Local Government Standards Regime

Robert Neill Excerpts

Wednesday 16th January 2013 Westminster Hall

[Mr Philip Hollobone (in the Chair)]

As a local borough councillor myself, I am very interested to know what Mr Bob Neill is going to say about the operation of the new local government standards regime.

[Robert Neill (Bromley and Chislehurst) (Con)]

Thank you, Mr Hollobone. I am delighted to see you in the Chair, not least because you were a borough councillor in my constituency before you moved to your current constituency. Most of us have had direct personal experience of local government over a number of years.

I sought a debate on this subject because the coalition agreement set out clearly the Government’s intention to remove what, by common consent, I think, had become regarded as a top-heavy and excessive standards regime. It was debated at some length when the Localism Act 2011 went through Parliament—a process in which I had a certain personal involvement, if I might put it that way.

The Government’s intention was crystal clear: although transparency in councillors’ dealings and behaviour is rightly important, and should always remain so, and although it is important that every council has in place a code on members’ conduct that is cognisant of the Nolan principles of public life, there should be flexibility within those parameters, with a view to councillors no longer being subject to the degree of inhibition that, intentionally or unintentionally, had grown up under the old regime through a mixture of the operation of the then standards regime and what many regarded as a gold-plating of the interpretation of the common law on matters such as predetermination. That was the objective; Parliament’s intention in removing those inhibitions from councillors was crystal clear. It was in the interests of greater democratic involvement at local level and greater transparency. In fact, by and large the objective was uncontroversial on both sides of the House. We had disagreements over some details and means, but the objective was broadly supported.

My remarks today are not partisan. I want to put before the House certain concerns, which have come to my attention over the past few months, about how in some places the regime operates in a way that does not always reflect the intentions the House expressed when the Act and subsequent secondary legislation went through. Those concerns arise from local authorities of all political complexions; this is not a political issue.

[Mr Peter Lilley (Hitchin and Harpenden) (Con)]

I congratulate my hon. Friend on securing the debate on an issue that deserves far more attention. He is bringing his great expertise to bear, so may I ask for his view on one of the many instances of heavy-handed interpretation of the rules that have arisen in my constituency? Councillors have been advised that if they attend a meeting held to protest about plans for redevelopment of the city centre in Hitchin, they may be deemed to have fettered their discretion, even if they announce when attending that meeting that they will not allow it to do so. Could he confirm that is absolutely not the intention of the legislation?

[Robert Neill]

I am grateful to my right hon. Friend for raising that case, which I have also come across. When I was the Minister responsible for signing off the regulations and the code, it was absolutely not the Government’s intention that the code should be construed in that way. With respect to whoever gave the advice, it is frankly nonsense to interpret the legislation in that manner.

My right hon. Friend highlights one of my principal concerns, of which the House needs to be aware: the varying quality of interpretation of the code from one authority to another. He gives an example of a situation that most people with common sense would regard as nonsense. Rather than supporting local democracy, such cases undermine it. I am grateful to him for raising it, and I hope that my hon. Friend the Minister can restate the Government’s clear view that they do not intend the code to lead to that form of inhibition.

My right hon. Friend’s case parallels an instance I came across involving a councillor who was coming up for election. The big issue in their ward was whether a golf course in that ward might be subject to development. All the candidates were effectively advised that should they be elected, if they had turned up to a residents’ meeting to consider that concern, they would be regarded as having predetermined any application that subsequently came before the council. It was the green lungs of that community—it was the big issue. People wanted to know where those standing for election from all parties stood on it, but the monitoring officer was giving advice inhibiting them from doing so. That was never the intention of a proper standards regime.

Exactly the same advice seems to have been given in my right hon. Friend’s example, and it is worth dwelling on it, because I see that the councillor went back to say, robustly, “I’ve got my own legal advice, and it comes nowhere near that construction.” We seem to be getting into a very dangerous state of affairs, where monitoring officers, perhaps through an abundance of caution—I put that charitably—come up with an interpretation of the law that clearly inhibits councillors from expressing a view. My right hon. Friend is right that the councillor was making it clear that they would go along, perhaps as an observer, and say, “I have come with an open mind.” The monitoring officer came back and said, “Even if going as an observer, you will be taken to have predetermined the issue,” because the title of the meeting started “Hitchin against” or “Save Hitchin from”. Such stretching of the rules and the interpretation of the common law concept of bias brings the regime into disrepute.

