Enforcing the councillors’ code of conduct
Uniquely in the UK, councillors in Northern Ireland can break their code of conduct without serious consequences. As the transfer of planning powers approaches, Peter Cheney considers how standards can be improved.
Northern Ireland’s councillors are the only politicians in the UK without a binding code of conduct but standards are due to get tighter as they prepare to take on planning powers. In contrast, the codes for MLAs, MPs, peers and MEPs can result in a series of penalties, up to suspension. Councillors in Scotland and Wales face disqualification as the ultimate option.
A voluntary code of conduct for councillors was adopted by the DoE in 1992 and updated in 2003, but is only a guidance document with no sanctions. Officials may have originally opted for a voluntary code to stop political disputes from escalating during the Troubles. In 2003, they decided to wait until the Assembly had revised its own code.
Councillors should show “respect and consideration” to council employees at all times, and be as open as possible about their decisions and actions. They should, for example, not obstruct members of the public who use the Freedom of Information Act.
Confidential information should not be used “for private purposes or personal gain.” A councillor should not “officially or otherwise” use their position to gain an advantage for themselves, a relative, a friend or a business associate.
The Local Government Act 1972 legally obliges councillors to declare any conflicts of interest (including a spouse’s interests) before the council considers a matter. The councillor must then leave the chamber, while any discussions take place.
Complaints can be taken to the council’s Chief Executive who can investigate and tell the councillor not to break the code again if found guilty.
Members of the public can also report maladministration by councils (which includes unfairness, bias or prejudice) to the Northern Ireland Ombudsman. The Ombudsman investigated 61 complaints against councils in 2010-2011.
In contrast to councillors, planning officers fall under a tight code of conduct which covers gifts, hospitality and private occupations. All planning officers must regularly complete a register of interests.
Reform plans
The UK-wide Committee on Standards in Public Life called for a mandatory code as far back as January 2005. Sinn Féin, the SDLP, the Alliance Party and NILGA backed that call. The DUP and UUP expressed no opinion but claimed that stricter checks and balances could be misused for party political or sectarian reasons.
After restoration, the DUP and Sinn Féin both endorsed the need for a mandatory code.
The last public consultation on local government reform was undertaken between November 2010 and March 2011. The voluntary code, it explained, is based on the seven principles of public life: selflessness; integrity; objectivity; accountability; openness; honesty; and leadership.
A new code would include these principles and four others, adopted by the Assembly in October 2009: respect; equality; good working relationships; and promoting good relations.
The DoE suggested that all complaints should be referred to the Northern Ireland Ombudsman, who would decide whether a case should be referred back to the relevant council for local resolution or whether his office should investigate it.
Councils would set up standards committees to hear cases and the department expected only “serious, complex or high profile” cases to reach the Ombudsman.
Those committees should have an independent chairman and other independent members. Functions, procedures and penalties for councillors would be set out in future legislation.
An independent monitoring officer would be appointed to each council, to carry out local investigations and to ensure that the council establishes a register of members’ interests and a register of gifts and hospitality.
A councillor punished by the committee could appeal that penalty to the Ombudsman and ultimately through the courts.
In addition, the code would cover “personal, financial and prejudicial” interests; lobbying and access to councillors; relations between councillors and council staff; and (importantly) dealing with planning applications.
Before taking up office, a councillor would be obliged to make a declaration that he or she will observe the code. At present, a councillor must only declare that he or she will be “guided” by the document. The Republic takes a similar approach. The code of conduct for councillors, issued in June 2004, is voluntary but councillors are also obliged to register their interests.
Scotland’s example
For comparison, the Scottish code makes clear that councillors “must never ask” for gifts or hospitality, and must not accept these from any individual or organisation waiting on a decision from the council, or seeking to do business (or continue to do business) with the council. The code also bans “repeated hospitality or repeated gifts from the same source.”
All Scottish local authorities publish their registers of interests online. The registers cover the period 12 months before a councillor takes office and must include all forms of remuneration, contracts with the council, and the ownership or tenancy of any property.
Councillors must make their own decisions on planning applications, based on the evidence before them. Those decisions must not be made by political groups, presumably to reduce the influence of developers.
Where a councillor is considering a planning decision, he or she must not give grounds to doubt their impartiality. This prohibits making public statements about a pending decision, indicating or implying support or opposition to a proposal, or declaring a voting intention before the relevant meeting.
The Standards Commission for Scotland held 14 hearings (involving 16 councillors) between 2008 and 2011, resulting in eight censures, seven suspensions and one disqualification, imposed for threatening planning officers. A similar code is in place in Wales.
Ironically, as Northern Ireland’s standards are being strengthened, the Coalition Government is cutting back on the rules governing councillors in England.
The Standards Board for England was established by Labour in 2001 to take complaints about councillors, and a model code of conduct was set down by Whitehall in 2007.
Between 2008 and 2010, the board found breaches in 315 cases and issued 109 censures. Forty-seven councillors were suspended after an investigation was completed, and another 26 were suspended pending action.
The board’s work was, not surprisingly, unpopular with councillors and it was abolished in March this year, along with the model code. Ministers claim that the Standards Board took power away from the electorate and was used for “vexatious or politically motivated complaints”.
Instead, English councils are now free to set their own voluntary codes of conduct and standards committees “should they so wish”. Councillors can be censured but not suspended or disqualified for breaking those codes.
This policy is remarkably similar to the status quo in Northern Ireland but English councillors will still be required to register and declare personal interests. The Government also plans to make ‘wilful failure to register and declare interests’ a criminal offence i.e. possibly the highest deterrent for any councillor seeking a corrupt gain.
