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Code of Conduct, Register of Members' Interests and Declarations of Interest at meetings

Complying with the requirements of the Members' Code of Conduct in relation to the Register of Members' Registerable Interests (including gifts and hospitality) and Declarations of Interest at meetings of Council and Committees when considering Council business

The purpose of this information is to assist you as a District Councillor in complying with the requirements of the Members' Code of Conduct after the District Council elections, in relation to the Register of Members' Registrable Interests (including gifts and hospitality) and Declarations of Interest at meetings of Council and Committees when considering Council business. It also gives general advice on maintaining high standards of conduct in local government.

Thee quantity of new information may appear daunting. However, you will find that knowledge of the ground rules of local government will be of great assistance to you in discharging your office as a District Councillor.

The following documents are relevant to this information:-

  1. Code of Conduct (link)
  2. Register of Members' Financial and Other Interests (form)
  3. Notes to the Register of Member's Interests (PDF, 4 pages, 72kb)
  4. Declaring Interests Flowchart – questions to ask yourself (PDF, 2 pages, 100kb)
  5. Maintaining High Ethical Standards in Local Government (PDF, 6 pages, 106kb)

The "New" Ethical Framework

The Coalition Government introduced the Localism Act 2011 which abolished the previous ethical framework and replaced it with a duty on Council's to adopt a new code with no powers for Councils to suspend Members for misconduct.

The Government is of the view that it is the right and proper responsibility of the electorate to determine who represents them and that the abolition of the previous ethical framework regime will restore power to local people. This is an important point of principle for the Government.

Chapter 7 of Part 1 of the Localism Act 2011 has introduced a new ethical framework where Local Authorities, including District Councils and Parish/Town Councils have a duty to promote and maintain high standards of conduct and are required to adopt a code of conduct and standards of conduct arrangements within which elected and co-opted Members must operate backed up by arrangements to deal with allegations of misconduct .

The new system has the following six elements:

  1. Codes of Conduct. This sets the standard of conduct which elected members are expected to meet and is included in the constitution and there is a link to the code of conduct on the District Council's website on the webpage "Member Induction 2015"
  2. Disclosure of Members Pecuniary Interests on taking office. Members of the Council have a legal obligation to notify the Council's Monitoring Officer of any "disclosable pecuniary interest" for the purposes of inclusion within the register of Interests: Section 30(1) Localism Act 2011;
  3. Members of the Council have a legal obligation when attending a Council meeting (i.e. meeting of the Council, or any committee, sub-committee or joint committee of the Council), to disclose that "disclosable pecuniary interest(s)" to the meeting if it is not on the register : Section 31(2) Localism Act
  4. A person commits an offence if, without reasonable excuse, he/she fails to register or disclose a "disclosable pecuniary interest" as required or knowingly or recklessly provides information in relation to a "disclosable pecuniary interest" that is false or misleading : Section 34 Localism Act 2011. A person who commits an offence, as outlined above, shall upon summary conviction by a criminal court be liable to a fine not exceeding £5,000 and may be disqualified for a period not exceeding 5 years from being or becoming a Member or Co-opted Member of a Council.
  5. A Local Authority must have arrangements to deal with allegations of misconduct by Members. Complaints about Member misconduct may in the first instance be referred to me in my capacity as the District Council's Monitoring Officer. Cases which give cause for concern will be investigated. In the most serious cases the District Council's Corporate Governance Standards Sub-Committee may consider cases of alleged misconduct by Members. If a Councillor is found to be in breach of the Code of Conduct it may impose sanctions including a public censure.
  6. Independent Persons – Independent Persons give independent advice on standard issues.

 

Ryedale District Council adopted its Code of Conduct (forms part of the Council's Constitution) on 19 May 2012 and 12 July 2012. The full title of the code of conduct is "Members' Code of Conduct with General Principles of Local Government".

The Code of Conduct comprises the following four parts:-

  1. Part 1 - Principles
  2. Part 2 - Outcomes
  3. Part 3 – Interests – Registering Pecuniary and Non-Pecuniary Interests
  4. Part 3 – Interests – Declaration of Interests at Council and Committee meetings

Principles

Part 1 of the Members Code of Conduct describes the Seven Principles of Public Life which set out the ways in which elected holders of public office should behave in discharging their duties.

These principles are consistent with the seven "Nolan" principles of Standards in Public Life, namely: selflessness, integrity, objectivity, accountability, openness, honesty and leadership. A more detailed description of these important principles can be read in Part 1 of the Members Code of Conduct. You are recommended to carefully read the seven principles of Standards in Public Life.