I hope that this debate gives an opportunity for the Government to restate what has always been our contention: proportionate standards do not require that degree of micro-management. It does no service to councillors of any political persuasion in any community. That is one of a number of examples we have found in this field, and I was going to take the opportunity to deal with some of them today. Equally, there have been examples of real success under the new regime, and it is right and proper to recognise that.

Wiltshire, a big unitary authority, has adopted a regime that is accurately described as strong on transparency but light-touch on participation and voting. That is a sensible approach; provided council members have stated what their position is, there should be no fall back to the old idea that they must automatically be excluded from consideration if they have declared any potential interest on the record. Wiltshire has made the regime work well. Other authorities seem to have adopted a much more prescriptive and old-fashioned approach, which gets in the way of council members representing their constituents. We all know that this is a long-running problem, and it was clearly the intention of this House and Parliament as a whole to rectify it. Perhaps the difficulty is that, in some cases, the mindset of some, but not all, monitoring officers has not changed to reflect the localism agenda.

For localism to succeed, as we all wish it to, it requires two things; first, political will on the part of elected members to carry out the mandate their voters gave them; and secondly, intelligent and informed co-operation from their officers—not obstructing council members from carrying out that political will, but assisting them to do so. Sadly, we have seen the growth of a risk-averse culture in monitoring standards and the way in which councils transact important areas of business. That risk-averseness needs to be addressed.

It is sometimes difficult for an individual councillor—perhaps newly elected to a small authority or a back bencher in a large authority—to stand up, as my right hon. Friend’s constituent did, and say that they have access to advice that frankly brings the monitoring officer’s view into question. It is therefore all the more important that we make it clear that that sort of gold-plating is needless and unhelpful. There have been many such examples around the country, and I am happy for hon. Members to raise others during this debate, because I know that they are important and pressing.

The problem relates not only to an overly restrictive approach to the interaction of the code and predetermination, but to the approach taken towards councillors who do their public duty. That duty may sometimes involve saying controversial things about the operation of the authority itself, but it is wrong—as it has been in some of the cases that I have seen—if, in effect, that is used to gag a member from speaking out. I will happily give a few examples.

The first example was raised by Lord Tyler in the other place during the passage of the Localism Act. A member of Cotswold district council who had acted as a whistleblower found himself the subject of a complaint. Ultimately, the complaint was dismissed, but it was a trying and difficult process for that member. Members often find themselves alone, and as Lord Tyler put it—describing exactly the vice that we sought to avoid—councils have

“catered for—even encouraged—persecution of whistleblowers”.

That is strong language to use. I do not know whether the word he used is appropriate, but that is sometimes the effect. Of that case, Lord Tyler said that

“one assiduous councillor, doing precisely what electors expect of him, has been proved right in identifying potentially illegal activity”.—[Official Report, House of Lords, 14 September 2011; Vol. 730, c. 830.]

Instead of the whistleblower being encouraged or supported to bring information into the open, it seems that the Standards Board regime was used to bring a complaint against him, albeit the allegation was ultimately ruled to be unfounded. That is exactly the type of behaviour that we intended to end, but unfortunately that has not happened in all councils. I have already given the example of Wiltshire council adopting a proportionate and sensible approach, but there are examples of members having to fight very hard against the mindset of officers who want to retain, in effect, the whole of the old system, with the exception of the Standards Board for England regime, which has obviously gone.

A cabinet member of a district council in the home counties told me that they had been put under considerable pressure by officers to adopt a code that, in effect, simply transplanted the old regime and put it in place without any changes. It happens that that cabinet member is married to a senior partner in one of the leading local government law firms in this county, so they were able to go back to the monitoring officer and say robustly, “What you are advising me goes well beyond what is necessary. We are not obliged to rewrite all the old rules on predetermination and bring that into our code,” but how many members would have been in a position to challenge the officer’s advice, just as the constituent of my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) did? That is a serious issue.

