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The Committee received the Leader of the Council’s report giving details of a national Model Code of Conduct produced by the LGA which went out to consultation from 8 June until 17 August 2020. The Head of Legal and Democratic Services stated that the report was being presented to this Committee because it had a remit in its Terms of Reference to deal with standards matters and, also, to consider any proposed changes to the Council’s Constitution and the Code of Conduct formed part of that document. It was noted that the Committee’s views on the Model Code would be reported to Cabinet on 7 July 2020. She explained that, in addition to local authorities, individuals were also being encouraged to respond and a link to a consultation questionnaire on the LGA’s website was included within the report.
Members were informed that, before 2012, there had been a very centralised and prescriptive Code overseen by the Standards Board for England and every Council had to have a Standards Committee. If a breach was found, then sanctions could be imposed which included suspension or disqualification from office. Following a change of Government in 2011, the standards regime for local government was reviewed and the Localism Act 2011 was introduced under the Localism Agenda. Under the Act, the Council had a duty to promote and maintain high standards of conduct, but it was a much more relaxed, decentralised standards regime. The Standards Board for England was abolished, the National Code of Conduct was scrapped and there were no longer any enforceable sanctions. Each local authority could decide what they wanted in their own Code and if they had a Standards Committee.
In Suffolk, the County, District and Town and Parish Councils worked together to produce a Suffolk Code (the Code) which had worked well since 2012 and it was particularly useful to have the same Code for all Councillors, irrespective of which level of local government they worked in.
It was reported that the Committee on Standards in Public Life had reviewed the ethical standards in local government in 2018 and in January 2019 had produced a report for the Government which contained 26 recommendations. The first of these recommendations was that the LGA produce a national, Model Code of Conduct. Although the Government had not yet formally responded to the report due to Brexit and Covid-19, the LGA had drawn up a Model Code and were now consulting on it.
The Head of Legal and Democratic Services stated that, within her report, she had highlighted the differences between the Suffolk Code and the Model Code as follows:
(a) The Model Code marked a return to a national code which all Councils would be bound by, and this would give consistency and certainty in terms of standards of behaviour for all councillors.
(b) The Model Code would give clarity on when it applied, for example when councillors were representing the Council at meetings, or on Outside Bodies, or identifying as a Councillor when seeing a constituent, but the Code would not apply if the act or behaviour was carried out in their private capacity. The Head of Legal and Democratic Services explained that the current situation led to judgments having to be made especially when a complaint was received as she had to decide if the councillor was acting in that capacity, or privately, when an incident happened. She added that this was particularly difficult when posts were made on social media. If there was a link between the social media account, and Council business, she could conclude that the posts were made by the councillor, acting in that capacity, rather than as a private individual.
The Model Code was clear that if the person was acting or giving the impression that they were acting as a councillor and if what had been posted had a potential impact on the reputation of the Council, then, the Model Code applied so it was more certain and helpful. She commented that, given remote working, remote meetings, and the increased use of electronic communications such as social media, the LGA was interested to know if having this clarification would be useful.
(c) The Code required Councillors not to be disrespectful to others whereas the Model Code focussed on the idea of showing “civility” or politeness and courtesy which could be more subjective and dependent on the circumstances. It was suggested that criticising ideas and opinions was acceptable but making personal or abusive comment would be showing a lack of civility. The Head of Legal and Democratic Services stated that it would be interesting to hear Members’ views on whether they felt it would be easier to define “civility”.
(d) The threshold in both the Model Code and the Code for declaring the receipt of gifts and hospitality remained at £25, however, the Model Code specified that Councillors should not accept “significant” gifts or hospitality which they were offered from those looking to do business with the Council, or those submitting applications for licences, consents or permissions which meant that the Model Code was clearer.
(e) The Model Code proposed a change to the Localism Act, in that Members would need to declare their Disclosable Pecuniary Interests (DPIs) and those of “family members and associates” rather than just their own DPIs and those of their spouse/partner. This change would mark a return to the wording in the pre-2012, national code and was clearer and more certain in application for the public, Members, and Officers who might have to give advice.
The Committee was informed that, under the Localism Act, the only sanctions available were censuring the Councillor found to be in breach, or requesting that they undertake training, mediation or issue an apology for their behaviour, whereas the Model Code also proposed including a sanction of suspending the Councillor for up to six months. This would require a change in legislation as the Localism Act would need to be amended.
Members were reminded that the LGA was keen to receive comments from individuals as well as Councils in order to better inform Government on how they might want to respond to the Committee on Standards in Public Life report.
The Head of Legal and Democratic Services was thanked for her detailed presentation and in response to several questions by Councillor Byatt she responded as follows:
- Suffolk Authorities had had the same Code since 2012 and the Suffolk Coastal Audit & Governance Committee had reviewed it a few years ago and their only issue of concern had been the inability to impose sanctions. She added that it was likely that all Local Authorities would be considering the Model Code through their Audit and Governance or Standards Committees and she hoped that they would respond to the LGA.
