Pity the poor Local Authorities (Model Code of Conduct Order) 2007 – the 18-month-old toddler, currently scampering innocently around local and police authority floors, has been given a proposed sentence of death by the government.

A consultation to revise the code was issued on 1 October 2008 by the Department of Communities and Local Government (DCLG). The consultation closes on Christmas Eve – just in time to free Santa to focus on setting his sleigh’s satnav. The document is called Codes of conduct for local authority members and employees – A consultation, and can be found on the DCLG website (www.communities.gov.uk).

So why the change and why so quickly? The 2007 order only saw the light of day on 3 May 2007 and is still finding its feet. The origins of its downfall were probably sown by Mr Justice Collins in his judgment on the Code of Conduct allegations, arising out of the altercation between former Mayor of London Ken Livingstone and an Evening Standard journalist. In the view of Collins J, the phrase ‘or any other circumstance’ in the former 2001 Code of Conduct (where a member must not ‘in his official capacity, or any other circumstance, conduct himself in a manner which could reasonably be regarded as bringing his office or authority into disrepute’) must be construed narrowly so that it ‘…will not extend to conduct beyond that which is properly to be regarded as falling within the phrase "in performing his functions"’ (within section 52 of the Local Government Act 2000). In the absence of an appeal against this judgment, the government intended to address the position in the then-proposed Local Government and Public Involvement in Health Act.

However, the 2007 act only appeared on the scene on 30 October 2007 – some six months after the 2007 conduct order and after going through some Parliamentary turbulence on the member conduct ‘official capacity’ issue. This gave rise to some disconnect between the 2007 code and the new provisions in sections 50(4A) to (4B) of the Local Government Act 2000, inserted by section 183 of the 2007 act (although, at the time of writing, these have not yet been brought into force). These provisions require a statutory model code of conduct to indicate, in respect of each conduct, provision of the code, whether it applies to a person only when acting in an official capacity or whether it applies only when such a person is not acting in an official capacity (which is limited to criminal offences).

The 2007 code (which, as indicated, appeared before the 2007 act) was not framed in this way, restricting conduct caught outside official capacity to criminal offences related to specified code provisions: intimidation in relation to code of conduct investigation or proceedings; bringing office or authority into disrepute; and using position improperly to confer an advantage or disadvantage.

The consultation document therefore indicates that, since the member code has now been in place for more than a year, the government believes ‘this is an appropriate time to examine how well it has functioned in practice’ and to ‘consider any revisions that may be required’. The amendments proposed are expressed to reflect discussions with the Standards Board and its experience of the practical operation of the 2007 code over the last year. The document also takes the opportunity to remind key stakeholders about what the code is for and points out that, since trust in local authority members is one of the cornerstones of local democracy, they should inspire trust and confidence from those who elected them, setting an example of leadership for their communities. They should consequently be ‘expected to act lawfully, even when they are not acting in their role as members’. This, of course, conflicts with how Collins J saw things when giving judgment in Livingstone.

As the government points out in its current consultation, it has always been its intention for the code ���to apply to a limited extent to the conduct of members in a non-official capacity’.

So: ‘We wish now to clarify which provisions of the members’ code apply in a member’s official capacity and to put beyond doubt which provisions apply to a member’s conduct in a non-official capacity.’

Criminal offenceThe proposal, therefore, is that the new member code should, in the section covering the conduct of members in their non-official capacity, contain a provision prohibiting particular conduct where that would constitute a criminal offence: ‘Members must not bring their office or authority into disrepute by conduct which is a criminal offence.’

So what will a criminal offence be for these purposes? Since 31 January 2008, the government has had power under section 49(2C) of the Local Government Act 2000 to define both ‘criminal offence’ and ‘official capacity’. The first it proposes defining as ‘any criminal offence for which the member has been convicted in a criminal court, but for which the member does not have the opportunity of paying a fixed penalty instead of facing a criminal conviction’. This is intended to exclude the most minor criminal offences from the remit of the code, such as minor motoring and parking offences and cautions. The Standards Board is also expected to issue guidance in this area.

As to ‘official capacity’, this is proposed to be defined ‘as being engaged in the business of your authority, including the business of the office to which you are elected or appointed, or acting, claiming to act or giving the impression that you are acting as a representative of your authority’. This seems substantially similar to the definition in the present 2007 code.

But what about offences committed overseas? The government proposes that the code will only apply in these circumstances where a criminal offence and conviction abroad would have been a criminal offence if committed in the UK. The upshot of the above proposals is that the only conduct outside official capacity that will engage the code will be criminal offences as defined. And the conduct investigation would proceed only following the completion of the criminal process.

The government also proposes taking the opportunity of making some other amendments in the light of the operation of the present code. These include: the requirement to register a gift or hospitality estimated as at least £25 in value; to remove the double negative in paragraph 10(2) of the code, to make clear where a specified prejudicial interest exists; and that the new code would acknowledge existing registration of member interests. The underpinning ‘Principles of Public Life’ are also to be amended to make clear which apply to members in an official capacity and which otherwise apply.

Two-tier codeThe code of conduct regime has been an irritant to many members, which presumably accounts for its continuous evolution. A likely cause of this irritation is the unfairness felt by many councillors that, while they as elected members are subject to a mandatory code, their council employees are not. While the officer situation is of course rather different (in that employees are regulated by contracts of employment), there is a point here. So the government is proposing a two-tier model code – augmentable by authorities, if desired – to be incorporated into local government employees’ terms and conditions of contract. The first tier would apply equally to all local authority employees and would enshrine specified ‘core values’. The second (applying to ‘qualifying employees’ – either holders of politically restricted posts or those conducting delegated functions) would be subject to an additional set of role-appropriate values.

So the listing vessel that is the local government standards regime is to have a makeover before its relaunch. Standards committees, local government lawyers and others who support them will be awaiting with interest the sight of this refurbished ship when it eventually hits the water.

But they will only be able to have a say in its refit if they get their consultation response in by 24 December.

Great expectationsBack in July, renaissance man, jurisprudential philosopher and ‘public law physician’ Lord Justice Laws offered another kindly light to lead us amid the encircling and complex gloom of legitimate expectation. In updating his views of 22 November 2005 in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, he has written a prescription that should at least ease the symptoms until the next patient appears at his surgery with a related ailment. This was on 9 July 2008 in R (Bhatt Murphy (a firm) and others v Independent Assessor; R (Niazi and others) v Secretary of State for the Home Department [2008] EWCA Civ 755.

Space forbids detailed consideration of a necessarily tortuous path through a challenging labyrinth. However, Laws LJ identified two fundamental heads of legitimate expectation. The first is the paradigm case of procedural legitimate expectation, where a public authority has provided an unequivocal assurance that it will give notice or embark upon consultation before it changes an existing substantive policy.

The second is substantive legitimate expectation, which itself subdivides into two heads. The first head is where the policy constitutes a specific undertaking directed at a particular individual or group by which the relevant policy’s continuance is assured. The second head is the exceptional instance where a decision-maker will be required before effecting a policy change to afford those potentially affected an opportunity to comment on the proposed change and the reasons for it, even though there has been no previous promise or practice of notice or consultation. But for this to arise, the impact of the authority’s past conduct on potentially affected persons must be ‘pressing and focused’.

So, those seeking to argue the legitimacy of their expectation will have to tread a long and winding road if they are to have a hope of persuading a court to see things their way.