There is a serious question about the way in which monitoring officers sometimes operate. That job seems to have grown. Many monitoring officers—those in my local authority, for example—are excellent; they do a thoroughly good and professional job and it would be wrong to say otherwise. In other instances, however, the role is either amalgamated with other functions or, frankly, does not always seem to be held by somebody with any considerable degree of legal expertise, which is not satisfactory.

I have some examples from councils across the country. One councillor said that they suspect many monitoring officers are still attempting to control elected members—these are the member’s words, not mine—and to frighten them into leaving the chamber on the very flimsy grounds of having interests to declare; and whenever important issues come up for debate, the councillor has found that a paper entitled “Monitoring officer guidance” is included with the agenda, and this tries to direct the members with veiled threats. Whether it is intended in that way, I do not know, but, inadvertently, heavy-handed guidance can certainly have the effect of inhibiting members who are confronted with it. It seems bizarre that every item of any significance should require monitoring officer guidance. That takes the regime well beyond the monitoring officer’s real and proper role, which is to ensure that the council acts lawfully and intra vires, and appropriately to police whatever the code is.

It is worth looking at another county. South Norfolk district council adopted the very light-touch code that was issued, when I was still a Minister, by the Department for Communities and Local Government. That has worked well and entirely satisfactorily. Norfolk county council has adopted an extremely complex code, which is, in effect, the old-fashioned one by another name. We now have the bizarre situation of the leader of the county council being subject to a complaint from the district council leader about what is essentially a dispute between county and district about the site of an incinerator. I do not make any comments on the merits of that dispute one way or the other, but the idea that a legitimate political debate should find itself up in front of the Standards Board is to use the old thinking and procedures, which it was the Government intention to remove.

Other councils have seen even more striking and worrying examples, and I particularly want to refer to the London borough of Tower Hamlets. That authority has a directly elected mayor. He is an independent, but it is well known that he has close connections with the Respect party. The mayor is supported by sufficient independent members to ensure that he has the blocking third to get the necessary budgets and mayoral policies through. However, throughout his time, there has been a history of vexatious complaints against members of the opposition Conservative and Labour parties—Labour is actually the largest party—made by members of the mayor’s cabinet. Councillors appointed by the mayor to his cabinet have made complaints particularly against the leaders of the Labour and Conservative groups. Sometimes the complaints have not come to fruition; in other circumstances, they have. That causes real concern.

The monitoring officer of Tower Hamlets, Isabella Freeman, is also the assistant chief executive for legal services, and the monitoring officer is also the person who advises the mayor. There is now a situation in which the monitoring officer, who advises the mayor and polices the regime, regularly investigates complaints by a member of the mayor’s cabinet. On the other hand, complaints against members of the group who support the mayor have not been taken forward for investigation, which inevitably raises concerns as to who monitors the monitoring officers in such cases. In that case, the monitoring officer is herself in dispute with her employer—the authority—and there is apparently an industrial tribunal case ongoing, but the monitoring officer still sits in and carries out her functions, even though they involve councillors who may be witnesses to those proceedings.

Tower Hamlets has reached the extraordinary stage of members from several parties passing a motion to have certain disciplinary steps taken in relation to the monitoring officer. We might have thought that the monitoring officer would have withdrawn from the meeting at that point; instead, she insisted on remaining, and noted what was said by every member, which hardly gives the impression of an unbiased, open and transparent approach. Freedom of information requests in relation to only two of the complaints have revealed that some £6,000 of public money was spent on investigating a complaint against the leader of the Conservative group and that some £12,000 was spent in relation to a complaint alleged against the leader of the Labour group. No such complaints have been taken forward in the same way against the group that supports the mayor.

That may be a particularly egregious example. At the same time, however, members raised complaints with the monitoring officer about a highly partisan publication, East End Life, which is the subject of great controversy, and the monitoring officer responded that everything that the mayor had put in that publication was in order. The same monitoring officer gave advice that the mayor was not obliged to answer certain questions from members in the council in relation to the exercise of his functions because that might infringe his human rights. That, frankly, brings the standards regime, which we all want properly and proportionately exercised, into serious disrepute. That is not in anyone’s interests.

