A Code for the Future


In this letter Public Concern at Work responds to the consultation on the efficiency of the Code of Conduct for members insofar as it focuses on the whistleblowing provisions of the Code and so addresses the issues in questions 5, 6, 12, 14 and 15. We are grateful to the Standards Board for England for allowing us additional time to consider our response.

As a starting point, we believe that the underlying purpose of the Code is to support and facilitate democratic accountability and public confidence in local government. For this reason, we regret the lack of emphasis in the consultation on democratic accountability of members. While procedures also have an important role to play, they can turn into things of increasing complexity when they are revised and reworked in the light of practice.

In respect of whistleblowing, the paper sets out concerns that the existing duty on elected members to raise concerns about breaches of the Code has resulted in a number of problems:

  • Some members may be discouraged from using their judgement as to when and how to raise a concern;
  • Some members seem to report trivial matter and those that have been resolved locally;
  • Some members seem to report for malicious, party-political or petty personal concerns; and
  • Some members say it requires of them a level of vigilance over their colleagues’ public and private lives that can undermine trust.

In our view, these problems are exacerbated, if not caused, by the fact that it is a duty as this allows those members to assert that they had to make the report. Rather than try to redefine the circumstances in which the duty operates, we think it would be better to recognise the extent to which these problems are inherent in it being a duty and to move to a situation where members are empowered and encouraged to raise their concerns about breaches or other wrongdoing. If it does become clear at a later date that a member was aware of wrongdoing and did nothing about it, then this member will have to justify their actions to his or her colleagues and to their constituents when they face re-election.

The principles of the Public Interest Disclosure Act (PIDA) – which closely reflect the common law approach - provide an effective guide to how concerns can be raised responsibly and in the public interest. This approach has been endorsed by Parliament, regulators and the Committee on Standards in Public Life and is applied by Councils to their own workforce.

This is not to say that members should have the same protection PIDA affords workers of bringing claims for financial compensation in employment tribunals. We think it remains correct that PIDA does not apply to members as:

  • unlike workers, democratic accountability is the means by which members are selected, removed and held to account;
  • neither in law nor in practice are members in an employment relationship; and
  • as they are not waged, members can not be victimised financially in the same way as a worker.

The financial remedies aside, PIDA does provide a sound base for addressing this issue. Its disclosure regime can be adapted to indicate to members in what circumstances they should raise a concern and how that concern should be raised. It is this disclosure regime that we suggest be adopted by the Code as a means to properly underpin and balance the public interest.

In practice this would mean a member could properly raise a concern about wrongdoing with their authority’s Monitoring Officer or Standards Committee or with relevant regulators (such as the Standards Board and the Audit Commission). As set out in PIDA, if a member chooses to make a wider disclosure, then considerations of reasonableness should also apply. If a member is held to have raised a false concern maliciously, then this would put them in breach of the Code. Equally, only if a member is held to have breached these provisions should any issue of a breach of confidentiality (as currently addressed by paragraph 3 of the Paper) arise.

Approached this way, members can also properly raise concerns not only about breaches of the Code by members, but other wrongdoing by officials. While PIDA s.43B provides a practical guide to types of wrongdoing, there is a case in the light of the public interest in democratic accountability, to also provide a ‘just cause’ catch all provided in the law of confidence.

The safeguards the Code should properly provide are that (a) the making such a disclosure should be authorised under the Code and (b) victimising another member who has made such a disclosure should be a breach of the Code.

In our view, not only is this more practical, but (a) it has a much greater chance of successfully addressing the problems identified in the consultation paper and (b) as it recognises democratic accountability and public confidence, it will foster a more pragmatic and mature approach to these issues in future.

We believe that this simple, practical approach will help to ensure probity in local government and strengthen democratic accountability.