Code of Conduct – whose Conduct?

The Local Government Association is consulting on changes to the Standards regime in local councils. They have drafted a new model Members Code of Conduct. Introducing the model code at this time, the LGA say: “The onset of COVID-19 and the measures that have been introduced to curb its spread have changed the workings of local government. Remote meetings and decision-making processes have been introduced, but these have not diluted the importance of high standards of conduct of local government elected members.”

One of the issues prompting the call for a new model code is that more communication taking place remotely and online between councillors and residents, particularly through social media. The LGA believe that there may be more difficult and heated discussions as some seek to express the fear, frustration and heightened emotions they are experiencing at this time. However, abuse, threatening and intimidatory communications continue to be unacceptable.

There is a strong focus on councillors and how to communicate with the public. However, perhaps we should look at the establishment of the standard’s regime following the Poulson corruption scandal that led to two Royal Commissions and a National Code of Local Government Conduct, first issued in 1975. It should be remembered that this scandal revealed that there had been corrupt payments to several MPs, police officers, health authorities, civil servants and councillors.

Part of that scandal involved Newcastle’s T Dan Smith, the Newcastle Chronicle says: “Smith was an increasingly important part of the Poulson empire, working to advise the firm while at the same time ordering major contracts, before stepping down from the council in 1964 to act as consultant and PR man. Armed with a list of contacts, Smith worked his way around town hall offices across the country, doing what he did best and making sure major civic contracts went Poulson’s way.”

More recently, is the Doncaster scandal. In March 2002, Mr Justice Hunt told the court that the “Donnygate” scandal had betrayed the public’s trust and seen the “worst sort of corruption” – the undermining of previously honest and hard-working elected representatives.

He said: “Public life requires a standard of its own. Power corrupts and corruption in government by those elected by the public strikes at its integrity and at the root of democracy. Fortunately it is rare in this country.”

This puts regulating Councillors use of social media into perspective. In fact, there is the possibility that Councillors could be intimidated by officers using the Code of Conduct. An example of an unsuccessful use of the wider Code of Conduct was made by Lewisham’s former Chief Executive, Barry Quirk to Labour MP and Royal Borough of Kensington and Chelsea Councillor – at the time – Emma Dent-Coad. I reproduce the exchange of letters in full and leave readers to draw their own conclusions:

Cllr Emma Dent Coad MP – Kensington Town Hall

Dear Councillor Emma Dent Coad,

I note that on your Twitter site you have as a pinned tweet reference to the petition being organised by Mr xxxx This is a tweet that gives me cause for concern.

I greatly respect your right of freedom of expression as well as your duty as an elected representative to speak out for those who you represent. I would suggest however that this needs to be tempered by your duty (under, among other things, the local code between members and officers of the Council) to be respectful to all those public officials who serve the Council corporately. I have today written to Mr xxxx about his petition. I attach my response for your information and would respectfully request that you delete your pinned tweet about Mr xxxx.

My thanks in anticipation,

Kind regards

Barry

Barry Quirk

Chief Executive – RBKC

Dear Mr Quirk

Thank you for your email and I have read your concerns.

However I was elected both as local Councillor for RBKC and as Member of Parliament for Kensington to represent my communities, and that is precisely what I will continue to do. I am entitled to ask questions on behalf of residents, and this is what I have done via Twitter.

I do not work for the Council. Some officers may need to be reminded of that on occasion.

There are huge concerns about the operation of media communications at the Council, and about the recent increased funding for new officers. This is likely to be under serious scrutiny after 3 May.

Sincerely,

Cllr Emma Dent Coad MP

correspondence between Barry Quirk and Cllr Emma Dent Coad MP

The stress of an investigation by officers of a councillor under the member code of conduct should not be under estimated. Former Lewisham Councillor Mike Harris has written about his experience under ‘investigation for a tweet’ eloquently in The Guardian. He says: “The intervening weeks weren’t much fun. I wondered whether the board would publicly reprimand me, leading to my possible suspension from my political party, or whether I’d be banned altogether from the council chamber for six months – unable to vote on issues directly affecting my constituents. In the end, the claim against me was thrown out.”

