ETHICAL STANDARDS & COMMUNITY GOVERNANCE[1]

 

Aristotle wrote:-

 

"Ethical leadership must come first from those in public office. Such people exercise a teaching function. Among other things we see what they do and think that is how we should act. Unfortunately, when they do things that are underhanded or dishonest that teaches us too."

 

 

A       INTRODUCTION

 

The purpose of this article is to highlight some of the risks and possible solutions, from an ethical standards perspective, on the current debate relating to community governance - or, to put it another way, "double devolution" - and its interplay with ethical governance so that the Government can build in good ethical consideration into double devolution.  Good governance, of course, makes good ethical and business sense and must be at the forefront of those in power – whether at the national or at the local levels.

 

Birmingham City Council has been at the forefront, since April 2003, in terms of devolving executive powers and local services to District Committees.  The author has assisted and supported the City Council to develop its constitutional arrangements and ethical governance agendas to ensure successful devolution to the one million citizens of Birmingham. This article is, therefore, based on practical hands on experience of making real the concepts of devolution.

 

 

B       A HOLISTIC APPROACH

 

This section sets out some relevant context/ background to devolution. The adoption of clear rules, transparent procedures, and effective sanctions is, as concluded by the Steering Committee for Local and Regional Democracy (CDLR), in 2002, the only way of eradicating behaviour which is openly condemned by the public as unacceptable on moral grounds. 

 

The Independent Commission on Good Governance in Public Services (supported by OPM, CIPFA and the Rowntree Foundation Jan 2005) on Good Governance Standard in Public Services has also emphasised that "Good governance leads to good management, good performance, good stewardship of public money, good public engagement and, ultimately, good outcomes."

 

On 19th January 2005, The Committee of Standards in Public Life (Graham Committee) - 10th Inquiry Report “Getting the balance right: Implementing standards of conduct in public life” - also concluded that:

 

·              "Despite incidences of corruption and misbehaviour, the vast majority of councillors and officers observe high standards of conduct"; and

·              "The ethical standards framework for local government is arguably the most extensive and comprehensive statutory framework for standards of conduct of any group of public office-holders".

 

The Independent Commission also concluded that "the Governors" – people responsible for governance – need to provide leadership, direction and control of the organisations they serve. Their responsibility is, therefore, to ensure that they address the purpose and objectives of these organisations and that they work in the public interest. They also have to bring about positive outcomes for the people who use the services, as well as providing good value for the taxpayers who fund these services.  They have, to put it simply, to establish good ethical and corporate governance within local government and influence others that it works in partnership with or through.

 

 

C.      THE BIRMINGHAM EXPERIENCE

 

The author, as the Corporate Constitutional Lawyer in Birmingham City Council, has, therefore, been instrumental through out this period in ensuring that the City Council's Corporate and Ethical Governance arrangements, with regard to devolution, are not only effective and efficient, but are "fit for purpose" at the ground level and actually help to achieve the devolution of real executive powers from the "centre" to localities and neighbourhoods. 

 

Constitutionally speaking, the appropriate systems and processes put in place have stood the test of time and appear to be working effectively and efficiently.  It is clear that in order for them to work effectively and efficiently, relevant backbench Elected Members have been at the forefront of delivering the same - with appropriate devolved funding to make real the use of executive powers -  at the local level, with appropriate advice and assistance from officers, the author and his lawyers / committee managers.   

 

Devolving real power is not, therefore, an illusion, but real in Birmingham.  It has never, however, been easy and depends upon the capacity of local authority leaders and partner stakeholders to let go and to encourage backbench elected members to deliver on the same.  When "new" fora are created, "new" citizens coming into such arrangements will obviously feel some unease, initially, but will develop rapidly into their competency / confidence levels. The key to success is how to ensure ethical governance is built into the community governance agenda - at the start - and not as an "add on" to emerging problems or power shifts at the local level.

 

The exercise of local power - with the active engagement and participation of citizens and local organisations in the decision-making processes of the City Council - also has the benefit of helping to engender trust and confidence in local government.    No one says it is easy or that citizens always get what they want as achieving real power by and for citizens has to be subject to necessary legal and constitutional arrangements of the Council and local government, in general.   

 

An interested citizen's desire, therefore, for "all" aspects of real power have, quite legitimately, to be "constrained" in terms of what is achievable under the current legislation and what is not.  What is achievable will also be a factor in terms of the funding available to the members, locally, to deliver on the perceived needs of the locality.   Each locality's needs will, of course, be different across the City.   Clearly, where there are power shifts there will be tensions in the piece and matching citizen expectations and perceptions of power will differ from the real / actual power given to Elected Members and Officers.

