Update: local government

The long-awaited new model code of conduct for members finally came into effect on 3 May 2007. Authorities accordingly have six months from that date in which to adopt their own codes under s51 Local Government Act (LGA) 2000. The legislation containing the new code is to be found in Local Authorities (Model Code of Conduct) Order 2007 (SI 2007/1159). There is now a single model, instead of different versions for different authorities, but not all its provisions are mandatory for all authorities.

Livingstone revisited

One of the most significant changes is to the scope of the model code, following the decision in Livingstone v Adjudication Panel for England [2006] EWHC 2533 (Admin); 'Local Government Update' ((2007)151 SJ 425, 30.03.07). In Livingstone, the court held that, on the existing wording in s52 LGA 2000, the scope of the authority's code of conduct (adopted under the previous model) was confined to the performance of a member's functions as such. The scope of para.4 of the authority's code (bringing the member's office or authority into disrepute) was accordingly limited to such activities as a member, even though the code purported to apply para.4 more widely to conduct in 'any other circumstance'. In Livingstone, the significance was that the code did not apply to disrespectful comments made in public by the mayor of London when he was off duty.

Expansion of the code

The new model code has been both expanded and contracted in this respect. It has been expanded (under para.2(1)) so as to define conduct in an 'official capacity' (to which the large majority of the code's provisions relate) to include circumstances where a member claims to act or gives the impression of acting as a representative of the authority. This is in addition to circumstances where (as existing) the member conducts the business of the authority or his/her office, or acts as a representative of the authority. That expansion will hardly be contentious.

Contraction of the code

More significantly, the very limited provisions of the model code which apply to conduct outside (as well as within) a member's official capacity will, in that respect, now be contracted to cover only circumstances where that conduct constitutes a criminal offence (para 2(3)). This in contrast to the very widely drafted provisions considered in Livingstone.

The substantive provisions of the new model code which thus apply to conduct beyond a member's official capacity are: bringing the member's office or authority into disrepute (now para.5); using or attempting to use the member's position improperly to confer an advantage or disadvantage (now para.6(a)); and intimidating or attempting to intimidate persons likely to be complainants, witnesses or otherwise involved in an investigation or proceedings concerning a breach of an authority's code of conduct (para.3(2)(c)).

The last of these provisions is new; under the previous model code, only the provisions corresponding to the first two of these extended beyond a member's official capacity. Of all these provisions, the most significant is that concerning disrepute, which has been widely applied and used, and under which the most severe sanctions have been imposed (in respect of criminal offences).

Missing pieces of the jigsaw

These changes, and the full impact of the Livingstone decision, create some curious effects. The court in Livingstone doubted whether the commission of a criminal offence by a member was necessarily within the proper scope of the model code as defined by s52 LGA 2000 (such as within the performance of a member's functions). Accordingly, the new model code, while contracted in scope from the earlier version, could yet be wider than the parent legislation presently permits, and therefore potentially ineffective (at least in part).

However the missing pieces of the jigsaw in that respect, are new provisions in the Local Government and Public Involvement in Health Bill going through Parliament, Part 10 of which will make very significant changes to the legislative framework concerning ethical standards. In particular, the powers of the secretary of state will (rather alarmingly) be extended so as to permit principles and model codes of conduct 'which are to apply at all times' to a member.

Central government will accordingly have very wide powers to control the conduct of councillors, potentially making serious inroads into members' human rights, particularly under Article 8 of the European Convention on Human Rights. The government's explanation for this considerable expansion of its powers, ironically, has been to give effect to the contraction of the model code as described above. While the changes to the code itself will not be contentious in that respect, the residual power of the government is a worrying example of legislative overkill.

However, until the bill is passed and the new provisions are brought into force, authorities are left in the odd position that their existing codes (adopted following the previous model) say more than they can lawfully mean. If, pending enactment and implementation of the provisions in the bill, authorities were to adopt new codes following the new model, the new codes though contracted in scope would still say more than they can lawfully mean. Accordingly, while authorities will be working towards having new codes in place by November 2007 (therefore requiring members to give a new undertaking to comply with the provisions of the new codes), full implementation of the new codes will be dependent on the government getting the bill through Parliament and bringing the new provisions into effect. Amid the confusion which all this will cause, existing members and those considering whether to stand for election can be excused for wondering whether '“ for them '“ the game of public office is worth the candle of the ethical framework.

Other changes to the model code

The other principal changes under the new model code are

• to restructure the provisions concerning members' interests, and to introduce some relaxation so that, for example, a member may attend and speak at a public meeting despite having a prejudicial interest;
• to expand the ethical requirement to give reasons for decisions beyond executive decisions (as presently exists) to all decisions reached by a member where there is a statutory requirement or one reasonably imposed by the authority; and
• the introduction of an express public interest defence for whistleblowers, following the decision in the Dimoldenberg case (2005) APE 0241.

Bias and pre-determination

A curious reversal of the usual roles in relation to claims of bias and pre-determination occurred in R (Ware) v Neath Port Talbot CBC [2007] EWHC 913 (Admin), where a number of (non-politically aligned) members of the authority's planning committee had previously attended a meeting of objectors to a proposed development.