The LGA acknowledge that Article 10 of the European Convention on Human Rights – Freedom of Expression – applies to local politicians and former Cllr Mike Harris points to Mr Justice Beaton’s decision in the High Court: “His ruling that political speech is protected under article 10 of the Human Rights Act is a judicial rebuke to these inquisitions.”

He was supported by the Brockley Society at the time who wrote: “The bigger issue is whether cases like this discourage Councillors from expressing themselves via channels like Twitter. Social media is the best thing that has ever happened to local politics, creating an instant direct link between voters and their representatives. It would be a shame if instances like this one were to inhibit the growth of digital democracy and it would be good to see a few more of our elected representatives bothering to use social media to tell us what they are up to on our behalf.”

It should be noted that the national Standard’s Board for England was abolished in the 2011 Localism Act by the coalition Government. In March 2012, the Minister, Bob Neill MP said:

“The Standards Board regime led to an explosion in petty, partisan and malicious complaints that dragged down the reputation of local government, as well as suppressing freedom of speech.

Our reforms take a tough stance on council corruption by making serious misconduct a criminal offence, accompanied by the sunlight of transparency on financial and union interests. Such reforms will give local people the confidence that councillors are putting local residents’ interests first.”

If we turn the tables, senior council officers have immense delegated powers now. In a Mayoral authority these can be considerable in financial amounts and political effect. There is another code – the employee code of conduct. Lewisham Council’s refers to managers and senior officers. However, seldom addressed is the conduct of the monitoring officer, finance director or chief executive. The ‘golden triangle‘ of statutory officers. The obvious question is quis custodiet ipsos custodes – who guards the guards?

The LGA are seeking comments and responses on their draft Member Code of Conduct here I would say that the LGA should conduct a review on the original purpose of the Standards regime to prevent latter day Poulson’s and T Dan Smith’s not to mention Donnygate.

Postscript: The Centre for Public Scrutiny have responded to this consultation. Their response is nuanced. Key points include:

“Increasingly, we note a blurring between councillors’ “formal” role and their ability to be able to act freely as private citizens. This is particularly the case in relation to the use of social media.
Social media can be a challenging place for councillors. It is a vital tool for communicating with constituents, and for political campaigning. Councillors might use social media for communicating in their professional and private lives, and may use the same account for all of this communication.


Some social media activity might be seen by councillors as being carried out in a private capacity; to another observer such activity might be seen as part of that councillor’s official role. Understanding the acceptability of different activity in different contexts is highly subjective. Often, council staff are less literate in matters relating to social media than councillors
themselves are, which leaves councillors further exposed and in receipt of advice from their council which may be irrelevant, inaccurate or out of date. While it is not for the Code of Conduct to delve into the issue of where and when councillors are acting in which capacity, this is a matter that will need to be resolved at a local level if the Code is to have full effect.

Civility, bullying and harrassment
We agree that courtesy in behaviour, speech and in the written word are important. Treating others with respect is critical to local authorities being able to transact business. However, calls for “civility” can be misused, by those seeking to police the tone of their political opponents, and by those seeking to maintain a form of discourse in local authorities that is exclusionary, and difficult to understand and participate in by the uninitiated.

Passion and anger are important parts of debate. Calls for civility can seek to recast this disagreement as an issue of etiquette, and they make it easy for people to dismiss their opponents as intemperate and impolite. Calls for civility can also seek to ignore and elide the real microaggressions that people (including councillors) in more vulnerable positions because of their age, gender, ethnicity or disability may experience. Calling out coded, subtle aggressions can be seen itself as incivil. In a macro sense, calls for civility can go alongside calls for the retention and protection of privilege. This can and will spill over into matters relating to bullying and harassment. Bullies will often see themselves as victims – often of incivil behaviour or “bad faith” actions on the part of their victims.

Councils need a more nuanced and reflective way to understand and act on dialogue and relationships. We think that the Model Code should include more of a critical summary of formal and informal behaviours, encouraging councillors to explore these issues and how they might impact on their peers individually and collectively.
Officer neutrality
In our experience, the principle of officer neutrality can often be misunderstood. Poor demarcation of roles between members and officers can lead to accusations that the officer corps has been “captured” by the executive, and the general belief that officers work for the administration. Supporting information, training and development on this point should
focus – including training carried out within councils – should highlight and reflect on this issue with both members and officers.” – Ed Hammond

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