A strengthening of the member conduct regime in England?

Simon Goacher sets out the key findings we can take from the government's published consultation.

In December the government published a consultation on strengthening the regime governing member conduct in England.

The conduct of elected and co-opted members of local authorities in England is governed by the Localism Act 2011. This requires relevant authorities to promote and maintain high standards of conduct. In doing this, authorities must adopt a code of conduct and have in place arrangements for dealing with any allegations that members have breached the code. Any allegations against parish councillors are dealt with by the relevant district council.

The regime is much more localised than the equivalent which operates in Wales, and the system in England which operated previously. There is also no power for a member to be suspended or disqualified if they breach the code. This has been the subject of some criticism, and in January 2019 the Committee for Standards in Public Life published its review of the member conduct regime in England which made a number of recommendations, including strengthening the sanctions with a power to suspend a member for up to six months. The previous government did not take any steps to implement these recommendations.

The new government has indicated that it wishes to strengthen the sanctions, and in December 2024 issued a consultation on changes to the regime.

These included the reintroduction of a national mandatory code, the introduction of a power to suspend councillors for up to six months if they fail to comply with the code, an appeals process, the reintroduction of a requirement to have a standards committee, and the requirement to publish the outcome of complaints.

The proposals have been cautiously welcomed, as the lack of any real teeth to the regime has been consistently cited by monitoring officers and practitioners in the field as a problem with the current system.

There are some interesting questions in the consultation which may raise a few eyebrows. There is a question about whether hearings should be before the standards committee or full council. Managing a hearing process before full council and dealing with potential conflicts of interest would be challenging.

The prospect of disqualification for repeat offences needs to be carefully considered and managed. The suggestion of the introduction of a national appeals body to consider appeals is to a degree necessary as the requirement for a fair hearing will apply to the sanction of suspension. Before the Localism Act, under the previous regime an appeal lay to the First Tier Tribunal. It is not clear whether a similar process is envisaged or whether a new body similar to the Standards Board, which was abolished by the coalition government, is being considered. The CSPL had suggested that the Local Government and Social Care Ombudsman could fulfil this role but this does not appear to be being proposed, though the consultation does leave this open by asking if an existing body could fulfil the role. It is highly debatable whether any regulatory body other than a judicial institution could or should consider appeals.

The consultation also asks whether complainants should have a right of appeal. One of the criticisms of the previous regime was the volume of vexatious complaints and the system being bogged down. There is a real risk, if complainants have an unfettered right to appeal decisions not to investigate complaints or decisions on complaints, that the appeal body will be inundated with appeals.

Overall, the proposals to strengthen the regime are to be welcomed but there are some concerning questions which it is to be hoped will not be taken forward.

The deadline for responding to the consultation is 11:59pm on 26 February 2025.

Simon Goacher is a Partner at Weightmans.