 

 

D       LOCAL STRATEGIC PARTNERSHIPS AND OTHER FORA

 

An example in point, relates to local (and City wide) strategic partnerships, which contain Elected Members for a particular Parliamentary Constituency (or District) and relevant stakeholders in the locality.  Some of these stakeholders tend to be the "usual suspects" and include established / vociferous pressure groups, communities of interests and new / emerging interest groups.  One of the keys to local government success in devolution terms has, therefore, to be about ensuring that there is engagement of citizens, as a whole, and not just with or by the vociferous activists / pressure groups. 

 

The role of the Elected Member at the local level then becomes an important community leadership role in ensuring that the right level of skills and abilities - including personalities - are around the table to "agree" and drive any "agreed" local agendas.  Hard to reach groups / interests have also to be nurtured by members and officers with a view to encouraging capacity and capability in the locality and to ensure appropriate engagement with the democratic processes.   It must, of course, be recognised and accepted that "some" citizens / organisations will not always want to engage with – or for all the time – the local authority, quite rightly, but will continue to expect good quality services to be delivered to them.  Others will, of course, want to maximise funds (and power) for their own - as opposed to the public - good.

 

From a legal perspective, local strategic partnerships are, of course, not separate legal entities, but unincorporated bodies consisting of elected / nominated representatives and other various interests and community / voluntary groups.  Save for Elected Members, who will be governed by the Code of Conduct for Members, the other "interests" groups may - or may not - be fortunate in having a range of ethical and corporate standards that they will be used to in terms of their existing practices to ensure good governance.  

 

In the local strategic partnership, therefore, there may be many who will not have the benefit of the same and, as such, they are likely to come with the notion of private interest gains maximisation strategies instead of notions of doing their best in the interests of the public and what they must do if they have private interests that may conflict with the wider public good.  This exotic "inter-mix" will have to be carefully chaired and monitored to ensure proper, legal, ethical and corporate standards are maintained or developed to achieve common objectives that serve the wider public good.

 

Other examples, at the local level, will include area committees, area fora, community safety panels, neighbourhood committees, inter-faith groups and neighbourhood forums.  The role of the Elected Member in such bodies will be around making sense of the whole of the local landscape, seeing what works best, what needs to be in place and steering (not rowing) such bodies to ensure responsiveness to local needs.  Disbanding dysfunctional bodies - although difficult - must also be done if active citizenship is to become a public goal and if "new" citizens / bodies are to be encouraged to participate in local governance. 

 

Encouraging people to participate and passing real power / budgets and control - within relevant legal and constitutional - perimeters should, hopefully, encourage innovation and creativity.  However, abdication of control - or no control safeguards - to such people may stifle innovation and creativity and may increase the risk of dysfunctional behaviour and, possibly, corrupt practices if appropriate ethical and corporate safeguards are not built in.  

 

 

E       WORKING TOGETHER IN THE EXOTIC MIX

 

The Elected Member in that exotic mix will, of course, be the only persons with any democratically elected mandate or legitimacy to represent / speak for the local people, as a whole.  They are, therefore, rightly looked upon and expected to take a lead on community leadership issues.  Elected Members are, of course, subject to the Ten General Principles (flowing from the Nolan principles) and, in particular, the Code of Conduct for Elected Members. 

 

The position with regard to other members of the local strategic partnership will, however, be quite varied and seldom will they be the subject of strict codes of practice governing their ethical standards, conduct and behaviour or "overlooked" by the Standards Board for England / Adjudication Panel for England. 

 

A mutual understanding or, preferably, a formal level of "standardisation" of ethical and community governance will, therefore, assist and must be put in place – led by elected members - so as to ensure ethical and corporate governance standards, conduct and behaviour are met within such partnerships.  The bear minimum would, invariably, revolve around the Code of Conduct for Members, but may not be as each local strategic partnership, neighbourhood forum etc. will have to choose to sign up to relevant good governance arrangements.

 

Some non-Elected Members will find the application of such ethical and corporate standards alien to their existing organisations and there will, invariably, be some resistance in the piece and a questioning / challenging of the need for the application of such standards to them. 

 

Others may, of course, "accept" without fully understanding the implications.  Elected Members and Officers will have to ensure, therefore, that appropriate advice and assistance (including training, if required) is given in relation to such matters, so that the local agendas for the public good can move forward.  What matters is what will work for a particular organisation as opposed to a standard set of values across all of the various bodies; although it would be most beneficial to society if there were a consistent set of good governance arrangements and ethical standards and conduct.