The Nolan Principles were defined by the Committee for Standards in Public Life in a report published in July 1997 and are relevant to all elected Councillors. This report was commissioned and approved by Parliament.

The Members Code of Conduct is constructed around the values drawn from the Seven Principles of Public Life – "The Nolan Principles".

In accordance with the seven principles described above, the Localism Act 2011 and the Members Code of Conduct requires that the Council maintains a Register of Member's Pecuniary Interests and that Members make declarations of their pecuniary interests at Council and Committee meetings which are described below.

Outcomes

Part 2 of the Code relating to outcomes was produced by the Local Government Association (LGA) and is described as a principles based, outcomes focussed Code of Conduct. Part 1 of the Code provides the principles and Part 2 provides the eleven outcomes the principles seek to achieve. Absent are indicative behaviours that are required to produce the outcomes but the LGA believe many of these are to be found in existing documentation such as Member Officer relations protocol and the Planning Code of Practice. This is a different approach from the more traditional code with more precise do's and dont's.

Interests

The "Interests" part of the code includes the following provisions:

  • a section in Part A on Disclosable Pecuniary Interests. This incorporates the descriptions of interests contained in the regulations. This is considered helpful to start explaining to Members what the statutory provisions entail.
  • a section in Part B on Disclosable Other Personal Interests. This seeks to replicate the requirements of the last code; but excluding the statutory requirements for disclosable pecuniary interests.

As the regulations exclude any reference to gifts and hospitality, the Members' Code of Conduct and the Register of Members' Interests form also makes provision in the code for notification.

 

Disclosable Pecuniary Interests (DPIs) are defined in the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012. These are listed in the Members' Code of Conduct .

A new (or re-elected) Member of the Council must notify the Monitoring Officer of any "disclosable pecuniary interest" (or any unregistered "disclosable pecuniary interest" in the case of a re-elected Member) before the end of 28 days beginning with the day on which the persons becomes a Member of the Council.

Failure to register or disclose a disclosable pecuniary interest will be punishable upon conviction by a fine of up to and including Level 5 (£5,000). In addition, the Magistrates' Court may on conviction disqualify a Member from being a Member of a Council or any other relevant authority for up to five years. Breaches of the Code of Conduct in relation to failure to declare other pecuniary interests and non-pecuniary interests can only be dealt with as a breach of the Code. Prosecutions for a breach of the legislation relating to disclosable pecuniary interests may only be brought by or on behalf of the Director of Public Prosecutions. The DPP is unlikely to authorise a prosecution unless the breach of the legislation is considered serious.

The definition of a Disclosable Pecuniary Interest in the 2012 Regulations is significantly different from the former Prejudicial Interest definition. It applies to interests of the Member and their spouse or partner. This means that for registration, it is wider than the old requirements which applied only to interests of the Member him/herself. But for disclosure and non-participation purposes it is significantly narrower than the old definition, as it omits reference to the Member's family or friends.

It is broader than the old definition of a prejudicial interest, in that it is a Disclosable Pecuniary Interest even if there is no likelihood that it might prejudice the Member's perception of the public interest.

It is also narrower in that it applies only to very defined categories of interest and omits reference to matters likely to affect the wellbeing or financial standing of the Member, or his/her family or friends.

Councils are advised to adopt local Codes which require Councillors at least to disclose where a decision would affect or relate to family or friends. That is the reason why there is a second category of interests to register and declare apart from DPIs.

 

The Monitoring Officer is responsible for ensuring that each Authority's register (ie District, Parish and Town Councils) is kept at the principal Authority's offices and is available for public inspection within the District Council's (principal authority). Copies of the District Council's Register of Interests and those of every Parish and Town Council must be published on the District Council's website and, if the Parish/Town Council has a website, then the relevant Register must also be available on that website.

You are asked to complete the Register of Interest Form on-line within 7 days of taking office. Guidance notes to the Register of Member's Interests (PDF, 4 pages, 72kb)

 

+ - Declarations of Interest

A central feature of the Code of Conduct is the mechanism for handling conflicts of interest between a Member's pecuniary or personal interest and the public interest. Amongst many other things, the Code of Conduct advises Members about disclosures of interest, whereby Members who have a pecuniary or personal interest arising at a local authority meeting should declare it.

Given the potentially serious consequences of breaching the Code of Conduct, Members are asked to take care when attending Council and Committee meetings to ensure that they declare disclosable pecuniary interests and personal and prejudicial interests.

Members will see that the agenda for Council and Committee meetings includes an item for the declaration of interests . It is the duty of the member to consider whether or not they need to make a declaration of interest at the meeting under that item and declare such interests.

