take a wide range of approaches in responding to the opportunities provided by our new standards regime. The Government have taken a number of steps to help members make the most of those opportunities. To assist councils, in April 2012 my Department circulated an illustrative text of a simple and straightforward code of conduct, as envisaged by the new regime. In June, my hon. Friend the Member for Bromley and Chislehurst wrote to local authorities about simple arrangements for handling misconduct allegations. We followed that in August with a plain English guide to openness and transparency on personal interests.

All those measures graphically illustrate how simple and straightforward, yet wholly effective, standards arrangements can be adopted by councils under our new regime. It is therefore disappointing and, to an extent, worrying to hear that some local authorities have developed both a code and model arrangements for handling misconduct complaints that appear to be essentially a continuation at local level of the old Standards Board regime, and in some cases go further than the old regime. I have heard about too many cases of that in the past few months.

We have heard examples today, and I will respond to a few specific points. My right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) described a situation that simply should not be happening. The Localism Act makes it clear that a member can go to meetings, and even campaign on an issue, and still take part in the formal decision-taking process, provided they approach that decision with an open mind, as I am sure members do. There is no basis in law for a monitoring officer to give the type of advice about which we have heard.

[Richard Drax]

My hon. Friend is making an excellent speech. He says that a councillor may campaign, as long as he or she maintains a neutral state of mind, but if someone is campaigning, they are clearly campaigning either for or against something. For clarification, is the Minister saying that councillors can campaign for something? If councillors state that they are for or against something at a council meeting, they might be accused of not having a clear mind. Does he follow my argument? I may have misunderstood him.

[Brandon Lewis]

Bear in mind that that is a decision for the individual member, as it is when we declare an interest in the House. Councillors must decide whether, at the point of a decision, they have an open mind, having heard all the evidence. If someone has been campaigning heavily against something, they may come to a meeting, hear all the evidence both for and against and then make a judgment about whether they have an open mind on the evidence. That is a matter for them. The key point is that the advice being given to councillors that they cannot do that is wrong. They can do it and, actually, that is how we represent our residents. That was one of the problems with the old regime.

On the point raised by my hon. Friend the Member for Bromley and Chislehurst, since 1 July 2012, when the new regime came into force, councils have had no power to suspend a member—absolutely none. A member convicted by a court for failing to disclose a disclosable pecuniary interest may be disqualified for up to five years by the court in its sentence. In addition, the law remains that any person sentenced to three months or more in prison is disqualified from holding the office of councillor for five years.

[Robert Neill]

I am grateful for the Minister’s clarification. Were there to be any growth in litigation based on an erroneous interpretation of the transitional provisions, would he consider what steps the Department and the Government might take to assist the courts in ensuring that a tribunal has access to the correct interpretation before coming to a decision?

[Brandon Lewis]

I will address the transitional arrangements in a moment, but, yes, we do have to consider that.

The advice in the Wiltshire case makes little sense. The advice refers to a pecuniary interest in any matter, but it focuses on the word “any,” which is completely the wrong end of the stick, to use a colloquial phrase. The advice fails to define a disclosable pecuniary interest, which is the key point. The simple fact is that one cannot identify a disclosable pecuniary interest that relates to the setting of council tax. A beneficial interest in land is probably the nearest to that, but that interest is clearly not materially affected by the setting of council tax.

I have learned something today, and I am hugely impressed: I have never before heard of an “ethical governance officer,” which is a fantastic new title. I am sure the title will be cropping up across the country, no doubt with people asking for pay rises. One of the things of which I have seen far too much, particularly in parish councils, is organisations advising that, in setting precepts, all members have to declare a pecuniary interest, which implies that every councillor has such an interest, be they district councillors, county councillors or unitary councillors. Indeed, it could be argued that that goes all the way to us when we set the Budget. That is farcical. That is not what the guidance sets out. We must make it clear to parish councillors that that is bad advice. It is wrong. That was not the intention.

Another example I have heard is how councils feel the need, under the transitional arrangements, to continue to investigate a complaint under the old regime, whatever its merits. That is absolutely not what the transitional arrangements require. Briefly, if a council considers a complaint unworthy of investigation and the resources that that would entail, it can bin the complaint. I stress again that that is a decision for the council—the members. Neither the monitoring officer nor any other officer has the power to make a decision and force or tell councillors to do something. The decision is in the hands of the democratically elected councillors.

