ICSA Response. DCLG Codes of conduct for local authority members and employees A consultation

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1 ICSA Response DCLG Codes of conduct for local authority members and employees A consultation Submission Number: Date

2 INSTITUTE OF CHARTERED SECRETARIES & ADMINISTRATORS Response to the DCLG s Codes of Conduct for Local Authority Members and Employees A Consultation The Institute of Chartered Secretaries and Administrators (ICSA) is the professional body qualifying and supporting company secretaries and corporate administrators in all sectors of the economy. Members are educated in a range of topics including finance, HR, company law, administration and governance, which enable them to add value to any organisation. With some 10% of UK Members involved in the public sector, and a strong pedigree in developing and promulgating good governance, we believe we are well placed to provide knowledgeable feedback on this consultation subject. General comments In general, the Institute welcomes the DCLG s concept of a regulatory framework as it provides the means to strengthen the governance agenda in local government, clarifying expectations of employees and members and encourages public confidence in the sector. The Institute is delighted to be able to provide more specific comments on the consultation document in response to the questions it posed. ICSA would have welcomed further information in the code that specifically dealt with the implications of the code with regard to those organisations that enter into partnership with local authorities. In particular, it is important that there is a consistent approach regarding the conduct of all people engaged in partnership working (e.g. Local Area Agreements). It is our opinion that there is little effective guidance available on partnership working and general governance and accountability standards relating to these and therefore, it may be a missed opportunity that more detail was not provided in the consultation. Response to specific questions Q1. Do you agree that the members code should apply to a member s conduct when acting in their non-official capacity? In certain situations it may be appropriate for the code of conduct to apply to members when not acting in their official capacity. For example, where a criminal offence has been committed that reflects on the wider reputation of the local authority, in light of ongoing or recent campaigns (e.g. drink driving or littering if the authority is looking to reduce the prevalence of this behaviour) may warrant the use of the code in addition to any potential criminal sanctions. Q2. Do you agree with this definition of criminal offence for the purpose of the members code? If not, what other definition would you support, for instance should it include police cautions? Please give details. The definition of criminal offence does present a number of issues as some offences that can result in the perpetrator accepting a fixed penalty fine may still be viewed by the public at large as bringing the local authority into disrepute. This can be exacerbated where the authority is taking, or has taken, a particular stance on an aspect of illegal or anti-social behaviour. 1

3 People performing public duties and holding public responsibilities should be seen to be conducting themselves within the confines of legal behaviour as they represent their community and local authority and should not undertake illegal activities that would bring the authority into disrepute or undermine any campaigns it may be running to counter anti-social behaviour. Q3. Do you agree with this definition of official capacity for the purpose of the member s code? If not, what other definition would you support? Please give details. Yes, ICSA agrees with the definition of official capacity as defined in the draft code. Q4. Do you agree that the member s code should apply where a criminal offence and conviction abroad would have been a criminal offence if committed in the UK? In line with respecting the social mores and laws of a foreign country, as is expected of visitors to the UK, we would support the view that any action or behaviour that broke the laws of a host country should be deemed inappropriate and disrespectful. As such, even if a conviction abroad would not be an offence in the UK, it should still be considered under the Code. Q5. Do you agree that an ethical investigation should not proceed until the criminal process has been completed? Where there is no risk of prejudice to the criminal investigation, ICSA would support the undertaking of an ethical investigation before any criminal process has been completed. In some circumstances (e.g. allegations regarding the abuse of the young and vulnerable) it could be argued that it may be appropriate for a member to be suspended during the period of the criminal process. This could perhaps be left for the Standards Committee to determine in conjunction with the Monitoring Officer. Q6. Do you think that the amendments to the member s code suggested in this chapter are required? Are there any other drafting amendments which would be helpful? If so, please could you provide details of your suggested amendments? ICSA welcomes the amendments suggested as a way of clarifying and simplifying the conduct expected of those holding public office. Q7. Are there any aspects of conduct currently included in the member s code that are not required? If so, please could you specify which aspects and the reasons why you hold this view? No. 2

