Final comments on the Code
Question 10: Do you have any other comments or suggestions about any aspect of the revised Code?
Twenty-eight respondents (58%) provided additional final comments or suggestions in relation to the Code. These were wide-ranging in scope. Many respondents took the opportunity here to restate the point or points that they felt most important from the main part of the consultation.
One respondent raised the issue of the written style of the Code here, suggesting that there is a mixed response to the use of the first person, and that the simplication of the Code has undermined the Code in some respects:
“Some Elected Members feel that it is helpful and that it will help them take ownership of the Code of Conduct. Others feel that the change is not helpful and has a much more severe tone. The way that the document is written with ‘I will/I will not’ is very personal and was also read by some as being patronising…
The attempt to simplify the Code of Conduct, for some, has left ambiguity in areas that used to be clear and a feeling that the simplification undermines the gravitas of the document….It feels less formal which dilutes its importance.”
A number of respondents used this space to comment on the Code Annexes, which were not asked about in any other question. Annex A – the Protocol for relations between Councillors and Employees – was a particular focus for these comments:
“[In] Annex A- there appears to be no regard given to the fact that elected members have a specific role to perform in relation to representing their area and what this means for their engagement with officers particularly around casework and supporting constituents.
I feel a section acknowledging this in the code of conduct and setting it as one of the fundamental roles of a Councillor would be beneficial. In my experience as a Councillor I regularly have to act to support constituents in complex matters such as social work issues or education issues. My attendance and interaction in these situations is often very limited to simply supporting constituents through complex processes but can often be viewed by council officers … as a negative engagement..”
Other respondents expressed concerns about the balance in Annex A, provisions 24-25, noting that Councillors do sometimes need to express public criticism as part of holding council officials to account.
“A councillor needs to be able to communicate with the public via the press and/or digital media on a wide range of issues, including Council performance. This necessarily includes comment and/or criticism and provided this is couched in moderate language and reasonable tone, should be an accepted part of a councillor’s role.”
Various respondents touched on issues related to monitoring compliance with the Code, and what should happen in relation to complaints or breaches (Annex C).
Some respondents expressed concen that the revised Code may be likely to give rise to increased numbers of “vexatious” complaints against councillors, and that the demands of the Code and concern around inadvertendly breaching it might be offputting to potential councillors, or constrain their activities in ways that would not be in the public interest.
“It is clear that behaviour that is perfectly reasonable, and actions that the public would reasonably expect their councillor to take or undertake on their behalf, and that are currently within the bounds of acceptable behaviour and (in some cases) afforded enhanced protection (eg. under Article 10 of the European Convention on Human Rights), could be made into automatic breaches of this new, draft Code.”
“Councillors were concerned that the Code is very restrictive and takes no account of the scenario where complaints are made for malicious or political reasons. The focus on what are perceived as ‘technical’ breaches is considered to be likely to dissuade people from standing for public office.”
Accordingly, some respondents felt that the processes for expressing and managing complaints against councillors need to be reviewed alongside the Code itself. This included concerns about: the increased scope for complaints against councillors and how these will be managed under the revised Code; the balance of the complaints process itself; and the practices surrounding interim suspensions.
“The processes and practices involved in investigating and adjudicating complaints also require to be reviewed. In particular, the balance is currently tipped substantially in favour of the complainant to the detriment of the respondent at present, and this can lead to prejudicial and unfair outcomes for the respondent, that are not in the public interest and could serve to undermine confidence in the ethical standards framework.”
Respondents who were concerned about these aspects of the Code also expressed some critique of the current role of the Ethical Standards Commissioner in its role to investigate/adjudicate on complaints:
“Improvements will be ineffective if the shortcomings of the Ethical Standards Commissioner and the investigative process is not addressed.”
“The current lack of oversight of the ESC unnecessarily undermines the confidence of councillors in the entire process.”
A few respondents noted that the guidance will be very important to the successful implementation of the revised Code, and would welcome opportunities to comments on/support the development of the accompanying guidance. There were also requests for a more streamlined approach to the production of guidance to the Code:
“The production by the Commission of an amalgamated Code, Guidance and cases for illustration should be repeated.”
“It would be helpful if the number of separate guidance and advice documents issued by the Commission could be reduced. One omnibus guidance document, updated from time to time, is a better option than a growing number of advice notes sitting alongside or below the guidance.”
Other more specific comments included that the Code should be extended to include community councils; that a clear public interest defence needs to be part of the Code at Paragraphs 3.21-3.23; that the potential bias in the Code in relation to the role of private businesses needs to be reviewed; and suggestions to reference other documents in relation to specific aspects of the code, such as the relationship between councillors and planners.