 

 

F        LIMITATIONS ON MUTUAL STANDARDS

 

One has to recognise that even if the non-Elected Members "accept" local codes for good governance, they will not be subject to the "independent scrutiny" provided by the Standards Board of England and the Adjudication Panel for England, as such bodies do not, currently, have jurisdiction over non-Elected Members.  Whether these national bodies should have their jurisdictions extended will be a matter for government, in due course. A lot will, of course, depend upon whether "local bodies" established to deliver on the "double devolution" agenda by the Government actually deliver successful change within ethical standards or whether they become hampered by ethical and local community governance issues which undermine the delivery of the "double devolution" objectives. 

 

Bad cases will, no doubt, make bad law and the best solution is to ensure that appropriate ethical and corporate governance standards are built into the double devolution processes before there is a need to police such standards in organisations that have become dysfunctional or are beginning to show early signs of dysfunctional behaviour and conduct. 

 

 

F        WILL MONEY BE AT THE ROOT OF THE PROBLEM?

 

When one considers the colossal amounts of funds that might be spearheaded into front line "double devolution" organisations (which might not have the ‘accountable body’ status of local authorities) could lead to difficulties in terms of private / individual gain maximisation at the expense of the public good.  Such citizens / bodies will, of course, not be subject to the independent scrutiny of the Standards Board for England and the Adjudication Panel for England if they are not Elected Members, or even worse, the Elected Members are dealt with, but not others! 

 

The Government must, therefore, think long and hard about "double devolution" - if substantial resources are to be ploughed directly into localities without the appropriate and necessary safeguards and interventions of locally elected bodies / members.  Local authority members as the directly elected representatives for the area, along with appropriate codes of conduct for Members and Officers, represent the most accountable and responsible protection to Government and the public, as a whole, against unacceptable ethical conduct and behaviour. 

 

The powers of the District Auditor will also need to be carefully considered with regard to any direct "double devolution" to non-elected organisations.  A failure to recognise this will undermine the legitimate role of Elected Members and local government, in general, and is likely to lead to local power vacuums/struggles.   This risk will, therefore, need to be effectively managed if unelected / unrepresentative pressure groups and interests are to be given control over huge "double devolution" resources at the local level.   Furthermore, if the public is to truly hold local authorities to account under double devolution - instead of through inspection regimes - who will control the public?

 

It is clear that local government continues to undergo substantial change in service provision, structures, functions, form, resources and powers. All these issues bring to the fore corporate governance and ethical framework issues. All, also, have the potential to harm the reputation of local government, individually and collectively, if not handled carefully, as more and more local authorities are working through and with external public / private / voluntary and community partnerships.

 

Good ethics and community leadership are, therefore, of immense importance in that bigger picture of local governance, as elected members find themselves more and more in prime roles / positions to further ethics and corporate governance through the various public / private / voluntary and community partnerships that they find themselves operating in.

 

 

H       ROLE OF STATUTORY OFFICERS & CONCLUDING REMARKS

 

Monitoring Officers, Standards Committees and other Statutory Officers are, of course, important promoters and guardians of high ethical standards and behaviour in local government and associated partnerships, as they can assist elected members to deliver on that community leadership agenda and engender trust & confidence in local democracy.

 

I am also satisfied that there is a great positive role that Elected Members can play in steering and driving the agenda for improvements of local communities under "double devolution" as they have the legitimate democratic credibility, expectation and experience to deliver on the same.  The Government must, however, think carefully before it devolves substantial amounts of money to non-elected and unrepresentative pressure groups or bodies that may, over time, become uncontrollable in the ethical and corporate governance sense.  It is far better to think now, instead of worrying when things go wrong!

 

The current debate on "double devolution" must, therefore, be enriched with a debate on ethical standards and community governance.   It is hoped this article acts as a catalyst to broaden that debate as the risks of failure for government will be high unless "double devolution" is seen to - and made to - work by Elected Members and Officers for the benefit of citizens.  The exclusion of Elected Members from that important role will only hamper open and transparent governance at the local level and is likely to hamper the delivery of a successful outcome to "double devolution".

 

April 2006

 

 

 

 

 

 

 

 

                                                               



[1] Mirza Ahmad, Chief Legal Officer for Birmingham City Council, Chairman of the Bar Association for Local Government & the Public Service and Lead Officer (Ethical Governance) for the Association of Council Secretaries & Solicitors.