The matter that has arisen in relation to Tower Hamlets seems, on the face of it, to be frankly scandalous. It involves one important case that comes back to the whistleblower point. An opposition councillor raised an issue concerning an applicant for a senior post in the council, and it was demonstrated that that applicant’s CV was inaccurate in an important and material respect. The applicant had been obliged to resign from a previous employment, and that was not placed on their CV. That achieved a degree of national and regional publicity, not surprisingly.

The result was a complaint by the same member of the mayor’s cabinet, who was a frequent source of the complaints, against that member. That was investigated and the member set out in considerable detail their side of the matter. The hearing took place within weeks of the abolition of the Standards Board regime, and the member was not present. The upshot—I have to be careful what I say—was that within days of the regime being swept away, rightly, by the will of Parliament, the standards committee, which, I understand, consisted predominantly of members who supported the mayor, referred the matter to the first-tier tribunal, where it remains. The purported view of that seems to be that in relation to a complaint that was some two and a half to three years old—never mind its the merits—there was a desire, frankly, to invoke suspension of a leading critic of the mayor. That was why it was being taken to the first-tier tribunal, which refused to entertain it. Now, I gather, there may be attempts to appeal that.

That sort of abuse of the system brings local government into disrepute. It is right to have that on the public record, because that is not how the system is intended to be used. I hope that the Minister will confirm that the Government’s intention has been that, as of 1 July, the ability to suspend or disqualify a member should not be exercised in the standards regime, but that instead such a power is exercisable when the criminal offence of failing to disclose a pecuniary interest, which came into force on the same day, is committed. The case that I mentioned had nothing to do with a pecuniary interest of any kind; a councillor was doing what many people would regard as their duty by pointing out something that might have been seriously misleading in relation to an important and sensitive public appointment.

The fact that that member should have hanging over their head the prospect of defending themselves in legal proceedings before a first-tier tribunal—brought, of course, at public expense—when it is known, and was known when the decision was taken, that the power to suspend was going to be removed, is an abuse of the system. I hope that we can make it clear and restate that it was never Parliament’s intention that the transitional provisions that were brought into place when the Standards Board regime was abolished should be used in that way. That, too, is an important example of where we need to look more closely at how things work.

I want to refer to one or two other examples that illustrate the issues that need to be addressed, and again, there should be political consensus between us on this. My right hon. Friend the Member for Hitchin and Harpenden referred to the case that occurred with his constituent councillor and what was said in relation to the campaign group, and that is not the only case I have come across. I am aware of a council that resolved that councillors should not meet developers, full stop. It seems to me that that kind of blanket interpretation of the rules goes well beyond anything that Parliament intended. We all know that development applications have to be treated with great care and sensitivity, and it is important to ensure that proper process and probity are observed in all such instances, but the idea of such a blanket prohibition seems to me to be fundamentally wrong.

[Richard Drax (South Dorset) (Con)]

I apologise for being late, Mr Hollobone. My hon. Friend is making an excellent speech and raising some important issues, which occur right across the country. As for councillors’ involvement with local government, when I ask my constituents whether they have spoken to their local councillor, they say that they have but that the councillor cannot say anything—I suspect that many of my colleagues hear the same thing—either because the rules have been misunderstood, or because, in some cases, an anxious or over-zealous monitoring officer has put the fear of God into councillors. Clearly, there is a big misunderstanding in such areas, which should be cleaned up as soon as possible.

[Robert Neill]

My hon. Friend is absolutely right, and in a number of instances right across the piece, we have come across precisely that fear of God being put into members, many of whom are voluntary public servants, sometimes in quite small district or parish councils, where they do not necessarily have access to independent advice. A forceful expression of opinion, however questionable, by the monitoring officer can often understandably intimidate, whatever the intention. We need to deal with exactly that issue.

One of the things that we specifically did in the Localism Act 2011—again, it was not, of itself, a matter of controversy in the House—was to clarify the law in relation to predetermination. There is no doubt that the common-law rule had been seriously gold-plated in the advice that monitoring officers were giving, to the extent that, essentially, people were being told, “You really cannot say anything about this planning application, otherwise you will be taken to have predetermined it.” That is wrong, and it is not what the case law ever was, but that is how it was interpreted in all too many cases.

