west*wales*news*review

West Wales News Review — analysis with a sustainability slant

Gulliver’s Travels in County Council Land

There are more similarities than you may think between a county councillor and a victim of Medieval torture whose tongue has been torn out. The Code of Conduct for councillors in Wales imposes such onerous conditions that I am no longer surprised that silence so often reigns in the council chamber.

Suppose that voters elect a candidate who is vehemently opposed to a particular council policy, such as an educational reorganisation which robs rural areas of schools and creates fewer, larger schools to which outlying pupils have to travel long distances. The candidate speaks out about the folly of removing education from dozens, maybe hundreds, of square miles of rural Wales. He or she speaks for the voters, and he or she is elected.

Imagine the disappointment of those voters when their newly elected councillor appears to have become a Trappist monk overnight. Have they been misled by an ambitious political climber? There is that possibility, of course, but it is far more likely that the blame lies in the Code of Conduct.

The Code has the best of intentions, to remove opportunities for corruption in public service, but at the same time it ties up councillors in a tight net of prohibitions, until they resemble Gulliver in Lilliput.

I quote from the Code (Personal Interests, p.27, my emphases):

“If a member of the public could reasonably conclude that when you’re taking a decision on behalf of the authority as a whole you are more influenced by issues in your ward or electoral division than by the interests of the authority as a whole e.g. if the authority needs to make a provision but you don’t think it should be in your ward or electoral division, then you would have a personal interest.

“This paragraph has given rise to great interpretative difficulties. The crux of the problem is that a strict interpretation of the paragraph, as worded, could well preclude members from participating in any decision affecting their ward – whereas the underlying policy intention had been to limit the scope of this provision to decisions made by individual councillors in the exercise of executive functions.

“I do not believe that it would be in the public interest, or in the interests of local democracy, to adopt a literal interpretation as a matter of course. Therefore as a general rule, in exercising my discretion, the decision as to whether or not to investigate will be based on the assumption that the paragraph is actually directed at individual members making decisions in the exercise of executive functions and decisions such as those made at planning or licensing committees.

“Whilst s25 of the Localism Act 2011 outlines circumstances when members should not be regarded as having a closed mind when taking decisions I do not consider that this impacts upon the provisions of the Code. However I will review this in light of any future decisions and case law on the effect of this provision.

“Example

“The Adjudication Panel considered a case concerning this provision of the Code. The member had declared his opposition to a controversial planning application in his election manifesto pledging to “work tirelessly on issues of concern” and to “oppose the current development proposal”. Having been elected the member voted against the first planning application which the Council considered when the application was refused. He was subsequently quoted in the local and national press defending his decision to oppose the development. The Adjudication Panel found that the member had acted in such a way that a member of the public might reasonably perceive a conflict between his role as a local councillor and his role in taking a decision on behalf of his authority. It suspended the member from the planning committee for a period of 3 months.”

This is a real case, which indicates why councillors’ verbal contributions are so often limited to an innocuous question, and why votes generally accord with the advice given by the council’s officers, to whom the Code gives great influence.

From the Code of Conduct (Considering Advice Provided to You and Giving Reasons, p.24, my emphases):

“You must have regard to all of the advice you receive from your authority’s officers, especially advice from the Chief Executive, Chief Finance Officer, Monitoring Officer and Chief Legal Officer where they give it under their statutory duties. Such advice may also be contained in policy and guidance documents produced by your authority. This is a complex area and there are provisions within other legislation which underpin it, but in general, it goes well beyond a requirement to simply consider and reject advice if it’s not welcome. I expect members to follow the advice unless there are strong reasons not to do so, and where a decision is made not to follow advice, it is highly advisable to record the reasons for not doing so.

“It is worth reflecting also that this places a considerable onus on statutory officers to consider their formal advice carefully, and again, where they believe it is likely to be contentious, to keep a record of it. There may be isolated cases where advice is given to a member which, when followed, leads to a breach of the Code. In investigating such cases, if the evidence suggests that there has been a breach, I would generally regard the flawed advice as a factor in mitigation, rather than as evidence that no breach occurred.

“It is always helpful, if you can, to get advice as early as possible. If you can, ask for advice in good time before a meeting, rather than at the meeting or immediately before it starts. Make sure you give the officer concerned all of the information they need to take into account when giving you advice.

If you seek advice, or advice is offered to you, for example, on whether or not you should register a personal interest, you should have regard to this advice before you make your mind up. Failure to do so may be a breach of the Code.

“You must give reasons for all decisions in accordance with any statutory requirements and any reasonable requirements imposed by your authority. Giving reasons for decisions is particularly important in relation to regulatory decisions and decisions where people’s rights are affected but it is not confined to these.

“As a matter of good practice, where you disagree with officer recommendations in making a decision, you should give clear reasons for your decision. This applies to decisions to vote against the advice of the statutory officers, even if you lose the vote. If you decide to vote against their advice, you should ensure that your reasons for doing so are recorded in the relevant minutes. You should be aware that voting against the advice of the statutory officers without good reason may be a breach of the Code.”

What is ‘good reason’? When does a good reason shade into a bad reason? I don’t know.

The constraints imposed by the Code of Conduct seem to me to prevent councillors from fully representing the people who elected them, and therefore to be a triumph of managerialism over democracy. The Code presupposes an ideal of neutrality, decision-making on the basis of neutral analysis of the facts as presented in every case. The imposition of supposed impartiality is in itself an example of bias in favour of a presumed technocratic way of thinking to which decision-makers bring minds empty of everything except the facts of the case at hand, the exigencies of the Law and of the Code of Conduct.

In contrast, we all have minds which reflect our own interpretations of knowledge and experience, which are biases even if not consciously acknowledged as such. The attempt to exclude from local government both the wider context for policies, and individual convictions, is a particular bias which has the effect of favouring officer-led local government  and as such, I contend, is a legitimate object of challenge.

Read it yourself —

The Code of Conduct for members of local authorities in Wales: Guidance from the Public Services Ombudsman for Wales for members of county and county borough councils, fire and rescue authorities, and national park authorities:

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2 thoughts on “Gulliver’s Travels in County Council Land

  1. Yes, the “code of conduct” can seem intimidating but actually, if you have consulted your electorate and are not personally likely to benefit by a decision you are not likely to get into trouble by honestly representing your voters.
    Yes, interests should be declared but they are often “not predujicial” in that they do not affect your position. As someone who has been formally accused of numerous counts of breaking the code of conduct, I can say that in my case the Ombudsman has been reasonable and not found fault with my behaviour.
    However, I feel that councillors do not need a special “code”, the law should be enough. The stress and waste of time this bizarre system causes I personally could do without Democracy is difficult enough without extra rules and codes for the elected members and abandoning the “code” in other areas of the UK has not obviously made councillors behave better or worse.
    Perhaps the Welsh Government could follow on and give the ombudsman a break to devote more time to more important complaints?

    Sian Caiach

    • I think that fear of sanctions under the code too often inhibits councillors from speaking out, and from disagreeing with officers, and thus contributes to the officer-domination of local government. It’s not an issue that will excite the public, though, and that means change may be a long time coming. Still another three years, almost, until WAG elections that may result in an administration willing to tackle the democratic deficit in local government.

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