4 Q8. Are there any aspects of conduct in a member s official capacity not specified in the member s code that should be included? Please give details. No. Q9. Does the proposed timescale of two months, during which a member must give an undertaking to observe the member s code, starting from the date the authority adopts the code, provide members with sufficient time to undertake to observe the code? Due consideration must be given to the commencement of the undertaking, especially at those times of year traditionally associated with holidays that may mean that a member is hard to contact. Mechanisms must also be in place to ensure that any member out of the country or incapacitated is provided with extra time to commit to the code if they are unable to do so in the two month timeframe suggested. Such exceptions are probably best left as a matter for the Standards Committee to determine in conjunction with the Monitoring Officer. Q10. Do you agree with the addition of this new general principle, applied specifically to conduct in a member s non-official capacity? Members, as with the general public, should be required and expected to abide by the laws of the land. As such, it is not clear what benefit there is of adding this as a general principle given that there will be specific provision within the Code of Conduct. Q11. Do you agree with this broad definition of criminal offence for the purpose of the General Principles Order? Or do you consider that criminal offence should be defined differently? ICSA does not believe that the definition of criminal offence needs to be included in the General Principles Order. If it is, please refer to response to Q2 above. Q12. Do you agree with this definition of official capacity for the purpose of the General Principles Order? Yes, but ICSA does not believe that a definition of official capacity needs to be included in the General Principles Order. Q13. Do you agree that a mandatory model code of conduct for local government employees, which would be incorporated into employees terms and conditions of employment, is needed? The principle is accepted by ICSA. Some authorities have already adopted codes of conduct without this requirement being mandatory. It is only right that provisions are introduced to maintain the public s confidence in local government officers, where necessary. Care, however, should be taken to ensure that those provisions do not restrict the rights and abilities of employees to participate in aspects of society that affect them, if there is little chance of that 3

5 activity impacting on their professional responsibilities. For example a parent should not be prevented from expressing views about the closure of their child s school because they work for the authority, unless their work is directly involved in school organisation matters. Conversely, it could be argued that as the code for members is of a statutory nature a similar framework should apply for the enforcement of the employees code. Due consideration should also be given to the interaction of the code of conduct with any other codes or standards individual s may have to adhere by as a result of their professional qualifications and standing. It would be beneficial for the mandatory code to recognise the existence and professional standing of such counterparts. Q14. Should we apply the employees code to fire fighters, teachers, community support officers, and solicitors? If the intention is to have a 'minimum' standard code of conduct then it could be argued that there is no reason to exclude any category of public servant because they have an existing code in operation. Conversely, it may also be argued that any existing codes of conduct for different groups of employees go beyond the minimum standards proposed in the consultation document, and it would, therefore, be appropriate for some mechanism to be in place in order to ensure that the codes can be crossreferenced. For example, professional bodies such as accountants, health professionals, social workers and indeed, chartered secretaries will have their own codes of conduct to adhere by and as such their status should be recognised. The proposed code should be the baseline document on which different codes are modelled, but where alternatives represent a higher, yet reasonable standard they should be recognised and supported. Q15. Are there any other categories of employee in respect of whom it is not necessary to apply the code? Please refer to comments above. Q16. Does the employees code for all employees correctly reflect the core values that should be enshrined in the code? If not, what has been included that should be omitted, or what has been omitted that should be included? Yes. 4

6 Q17. Should the selection of qualifying employees be made on the basis of a political restriction style model or should qualifying employees be selected using the delegation model? It is ICSA s opinion that the selection of qualifying employees should be based on the delegation level as opposed to the political restriction method (which in many cases is solely based on salary points which is not necessarily related to levels of delegated decision-making). The criteria should reflect the level of delegated responsibility to each function taking account of the scope of contracts that function is responsible for the upper thresholds of any financial commitments. Q18. Should the code contain a requirement for qualifying employees to publicly register any interests? Whilst a standard list applicable to both members and officers would reduce the possibility for confusion, it should be countered that such a list is not exhaustive, and therefore flexible enough to enable other interests to be considered in time. Whilst no limitations would help to ensure that public confidence is maintained, this has to be balanced with the rights of the employee to participate in community activities. Therefore, ICSA believes that this provision should be limited to those interests and gifts that may have a bearing on the way in which the employee discharges their professional duties and responsibilities. ICSA does not believe that any register of interests for employees should be made available for public inspection, but to ensure that propriety is observed the scrutiny and monitoring officers should regularly review declarations against listed delegations. The register should however, be subject to the Freedom of Information Act where there is a strong argument in favour of the public s interest. Q19. Do the criteria of what should be registered contain any categories that should be omitted, or omit any categories that should be included? The register may also benefit from containing the interests of persons connected to the employee to provide a more comprehensive perspective of the potential joint purse and extended interests of employees. Q20. Does the section of the employees code which will apply to qualifying employees capture all pertinent aspects of the member s code? Have any been omitted? Yes, subject to comments previously made. 5

7 Q21. Does the section of the employees code which will apply to qualifying employees place too many restrictions on qualifying employees? Are there any sections of the code that are not necessary? The first three sub-headings may be more appropriately listed in the core values as it could be argued that these principles should apply to all public servants. This would have the advantage of simplifying the additional requirements for qualifying employees to register personal interests according to delegated responsibility. Q22. Should the employees code extend to employees of parish councils? The principle of an employees code should be extended to parish council employees, but in a manner that is proportionate and effective. 6

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