The members had not expressed any view about the proposal, but were later warned by the authority's over-cautious monitoring officer that if they failed to withdraw from the meeting of the planning committee there could be a complaint to the ombudsman. The members accordingly withdrew, and the committee granted planning permission on a majority of a single vote. An objector then successfully challenged the grant of permission, on the basis that the advice given by the monitoring officer had been wrong and might well have made a difference to the outcome.

Collins J concluded that the advice from the monitoring officer had been tantamount to saying that the members had better not remain or play a part in the decision-making. He held, at para.[33] that it was: 'important that councillors should not be inhibited from carrying out the duties imposed upon them by the democratic system, by over cautious advice from monitoring officers. It is only if there really is a real risk that the informed and fair-minded observer would believe that there was bias that they should not participate. I think in this connection there is force in [the] submission that the 'when in doubt get out' mantra is inappropriate when applied to what third parties might think. It is clearly appropriate when a member has to decide whether he has a personal interest which may disqualify and perhaps appropriate where his acts or omissions might cast doubt on the propriety of his approach.'

Public authorities and the private sector

The previous two updates ((2006)150, SJ 1,325, 13.11.06) and ((2007) 151, SJ 425, 30.03.07) tracked the progression of YL v Birmingham City Council, together with another case R (Johnson) v Havering LBC, through the High Court to the Court of Appeal ([2007] EWCA Civ 26 & 27) ((2007) 151 SJ 872, 06.07.07), on the question of whether a private sector body (Southern Cross) running a residential care home would be a public authority for the purposes of the Human Rights Act 1998, where it provided accommodation pursuant to arrangements made by a local authority under National Assistance Act 1948, ss21 and 26.

On 20 June, the House of Lords delivered its decision ([2007] UKHL 27) ((2007) 151 SJ 782, 22.06.07) in a further appeal in the Birmingham case. By a bare majority, it held that Southern Cross was not a public authority for this purpose.

The reasoning of the majority was encapsulated by Lord Neuberger in a number of factors he identified (but did not rank in order of importance), at [160]:

• The activities of Southern Cross in providing care and accommodation for YL would not be susceptible to judicial review;
• YL would not, he considered, be treated by the Strasbourg court as having Convention rights against Southern Cross, and she retained her Convention rights against Birmingham;
• Southern Cross's functions with regard to the provision of care and accommodation would not be regarded as 'governmental' in nature, at least in the UK;
• In relation to its business, a care home proprietor such as Southern Cross had no special statutory powers in relation to those it provided with care and accommodation, or otherwise;
• Neither the care home nor any aspect of its operation, as opposed to the cost of the care and accommodation provided to YL and others in her situation, was funded by Birmingham; and
• The rights and liabilities between Southern Cross and YL arose under a private law contract.

The decision is significant generally because it provides a reference point from which the human rights liability of other partners of local authorities can be tested.

For the present, the decision clearly restricts the scope of the Human Rights Act, though given the narrowness of the majority in the House of Lords, the high level of contention raised by the decision and the support given by central government in the case to the arguments put forward by YL, it would be wrong to consider that this represents the last word on the subject.

Meanwhile, local authorities are free to (and sometimes do) require terms in their agreements with third party providers which guarantee compliance with the human rights of service providers, thereby creating a contractual solution rather than one imposed by the courts and Parliament.

Negligence liability and human rights

In Lawrence v Pembrokeshire CC ([2007] EWCA Civ 446), the Court of Appeal upheld the decision of the High Court ([2006] EWHC 1029 (QB), 'Local Government Update', ((2007) 151 SJ 732, 09.06.06) that, despite the application of the Human Rights Act, no duty of care in negligence was owed by social workers to the parent of a child who was the subject of a child protection investigation.

The decision of the House of Lords in D v East Berkshire Community NHS Trust [2005] UKHL 23; [2005] 2 AC 373, in relation to a case in which no claim under the Human Rights Act had arisen, accordingly remained true in holding that, for policy reasons, there was no such duty. Those policy reasons were that child care professionals owed a duty to the child, and should not be placed in the position of owing a potentially conflicting duty to the parent.

The Court of Appeal held that the 'small incremental step' in the development of the common law proposed by L would be a step too far. The public interest in effective and fair investigation and prevention of criminal behaviour resulted in the common law protecting suspects from allegations made maliciously or in bad faith, but not from a well-intentioned but negligent mistake. The distinction was based on the need to provide protection, to those who were required to enforce the law, against the imposition of a duty in negligence that could or might tend to inhibit them. The proposed development would therefore fundamentally distort the law of negligence, putting at risk the protection for children which it provided in its present form. Although Article 8 operated in a wholly different manner from the law of negligence, engaging liability without reference to a duty of care, the former nonetheless complemented the latter in facilitating a similar protection through the mechanism for justification under Article 8(2). Accordingly, the common law did not need to be changed simply because there was a discrete Convention remedy under the Human Rights Act.