The new Model code of conduct for members came into force on 3 May and is to be adopted by 1 October. While much of it remains unchanged, there are some key new provisions of particular interest to members and monitoring officers. As well as applying to members acting in their official capacity, the code will now also apply to members at any time where their behaviour has led to a criminal conviction. Only certain provisions of the code have effect in these circumstances. These are the ones dealing with: l intimidation of complainants and others in relation to alleged breaches of the code l conduct giving rise to disrepute l improper use of a member's position to bestow an advantage or disadvantage on any person. It is important to note this provision cannot take effect until the Local Government Bill is enacted. It currently makes provision for the code to apply to conduct outside of the performance of members' functions and is intended to nullify the decision of Collins J in Livingstone v Adjudication Panel for England that the code could not be applied to behaviour which was not linked to a member's official functions. Until the law is changed, the current ambit of any code is set by that judgment. Members will now have a personal interest in any business where it relates to or is likely to affect: l an interest they must register l an interest that is not on the register, but where the wellbeing or financial position of members and other relevant persons is likely to be affected more than it would affect the majority of inhabitants of the ward or electoral division, or GLA constituency, affected by the decision – this is a relaxation from the previous position – or inhabitants of the authority's area – in all other cases. As regards the disclosure of personal interests, there is now an exemption where the interest arises from membership of, or a position of control or management on: l any other body to which the member is appointed or nominated by the authority l any other body exercising functions of a public nature. In these circumstances, provided the member does not have a prejudicial interest, he or she only need declare the interest if and when they speak on the matter. While the objective test of whether interests are prejudicial has not changed, members will not have a prejudicial interest where the business: l does not affect the financial position of members or other relevant persons or bodies l does not relate to regulatory functions – such as licensing or planning – affecting the member or other relevant persons or bodies. The code has introduced a new provision regarding participation. It now provides that a member with a prejudicial interest may attend before a committee but must withdraw from the room/chamber: l immediately after making representations, answering questions or giving evidence. However, the member can only make representations, etc, if the public are also allowed to attend the meeting for the same purpose, whether under a statutory right or otherwise l in any other case, when it is apparent that the relevant business is being considered, unless the Standards Committee has granted a dispensation. This will allow members to make representations, etc, whether on their own account or on behalf of their constituents, and changes the position from that set down in Richardson v North Yorkshire. Bullying is now prohibited. Members must not disclose confidential information except in a number of limited circumstances. The most contentious of these is the new dispensation as to disclosure where it is reasonable, in the public interest, in good faith and in compliance with the authority's reasonable requirements. What such ‘reasonable' requirements will be is up to particular authorities. The provisions regarding personal and prejudicial interests are to be welcomed, as they are likely to clarify and increase member participation. However, the code remains a complicated document, and one which will probably prove to be equally as challenging as its predecessor. w Owen Willcox is a solicitor at Lawrence Graham LLP, and James Findlay is a barrister. Their A-Z guide of good governance for councillors will be republished shortly