I am grateful to my hon. Friend for highlighting that, because the fact that advice to that effect continues to be given demonstrates, despite the will of Parliament and despite the guidance clearly set out by my hon. Friend the Minister’s Department, that that message is not always being taken on board by some monitoring officers. That is in danger of undermining the potentially good work that is being done by the legislation.

My right hon. Friend the Member for Hitchin and Harpenden quoted from the example of his councillor constituent, and I will read out the detail of the advice, because it also touches on the point made by my hon. Friend the Member for South Dorset (Richard Drax). It is worth reading it out to give you the whole flavour. It was headed “Members’ information note”, and it provides

“Guidance on pre-determination regarding public meeting ‘to oppose an extension to the Simons contract to redevelop the centre of Hitchin’”.

That is all well and good, and it is an understandable matter of public concern. Under the heading “Summary of advice,” the document states:

“Attendance at a public meeting that has a clear purpose of opposing a particular course of action or proposal, and which includes at item 3 on the agenda a “vote”, is very likely to be regarded as evidence of pre-determination of the matter. Either attending the meeting as an ‘observer or listener’ and/or declaring at the start of the meeting that one is approaching the matter with an ‘open-mind’, could still lead to perceptions and allegations of bias and pre-determination, due to the current stated purpose the meeting.”

The member went back on that advice and, as I say, rightly went along to the meeting.

Frankly, that advice was nonsense. If that sort of advice is being given, the sooner that it stops being given the better, because it is not legally sound and does not accurately reflect section 25 of the Act, which says:

“A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because…the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or…might take, in relation to a matter”.

Simply turning up as an observer is certainly doing something, but it could hardly be regarded on any sensible interpretation of the statute as being an act that would tend to predetermine a councillor in relation to a decision.

Basically, bad legal advice is being given to members, and it undermines the proper purpose of the standards, which is to ensure probity, decency and honesty in the conduct of our affairs. When there is nonsense advice of that kind—if I may put it that strongly—it makes it harder to enforce the system in the important cases where a proper red line has to be drawn in relation to members’ conduct. I am afraid that the example that I have just given is one of a number that seem to exist.

Another issue that has concerned me considerably is the attitude of officers towards members at times. Again, I do not want to say that that attitude exists in all cases. In my experience, the majority of officers work sympathetically and constructively with their members. However, a district councillor in Surrey has written in strong terms. Again, it relates to a planning application and let us remember that one of the reasons that we got rid of the previous standards regime was that a vast number of the complaints—something like 60%-plus—turned out to be essentially vexatious. I think that only about 28% of the complaints ever got taken forward properly and many of those related to things such as disputes on the parish council or the fact that someone was aggrieved that a planning application went a particular way; they were related to things that really had no foundation.

In the case in Surrey, there was a controversial planning application and clearly the member had expressed a view; I do not know which way they went, or did not go, and perhaps it does not matter for the purposes of this debate. Nevertheless, it caused the aggrieved applicant to make a complaint to the Standards Board. Essentially, what happened was that an investigator was appointed by the monitoring officer; the investigator questioned the councillor for 10 and a half hours in two meetings, as well as e-mailing the councillor a large number of questions; and on the second occasion, there were another 56 questions, almost as though everything that was being said by the complainant was being taken as read, without any attempt to apply any discretion about the merits of the case and whether it actually warranted that level of investigation.

The matter then dragged on for a number of months, the councillor rightly involved her MP and her conclusion was:

“The sword of Damocles is hanging above us and if someone says something the public don’t like, the sword will fall.”

It has never been the intention of Parliament that that should be the case or that any councillor should feel that way, regardless of their party and their views. The councillor in Surrey says that she has been a member for 16 years, having been returned about four times by her electorate, and for a member of that experience to feel like that indicates that something has gone wrong with the way in which the regime is being applied. The sad comment from the councillor is that:

“The Council were extremely bad with me throughout the entire investigation. They did not help or support. In fact the very opposite. The then CE—”

that is, the then chief executive—

“could not have been less kind or caring and made things worse.”

In fairness, she also says that the current chief executive adopted a different approach, and it is right to say that as well. However, the fact that an experienced councillor has to write in those terms indicates that there is a problem, and reinforces the point made by my hon. Friend the Member for South Dorset that public servants are feeling inhibited from doing the right thing by their communities.