- The Model Code would apply to all forms of media including newspapers if it impacted on the reputation of the Council. She explained that, currently, with complaints about social media posts, if she could not link the social media account to Council business, she had to write to the complainant and explain that the action complained was outside of the Code, and no action could be taken. Whereas the Model Code made it clear that it applied to all social media, if it impacted on the reputation of the Council. This would give more clarity.
- It was not possible to make training compulsory through the Code, although she acknowledged that the Constitution included the provision for Members to undertake the necessary training to enable them to sit on quasi-judicial Committees such as Planning and Licensing. She added that Officers strongly encouraged new Members to attend training on the Code, as part of their induction programme and, where necessary, she had held individual sessions with Members who could not attend the scheduled sessions. She suggested that political groups would be best placed to “insist” that their Members attended the training.
- Councillors could only be disqualified at the moment if they were made bankrupt; did not attend a meeting for six consecutive months; had a prison sentence imposed or suspended of three months or more; or were convicted of a criminal offence where they failed to declare a DPI. She added that if there was a breach that came before this Committee, the person could not be disqualified or suspended which was why the LGA was proposing to include suspension as a sanction but they did not want to go as far as disqualification.
Given that “liking” Facebook posts or re-tweeting had recently proven controversial, clarification was sought on whether that would be classed as using social media. The Head of Legal and Democratic Services confirmed that potentially it could, as a re-tweet might be seen as publishing the document/post and, in doing so, that the individual agreed with it. She added that the link needed to be clear that this had been done as a Councillor as opposed to something for example on a private account with no link to Council business.
Councillor Cooper pointed out that Councillors were well known within their communities and were viewed as a “Councillor”, so any comments were always seen as coming from that perspective rather than on an individual basis. A suggestion was made that the punishment should fit the crime, therefore, stronger sanctions were required than those currently available such as an apology. The Head of Legal and Democratic Services responded that she had previously received complaints from the public that they were not happy with posts but if there was not a clear link between the account and Council business, it was not possible to take action against the complaint, nor to sanction the Councillor. She reiterated that it had to reference Council business in some way so that if the posts were on a private account, and there was no link to the Council, then, the councillor was acting in their private capacity. She clarified that it was a question of judgment for her and one of the Council’s Independent Persons but the proposals in the Model Code would help. She added that she agreed that an apology might not go far enough or be as fulsome as some might hope but the only recourse she had, if no apology was given at all, was to refer the complaint back to the Independent Person, but the matter was automatically closed if an apology was given.
Councillor Cloke stated that she supported her colleague’s comments regarding stronger sanctions and welcomed the changes, as she felt it was a big improvement on the current Code.
Councillor Smith-Lyte stated that she slightly disagreed with her colleagues as she felt that the very nature of being involved in local politics at this level meant that there would always be, within reason, some degree of controversy due to having different political party views. She added that some people would just look to criticise, and you could not please everybody all the time. She pointed out that there would be some people who, whether it was because of the party the Councillor represented or because of them as an individual, would want to pick the Councillor up on things and complain.
The Head of Legal and Democratic Services acknowledged that it had been recognised within the Code that there would always be a level of debate, disagreement and controversy and that political opinions would vary, but it should be possible to have robust discussions as part of the cut and thrust of debate. However, the threshold of when it moved from political debate to a lack of respect or civility was the difficult judgment call she had to make. She added that the threshold for disrespect was quite high and she was looking for instances where the Councillor had been personally abusive or used offensive language, but that judgment was made with one of the Council’s Independent Persons.
Members noted that the LGA would be issuing guidance on what constituted a lack of civility etc which she felt would be very useful. She also acknowledged that there had been a lot of tit-for-tat complaints pre-2012 but, under the lighter touch regime, these had decreased, so it was a case of getting a balance between a very prescribed Code and the current, lighter touch regime. The Model Code represented that middle ground, she felt.
The Chairman referred to paragraph 2.4 on page 8 of the report relating to gifts and hospitality and suggested that clear guidelines were required in order to help Councillors determine if they needed to declare them or not. In relation to paragraph (10) on page 12, relating to Register of Interests (ROI), he also suggested that stronger sanctions were required for those Councillors that either did not complete their ROI or did so incorrectly. He acknowledged the points raised by Councillor Smith-Lyte but pointed out that breaches came before this Committee, so there were some checks made, and he felt that having stronger sanctions available for those that had committed a breach was justified.
On the proposition of Councillor Cooper and seconded by Councillor Cloke, it was
RESOLVED
That, having commented on the contents as detailed above, the report be received and Cabinet made aware that, overall, this Committee felt that the Model Code was an improvement but that there should be better options for sanctions so that the Code had more teeth.
The Head of Legal and Democratic Services left the meeting at this point.