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The issue of managing poor behaviour by Councillors remains a significant and ongoing issue for monitoring officers. The failings of the current code of conduct resume are well-known and require no rehearsal. The absence of effective sanctions means that members frequently regard the whole process is futile and not something they should necessarily worry about, this brings about poor behaviour in some authorities with a monitoring officer in a very difficult position when they are seen by colleague officers as failing to address that which is regarded as unacceptable.
There is no silver bullet.
However it is worthwhile bearing in mind a couple of things.
First of all, in any complaint where the issue of freedom of expression arises, the courts have made it very clear that article 10 gives considerable freedom to members to express what at times may be seen as controversial, rude or even abusive views. But as article 10 expressly provides, such freedoms are subject to conditions as prescribed by law so where officers are criticised, whilst ccriticism is allowed and justified (within certain constraints), any process prescribed by a council as to how members should raise criticism about officers must be followed.
Bullying brings issues in terms of having sufficient evidence to justify a finding of breach, let alone an effective sanction.
But do bear in mind that such matters can often arise through breaches of other provisions of the code whether disrepute, disrespect, breaches of confidentiality or whatever the facts support. Do consider the other provisions in the code as an alternative.
Also bear in mind other legislative provisions such as those in the Local Government Act 1972 relating to qualification and disqualification.
Whistleblowing has been seen by some as a helpful route to follow, but given the Ledbury Town Council case in 2018, you cannot work outside the statue regime put in place by the Localism Act 2011. It might enable a Code complaint to be submitted by officers following an anonymous whistleblowing complaint in order to allow the matter to be properly investigated.
The nuclear options of working with party groups and their disciplinary procedures is available but must be approached with very great care. It is also not a substitute for the monitoring officer doing their job. But in very limited circumstances and approached with such a very great care, it is something to be born in mind.
If a pattern of behaviour starts to emerge, take a good hard look at the existing constitutional arrangements in place, and whether or not the existing officer member protocol for example or other guidance/ rules are strong enough and whether the "line in the sand" is clear. It may not satisfy the complainant to hear that their complaint cannot be progressed, but understanding that the pattern of behaviour needs to be stopped and providing a basis for tackling it in future may at least go someway towards addressing the overall issue.
So use the code. There are other routes but beware of Ledbury. Look at ways of using other provisions of the code. Be aware of group / party disciplinary procedures that may be available, but the risks are high. Outsiders can help although again this is not a panacea for all evils.
The bottom line is simply this: there is unfortunately no immediate and obvious solution to this. We must keep lobbying government to put in place an adequate standards regime so that such issues can be properly and robust addressed & most importantly, that serious breaches come with genuine and serious sanctions.
Mark Heath
Consultant
Veale Wasbrough Vizards LLP
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