[Richard Drax]

My hon. Friend is being very generous in giving way, and again I must say that his speech is quite excellent. I want to raise another issue with him that I have certainly found in my constituency—again, I suspect that colleagues have also found it in their own constituencies—regarding planning applications.

Planning really is the most contentious area. In my experience both as an MP and as a former journalist—I was a journalist for some 17 years, sitting in on these planning committees—many of the councillors had not even been to the sites that they were considering, because they claimed that they were not allowed to go to them. Yes, there is a drawing that shows what is intended, but that does not show what is around, the buildings nearby, the proximity of perhaps an ancient monument—I do not know, whatever is around the site—so councillors get a completely false perspective and potentially often make the wrong decisions. Is there anything that we can do to stop that happening and perhaps introduce more common sense?

[Robert Neill]

What we can do to help my hon. Friend in that regard is to promulgate the good practice and what is perfectly permissible. I know from my time as a member of a planning committee that it was perfectly standard practice in many authorities, and it should be perfectly open anywhere, for site visits to take place. It is probably best that members of the committee and the officers go together. That is what is usually and sensibly done, so that they all go in a group, and because the officer is present, there can be no suggestion of improper contact between the members of the committee and—let us say—the applicant or an objector. That can be sensibly done; many authorities do it; and those authorities that do not do it, and think that it cannot be done, should be told that it can and should be done.

Frankly, most of us would hope that with the new approach to empowering members, officers would look for ways to say, “Yes, we will enable a site visit to take place if members wish it, with the proper safeguards in place to make sure that there can be no accusation of impropriety.” It happens in many places, but the fact that it is not generally known that it happens is perhaps a real concern, as my hon. Friend suggests. Perhaps it is something that the Government need to think about doing, perhaps working with the Local Government Association and the local government community in general to ensure that that sensible good practice is rolled out.

It is interesting that my hon. Friend raises the issue of planning, because it comes back to the point about members being told not to meet developers. One of the few things on which I agreed with the former Mayor of London, Ken Livingstone—there was not much on which we agreed, as hon. Members will know—was that he had a very sensible and proportionate approach to dealing with planning applications that came before him. By their very nature, they were very often strategic applications, potentially involving large sums of money and important social impacts.

When he was Mayor, Ken Livingstone met applicants under those circumstances, he did so with an officer present and everything was properly minuted. Although I have accused the former Mayor of various things over the years, nobody would ever have questioned the total integrity with which that process took place, and indeed it continues under his successor, Mayor Johnson. It was a sensible and proportionate thing to do; Mayor Livingstone was right to do it and Mayor Johnson has been right to continue doing it. However, if they had listened to the sort of advice that my hon. Friend the Member for South Dorset referred to earlier—the advice given to his colleagues, or that we have seen in some of the documents that I have referred to—they would not have done it and those meetings would not have taken place.

Actually, very often the involvement of members in planning applications can be constructive, provided that it is done with total probity. There are plenty of examples of how the engagement of the ward members has enabled a scheme to be refined or adjusted in such a way that what was potentially unpalatable to a community can be made palatable, and actually the application can be improved by the involvement of the local members. Consequently, such involvement is not only something that should not be obstructed but something that ought to be positively encouraged as a matter of good practice. So I am grateful to my hon. Friend for raising that point about planning.

The other issue that seems to have arisen recently, and that I hope my hon. Friend the Minister will be able to deal with when he responds to the debate, relates to pecuniary interests. I was rather surprised to see advice that is being given to a number of councillors, that they should be regarded as having pecuniary interests in effect because they are council tax payers. Again, that advice is all set out in legal documents, which I could happily quote, but if that advice is not nonsense then I do not know what is. Once more, I must say with a sense of frustration that that sort of advice or idea is exactly what I spent two and a bit years of my life as a Minister trying to get rid of, and I feel that perhaps I have failed and that perhaps it is my fault, because I did not make that message clear enough. I hope that that is not the case, but what I have described today is happening in a number of local authorities. In addition, I regret to say that when I looked at some of the e-mails that I have received on this subject, I see that such practice seems to be based on a view taken collectively by a number of monitoring officers.

