UK: New Model Code Of Conduct Order

So it finally arrived. After a consultation running from 22 January to 9 March 2007, it eventually slipped quietly in beneath the radar of many in local government just before the Easter break on 4 April 2007 and will take effect on 3 May 2007. The 'it' in question is of course the Local Authorities (Model Code of Conduct Order) 2007, which operates under the code name S.I. 2007 No. 1159.

The Order was billed at birth by its proud parent, Phil Woolas, Minister of State at the Department for Communities, as a 'simpler, clearer and more proportionate code of conduct for local councillors'. The Order comes following much constructive discussion and debate within local government and some controversy without. For example in September 2006 Conservative MPs Owen Paterson and Gerald Howarth issued a paper entitled 'A Question of Standards - Prescott's Town Hall Madness' which charged the conduct regime (amongst other things) with drastically curtailing councillors' right to free speech and their ability to represent the views of their electors and creating a climate of fear in our town halls and council chambers. Some of these concerns have been recognised by the Government. For instance Phil Woolas indicated that the new Code 'removes the current barriers to councillors speaking up for their constituents or for the public bodies on which they have been appointed to serve'.

References to paragraphs will be to those in the Schedule to the 2007 Code unless otherwise indicated. Whilst as mentioned the Code comes into force on 3 May 2007, the various 2001 Order(s) will continue to apply in relation to the investigation of any written allegation under Part 3 of the Local Government Act 2000 where the allegation relates to conduct which took place before the revised code is adopted, revised or otherwise takes effect in the authority.

It will be recalled that Collins J in Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin) raised issues surrounding the proper scope of the 2001 Code and in particular its application to conduct outside a member's official capacity. Paragraph 2(1) now indicates that a member must comply with the Code whenever he or she is conducting the business of the authority in question or acts, claims to act or gives the impression of acting as a representative of the authority.

The scope of the Code is restricted to official capacity (paragraph 2(2)) except in relation to specified Code provisions constituting criminal conduct for which the member has been convicted. The provisions specified are in paragraphs: 3(2)(c) (member not to intimidate complainants, witnesses or those involved in the administration of any investigation or proceedings); 5 (member not to conduct himself/herself in a manner which could reasonably be regarded as bringing his or her office or authority into disrepute) and 6(a) (member not to use etc the position as member improperly to confer or secure an advantage or disadvantage). The Code therefore applies not only to conduct in the member's official capacity but also in relation to any relevant criminal offence for which the member has been convicted including any offence committed before the date the member took office but for which the member was convicted after that date (paragraph 2(4)).

Particularly relevant to election time (and the sensitive 'purdah', or pre-election period), the Local Authority Code of Publicity made under the Local Government Act 1986 has now been brought under the wing of the Code of Conduct (paragraph 6(c)). For this provides that members must now have regard to the Publicity Code.

Whilst the prejudicial interests regime has been amended, the definition is substantially the same i.e. a personal interest (as defined in paragraph 8) where the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgment of the public interest. In particular (per paragraph 10(2)) there will now be no prejudicial interest (amongst other things) where the business in question does not affect the financial position of or relate to the determining of any approval, consent, licence, permission or registration in relation to the member or a person or body described in paragraph 8.

Where a member does have a prejudicial interest he or she may attend a meeting (including an overview and scrutiny meeting) but only for the purpose of making representations, answering questions of giving evidence relating to the business, and provided that the public are also allowed to attend the meeting for the same purpose, under a statutory right or otherwise.

The separate concept of a 'public service interest' which appeared in the consultation draft code no longer appears and is apparently addressed instead by paragraph 9(2).

Now the Code has been issued it will be interesting to see how it plays in practice. However, a notable omission (also in the consultation draft) is any reference to common law bias. For clearly if bias or apparent bias is established at law then the decision will be vitiated. It is, nevertheless, understood that this issue is to be addressed in guidance to be issued by the Standards Board.

The Board is adopting a more strategic regulatory approach with the majority of investigations being handled locally. Monitoring officers and standards committees will therefore increasingly be at the sharp end as they grapple with the difficulties of squaring a reasonable and proportionate approach with the demands of the legislation as well as the slings and arrows of sometimes outrageous political machinations.

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