For the avoidance of any doubt, it is your responsibility to disclose pecuniary and other interests.

Staff cannot formally remind or prompt you to disclose a pecuniary or personal and prejudicial interest. However, we will help informally when we can but in the last resort it has to be your responsibility. It is always good practice to discuss declarations of interest matters with the Council Solicitor or some other Senior Officer prior to any Council or Committee meeting rather than in open Committee.

The basic rule is that where a Councillor is present at a meeting of Council or a Committee or Sub-Committee at which a matter in which the Councillor has a pecuniary or personal and prejudicial interest is being considered:

  1. The Councillor must disclose that he/she has a disclosable pecuniary interest or a personal and prejudicial interest; and
  2. The Councillor must not speak or vote on the matter unless he/she has a dispensation and he/she should leave the Committee room during consideration of the item.

Further details are given below.

 

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A Member has a duty to disclose a "disclosable pecuniary interest (DPI)" in relation to Council/Committee business whenever they attend any meetings of the Council, or Committee. If the DPI is not currently on the register, or has not been notified already to the Monitoring Officer, then the Member must notify it to the Monitoring Officer within 28 days so that it can be included on the Register.

If a Member has a DPI in any matter, he/she must not participate in any discussion of the matter at the meeting. The Act does not define "discussion". Members must not participate in any vote on the matter. However, the Member can seek a dispensation which would allow him/her to speak and/or vote as necessary.

Failure to Comply

Failure to comply with the requirements outlined above is a criminal offence. The Council's Code of Conduct makes provisions for disclosure and withdrawal for interests other than DPIs, but failure to comply with these requirements would be a breach of the Code of Conduct but not a criminal offence. The requirement to withdraw from the meeting room is covered by Standing Orders, which would be neither a criminal offence nor a breach of the Code of Conduct. The requirement for Members to withdraw from the meeting room when they have a DPI in an item under discussion, provides transparency and openness in the decision making process.

 

Section 32 of the Localism Act 2011 enables a Member to ask the Monitoring Officer to exclude from the public register any details which, if disclosed, might lead to a threat of violence or intimidation to the Member or any person in the Member's household. If the Monitoring Officer agrees, then this Member will only be required to recite at the meeting that he/she has a "disclosable pecuniary interest", rather than giving details of that interest and the detail can be excluded from the published version of the Register.

 

You are advised that decisions of the Council or the Council can be challenged by judicial review by the High Court where a Member can be shown to have a bias. Bias has been defined as "an attitude of mind which prevents the [decision-maker] from making an objective determination of the issues that he has to resolve".

The context of this area of law is that decisions of the Council and its committees must be made in the public interest and not on the basis of the financial interest of an individual Councillor or a Councillor's family member/ friend/close business associate or outside body associated with the Councillor.

Following the House of Lords case in Porter v Magill the current test for bias is whether:

  • a fair minded observer
  • who is suitably informed; and
  • who having considered the facts
  • would conclude (ie not might conclude)
  • that there was a real possibility of bias (ie less than a real probability of bias)

The Localism Act 2011 and 2012 Regulations on DPIs as described above have the following limitations, which justifies having a separate and distinct provision for Disclosable Other Personal Interests:-

(i) DPIs are limited to the Member and spouse. There are a range of other interests that are pecuniary (or 'prejudicial' in 2000 Act language) that would justify debarring Members from involvement in decision making and, preferably, from the meeting room during debate and decision making.

Accordingly interests of other members of a Councillor's family and persons having a close association with the Councillor need to be included in a disclosure of interests provision. Such interests may well amount to bias and Local Authorities are well advised to include provision in their own local codes to provide for disclosure and non participation in decision making in relation to the interests of such persons in order to minimise the risk of bias in their decision making. Without a provision of this kind there would be a risk of having a Councillor sitting in a Planning Committee meeting and deciding on their son or daughters planning application.

(ii) The 2012 regulations exclude the well applied judicial test of bias contained in paragraph 10 of the old code in the definition of prejudicial interest.

The judicial test of bias is underlined in the text below:-

"10(1) Where you have a personal interest in any business of your authority you also have a prejudicial interest in that business 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 your judgement of the public interest."

Again, it would seem appropriate for a local authority to include this test in their local codes as a means of enabling Councillors to make the judgement as to whether the interest (other than a disclosable pecuniary interest) they have (or their spouse or family member or person having a close association) is one in respect of which they should exclude themselves from involvement in any decision.