Like most professions, monitoring officers are not without their collective bodies. They are worthy people; I met some of them on a number of occasions when I was a Minister. However, that does not mean that they always get these ideas right, and the idea that simply because someone pays council tax they should be regarded as having a pecuniary interest is another idea that I hope the Minister will make clear today was never the intention of Parliament. Hopefully, this debate will give us an opportunity to send out a message—to officers that such advice is wrong, and to members that they should not feel constrained by such advice. The idea that someone would have to get a dispensation for every member of a council in effect, so that they could vote on the council tax in their area, is a nonsensical interpretation.

[John Glen (Salisbury) (Con)]

Reluctantly, I have to point out the situation in Wiltshire. A local Labour councillor contacted me saying they had received an e-mail from the ethical governance officer. It said that the current legislation referred to councillors having

“a disclosable pecuniary interest in any matter to be considered”.

The reference to “any matter” was essentially used to justify people not voting on anything, which is utterly absurd. When I responded to the councillor, I said that common sense was required, and I do not think that my advice and input were welcome. However, it is ludicrous that the legislation has been interpreted in such an unhelpful way.

[Robert Neill]

My hon. Friend is absolutely right. It is a sad irony that Wiltshire, having got the structure right and achieved a sensible, light-touch, proportionate structure, seems none the less to have been giving out advice on a specific point that is clearly wide of the mark. That issue needs to be raised with monitoring officers generally.

[Richard Drax]

The mobile phone is a marvellous bit of kit: as my hon. Friend was talking, the leader of the Conservative group on Purbeck district council raised the same point with me. I asked him whether there were any points he wanted to raise, and he said that,

“under new rules we have to declare an interest to set the council tax.”

Funnily enough, that is the very point that my hon. Friend has just raised, and the comment I have read out reinforces it.

[Robert Neill]

I am immensely grateful for my hon. Friend’s presence, because he has allowed us to have a debate in real time, which is extremely useful. His point highlights the issue and takes well into double figures the number of instances I have come across of such advice being given out. As everybody in the room knows, that advice is clearly wrong.

That raises questions about the quality of advice monitoring officers sometimes give. We all know it is important to have a monitoring officer—something that goes back to the Local Government and Housing Act 1989. However, some of the mission creep that has come into the monitoring officer’s role raises questions. I hope the Minister will be able to comment on what the Government see as the proportionate and appropriate use of monitoring officers to ensure probity without creating an industry via the back door. One complaint about the previous standards regime was that whatever its intentions, which were good, it created an industry that was expensive for the public purse and that had the effect—probably unintentionally, but this was the reality—of being something of an inhibitor of open public debate. The whole objective subsequently has been to put an end to that.

All too often, there seems to have been pressure on members simply to recast the old regime but give it a localist badge. An extremely restrictive interpretation of the legislation, which goes well beyond case law or statute, persists all too frequently. My hon. Friend the Member for South Dorset has given clear examples in relation to planning matters and the key issue of council tax. District monitoring officers also sometimes give such advice to parish councils in their area. Whatever the intention, if that advice lands on a parish councillor, who might have just a part-time clerk or something of that kind, it will be extremely intimidatory. I have had a number of e-mails from members across the country saying, “I’m wondering whether it’s worth standing for my parish council again.”

In a number of instances, the provisions on spouses’ or civil partners’ pecuniary interests have been misinterpreted. Initially, a flurry of advice seemed to suggest that council members would have to give the name and details of their spouse or civil partner. The Department sent out a letter—I may have written it myself—to all council leaders making it clear that that was not the case, and that the interests of the spouse or civil partner are regarded as the member’s interests. Therefore, if a member’s wife or partner owned a relevant property that should be declared, it was declared, but under the member’s name; it was not necessary to give details about their wife or civil partner. The fact that misleading advice was given, and still seems to be given, indicates that the message might not have been fully taken on board. Under certain circumstances, such advice could deter worthwhile and valuable candidates from coming forward for election. That is disproportionate, and it is important that we get a sense of proportion back into these matters.