Why is all this happening? Why is there an attraction to continue a Standards Board-type regime—a regime that was widely loathed in local government and ill served citizens, taxpayers and councillors? As I hope I have stressed clearly, our new regime puts members firmly in the driving seat when it comes to deciding what a council’s standards arrangements should be. They are for local councils to decide. In that role, it is right that members look to their officers for advice, as that is what officers are for, but I have to say that much of the advice being given to members is far from satisfactory. There are some very good monitoring officers out there, but far too much poor advice is being given, leading members to feel that they are being bullied by officers.

What I have seen often shows that, for whatever reason, officers have simply failed to grasp what the reform is about. It is about having arrangements that maintain high standards while avoiding bureaucratic burdens and doing away with all the petty, vexatious complaints that bedevilled the operation of the old regime. Whether because of excessive caution, bureaucrats’ love of bureaucracy for its own sake, or a misplaced belief that they and not members should be in the driving seat on standards, officers often advise that something more or less akin to the old Standards Board regime should be continued.

One of the most worrying examples is the Public Law Partnership that provides legal advice to a number of councils, including Essex county council and, I believe, Brentwood borough council, where I was once a member. The partnership has prepared a model code and model arrangements for handling misconduct complaints that seem essentially to be a form of the old Standards Board regime. I see no need for a local authority to adopt a code of conduct based on such a model, or to put in place complaint-handling arrangements based upon the Standards Board regime. I see no need for a heavy, bureaucratic, gold-plated approach that has no place in the new localist standards arrangements, which should be driven by and for members.

I send a clear message to council leaders and members that where they receive such advice, they should simply tell their officers to think again. They must challenge their officers to get it right. They should tell the officers that what they are saying is wholly out of step with the new regime and its aims as approved by Parliament, and instruct them to come forward with something different—something that is proportionate and that meets the needs of members under the new regime.

I know that members are trying to do the right thing and want to make the right decisions, and that the officers giving advice sound well informed and very much in control. It is easy for members to believe, “We must do this.” I hope that today I have sent a clear message to councillors that the power is in their hands; they should exercise it and challenge their officers to come up with a light-touch scheme and approach. I know that leaders and members have the strength and capacity to do that. They should do it now, if they have not done so already. They should get on with it, using the comments made by all Members in this debate, including me, to challenge their officers. My message to monitoring officers and others who give that advice is to be professional and proportionate and to cut out the gold-plating. Let us see some common sense.

I have heard of law firms offering advice—at a price rather than pro bono, I imagine—on the standards regime and how to operate it. It is, of course, for councils to decide what advice they need. Again, I suggest that members should consider carefully whether they need outside, paid legal advice when they have their own officers. I find it hard to envisage circumstances in which seeking such advice can be genuinely justified. The new standards regime is about empowering councillors to deliver high standards of conduct; it is not about creating a new legal industry, whatever attractions that might have for some. My message to council members is at the very least to consider matters very carefully before deciding that it is necessary to involve a legal firm in the conduct of their council’s standards arrangements.

Monitoring officers are there to provide professional advice, not to decide what is to happen or judge whether a member has a disclosable pecuniary interest. I hope that I have made that clear. It is the responsibility of the member concerned to make that judgment. Members need to have confidence in the expertise, professionalism and independence of their officers and to trust that they do not have an agenda or aim that might put their advice into a particular context. Again, I encourage members to challenge their officers appropriately and robustly.

The public expect high standards of conduct from local authority members, and the vast majority of local authority members conduct themselves in an entirely appropriate manner. Across our country, they work fantastically hard for their communities. There is simply no point in a local authority needlessly imposing a burden of bureaucracy on itself. Councils now have the opportunity to free themselves of the Standards Board regime and make a fresh start free of complicated codes of conduct and resource-intensive arrangements for complaint handling. This opportunity is too important to miss, and I hope that they will take advantage of it, guided particularly by the comments made in this debate. I congratulate my hon. Friend the Member for Bromley and Chislehurst again on securing the debate, which is welcome and, I hope, helpful for local authorities and councillors across this country.

[Mr Philip Hollobone (in the Chair)]

I thank all Members who have taken part in this most interesting debate, and I congratulate Mr Neill on securing it. I am afraid that we will have to contain our anticipation of hearing Mr Bellingham until the Minister arrives at 4 o’clock.