(iii) The words 'it relates to or is likely to affect' which defines (in Paragraph 8 of the old code) the relationship of an interest to a matter to be, or being considered, are absent from the description of a DPI. The effect would seem to narrow considerably the meaning of Section 31(1) (b) of the Localism Act 2011 – 'has a disclosable pecuniary interest in any matter'... So, for example, a Councillor may have an interest in a property, but that Councillor does not have an interest in the neighbour's property. It would not, therefore, seem to be contrary to the DPI provisions to participate and vote on a planning application about the neighbour's property as the Councillor does not, under Section 31 of the Localism Act 2011, have an interest in the neighbours property. The words 'relating to or affecting' the Councillors interest cannot be implied in criminal law, if they are not in the legislation. The effect seems to be that 'the matter to be considered, or being considered' must be about the Councillor's interest for the requirements on participation etc to apply. If the matter merely relates to or affects the interest, but is not actually about the interest, then the Councillor does not have a DPI. The limiting of the application of the DPI requirements would apply to all the descriptions of interests in the regulations. In order to plug this rather wide gap, a local code includes a provision including the 'relating to or affecting' part of the definition.

In general terms, in relation to Disclosable Other Personal Interests, Members will need to ask themselves two questions when deciding if they can participate in the consideration of a matter to be determined by Committee or Council:-

Firstly – Do I have a personal interest?

Yes if your interest falls within the definition of a "personal interest" as defined in the code. Please refer to Part B of the Members' Code of Conduct and the attached Annex D Declaring Interests Flowchart – questions to ask yourself (PDF, 2 pages, 100kb)

Where a Member considers he/she has such a personal interest in a matter, he/she must always declare it, but it does not then necessarily follow that the personal interest debars the Member from participation in the discussion.

Secondly – Is my personal interest pecuniary/prejudicial?

The Member then needs to consider whether the personal interest is a pecuniary/ prejudicial one. The Code provides that in general terms a personal interest becomes a pecuniary/prejudicial one if the interest is financial or relates to a regulatory issue eg planning permission and the following test is satisfied:

Non Participation in case of Pecuniary Interest

Where you have a personal interest in any business of your authority you also have a pecuniary interest in that business 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 your judgement of the public interest and where that business–

(a) affects your financial position or the financial position of a person or body described in paragraph 1(2); or
(b) relates to or affects the determining of any approval, consent, licence, permission or registration in relation to you or any person or body described in paragraph 1(2) or 2(2) above."

Please refer to the Members' Code of Conduct and Annex D – Declaring Interests Flowchart.

If a Member has such a personal and pecuniary/prejudicial interest, he/she should not participate in a discussion on the matter at Committee and must withdraw from the room and must not seek improperly to influence a decision in the matter.

It must be emphasised that the rules relating to the declaration of interests are not like a mathematical formula in which there is always a right answer and Members will always know when they should declare a pecuniary/prejudicial personal interest and leave the Committee Chamber.

Part of the Code which deals with declarations of interest is a framework for Members to exercise a reasonable judgement – after taking advice from either myself, as the Council Solicitor or another Senior Officer.

If the interest is clear and substantial a Councillor should not take part in the proceedings and should always withdraw from the meeting whilst the matter is being considered.

A failure by a Councillor to declare a personal and pecuniary/prejudicial interest in accordance with the Code of Conduct can give rise to a complaint to the Corporate Governance Standards Sub-Committee of Ryedale District Council which has been set up by Parliament to regulate the conduct of Members.

 

Under Section 33 of the Localism Act 2011 a dispensation can be granted in the following circumstances:

  • That so many Members of the decision-making body have DPIs in a matter that is would "impede the transaction of the business" (inquorate).
  • That without the dispensation, the representation of different political groups on the decision-making body would be so upset so as to alter the outcome of any vote on the matter.
  • That the authority considers that the dispensation is in the interests of persons living in the authority's area.
  • That, without a dispensation, no Member of the Committee would be able to participate on this matter.
  • That the authority considers that it is otherwise appropriate to grant a dispensation.

Any grant of dispensation must specify how long it lasts for, up to a maximum of four years.

 

The Council has appointed two Independent Persons. The functions of the Independent Persons are that they must be consulted by the Authority before it makes a finding as to whether a Member has failed to comply with the Code of Conduct or decides to take action in respect of that Member. They may also be consulted by the authority in respect of a standards complaint at any other stage (for example on receipt of the complaint). Finally they may be consulted by any Member or co-opted Member of the District, Parish or Town Council against whom a complaint is made.

 

Finally please do read Annex E which includes a summary of the legal obligations of Councillors. In a nutshell you are advised to apply in public office, the standards that you expected to be applied by other public office holders before you took public office.

 

 

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