That brings me back to the quality of the monitoring officer and what their proper role should be. There is flexibility at the local level, and that should of course be the case. However, one councillor who has raised serious concerns with me states at the end of his e-mail that he was one of the first monitoring officers to be appointed under the 1989 Act—he had obviously retired and, having been a local government officer, decided he had not had enough, so he became a member instead, which is absolutely admirable. He said that, when he was a monitoring officer, he had done about one and a half hours’ work a week as part of his other responsibilities. However, he said that the role in his district council had mushroomed and was becoming a full-time job, which was never the intention in a proportionate scheme. Obviously, the work load and the demands in a big authority will be greater, but all too often it seems to me and to many members who have contacted me that there has been an exponential growth in the monitoring officer role, which sometimes leads to advice that is not accurate or focused and to an attitude that can be intrusive. That is important, and I hope the Minister can give us some idea of the Government’s thinking on making sure that there is clarity on the issue, and that councils do not feel the need to over-engineer a solution.

I also hope the Minister will be able to comment, in so far as one can where matters are potentially sub judice, about the extremely concerning situation in Tower Hamlets, where there does not seem to be the independence and transparency that one would wish for in the operation and governance of the council and in the monitoring officer’s role within that. There is a risk of members being worn down by serial complaints against them that are not filtered out at an early stage.

Let me give just two more Tower Hamlets examples to conclude. One involves a complaint—I am glad to say that nothing came of it in the end, but it still took time and investigation—from Councillor Alibor Choudhury, the cabinet member for resources, who is a regular complainant, against the leader of the Conservative group, Councillor Golds. An interim chief executive had been appointed. In the council meeting, speeches were made welcoming that officer to their post. During the debate, Councillor Golds referred to the fact that he was looking forward to appointing a proper chief executive in due course. That was the subject of a complaint, on the basis that it showed disrespect to the acting chief executive, as well as bias. The acting chief executive actually wrote saying, “It does no such thing. I didn’t feel in the least bit offended by that.” It was pretty clear that Councillor Golds was referring to a substantive appointment being made in due course, which everybody would wish to see. The fact that the issue was dragged through the standards regime in Tower Hamlets suggests that not just old mindsets but questionable mindsets were being applied.

A further complaint was then raised—interestingly, three complaints were all made within about a month of each other, and the same cabinet member was a party in each case. In this case, the allegation related to the matter that is now working its way through the first-tier tribunal. A third complaint was then made, this time about a member’s suggestion—it was made by the same leader of the Conservative group, as it happens—that a ward be renamed. It is a sensitive issue locally whether the ward is called Spitalfields and Banglatown or Spitalfields, but the fact that it should trigger a complaint of racism is well beyond anything the provisions were intended to do. The complaint was ultimately taken no further, but a great deal of public money went into dealing with it. Any proportionate system of monitoring would surely have weeded it out at an early stage. As I say, the same council spent £18,000 investigating the two opposition party leaders. At the same time, the monitoring officer declined to investigate complaints against members of the party supporting the mayor.

All those cases raise a specific matter in relation to Tower Hamlets. However, they also raise a specific, important point, which I hope the Minister will be able to clarify, about the use, or perhaps abuse, of the transitional provisions, which were intended essentially to enable members who might be involved in an outstanding complaint to clear their names by going to the first-tier tribunal. I do not know how many such instances, if any, we have on record of attempts to use the transitional provision in that rather extraordinary way, but it is clearly not what Parliament intended.

I hope that I have done enough to give a flavour of the areas of concern that I want to set before the House. I do that not in any spirit of criticism of the Government, because they have been doing the right thing and there was, broadly, a measure of consensus in the House about wanting to ensure that we have proper standards. Making sure that our public affairs at a local level are conducted honestly and transparently, having good quality candidates from all backgrounds coming forward for election, and enabling voters to believe that their members can do and say things that make a difference are critical to the health of local democracy. All of that was clearly the Government’s intention when we carried out the reforms and it was clearly Parliament’s intention when the new arrangements were put in place.

I hope that we will be able to use this debate to reinforce and clarify the message that the new regime is about empowering members, not inhibiting them, and that advice to the contrary is incorrect and should no longer be given out. The Department should use its good offices, working with the Local Government Association and the local government world generally, to ensure that members are not subject to the kind of unintended and inaccurate pressure that undermines our shared objectives.

--- Later in debate ---

[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.