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When it comes to the lawfulness of a decision by councillors and the concepts of bias and predetermination, it is worth remembering that the members code of conduct is merely a guide and neither the start nor end point. It is an attempt to codify the law, not a replacement for it, and, given its nature, is not and never would be the best way to apply or explain the law.
In this arena, the code’s purpose is to act as a guide on these matters, not as a determinant, and is a means to bring about some personal consequences for the councillor when their bias causes a decision to be at risk or even vitiated on challenge.
This is emphasised in the LGA Guidance on its Model Code of Conduct. The Guidance allowed the authors to give the Code that greater depth of meaning which needs to be explained further. They also kindly invited several colleagues to comment and assist in this and to make best use of the greater latitude for discussion and explanation in the Guidance which the Code itself does not.
The comments in the Guidance on the LGA Code is a polite version of the phrase I have often used in training on this, which is that, as the monitoring officer and the authority’s lawyer, we essentially do not care about the Code or the councillor, we care only about the soundness of the decision; that wakes people up.
This is all exemplified in the recent case of CPRE (Somerset), R (On the Application Of) v South Somerset District Council [2022] EWHC 2817 (Admin), which brought this point to bear for those involved.
This was part of the debate on what a code of conduct should include following the introduction of the Localism Act 2012. Some believed an authority’s code should not include any element on this area at all, the argument being that anything beyond the basic legislative requirements, including the (updated) Nolan principles, would confuse Members and fellow officers and that it would be better to leave this to the developing law on bias and decision making as a matter of corporate governance. I disagree with that view as much now as I did then. The Code maybe a little simplistic, containing as it does none of the layers of subtlety available on the application of the concept in Porter v Magill, but it remains true to its purpose: a way of understanding that law, applying it, and with real consequences for the individual for which there may be otherwise none (or for which they don’t care anyway in the political circumstance), a way of making the law understandable as a training tool to be carried around in the heads of councillors and officers and, not least, a way of applying that law in time pressured circumstance.
The comments in this case are somewhat harsh about the LGA Model Code, doing so partly because they make a direct link that isn’t there. This is, I believe, somewhat unfair. What this does do, however, is remind the LGA of their commitment to review their Code every year and improve it and, as a product that must always pay some heed to political and philosophical compromise over direct explanation, it can always be improved.
Philip McCourt | Legal Director for Bevan Brittan
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