This section sets out background information on communications in general for councillors, building on the code of conduct.
Key points
- It is important that councillors set out clearly in their communications whether it is sent in their councillor role or in a private capacity
- Confidential information should generally not be disclosed
- Bear in mind obligations under data protections rules
- Consider carefully forwarding or sharing third party communication, in case it could be affected by copyright rules or could be considered defamatory material
The conduct and activities of councillors is underpinned by the council’s code of conduct, which sets out the obligations placed upon councillors in their general communication with officers, colleagues and residents. Universally, there are the seven Nolan principles of conduct that applies to every holder of public office; whether a councillor, MP or appointee to a governmental body:
Selflessness – requirement to act solely in terms of the public interest and not do so in order to gain financial or other material benefits for themselves, their family or their friends.
Integrity – requirement not to place themselves under any financial or other obligation to outside individuals or organisations that might seek to influence them in the performance of their official duties.
Objectivity – choices in making public appointments, awarding contracts or recommending individuals for rewards of benefits should be made on merit.
Accountability – acceptance that accountability arises for their decisions and actions to the public include submission to whatever scrutiny is appropriate to their office.
Openness – decisions made should be as open as possible and reasons should be given with information only being restricted when the wider public interest clearly demands.
Honesty – there is a duty to disclose any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.
Leadership – these principles should be promoted and supported by leadership and example, acting in a way that secures or preserves public confidence.
Official role or private capacity
It is recommended that councillors are clear in their communications whether they are making contact in their official councillor role or in a private capacity. However, councillors should bear in mind that if communications are made public, even if they are sent in a private capacity, that the media and the wider general public may not make the distinction.
Confidential information
It is advisable that councillors consider when making a communication, whether by letter, email or social media, that it could be made public, even if it is marked ‘confidential’. Councillors generally should not disclose information provided to them in confidence, unless required to do so by law, or for the purpose of obtaining professional advice on basis the person providing the advice also agrees not to disclose. In exceptional circumstances, confidential information could be disclosed if it is in the public interest and the following four requirements are met:
- that the information disclosed, and any allegation contained in it, is substantially true.
- that it is in the public interest such as:
- a criminal offence is committed
- the council or some other person fails to comply with legal obligation
- a miscarriage of justice occurs
- the health or safety of an individual is in danger
- the environment is likely to be damaged
- there is deliberate concealment of any of the above matters.
- that the information is disclosed in good faith and not, for example, to achieve a party political advantage or to insult a political opponent
- That the person has adhered to the council’s policies concerning whistle-blowing or confidentiality, perhaps by disclosure to the monitoring officer.
Data protection
It is important that councillors bear in mind the Data Protection Act 1998 in handling any personal information received from the council, as disclosure or processing such data could be a criminal offence unless this is done as a member of the council or as a representative of a major political party. Councillors may need to notify the Information Commissioner’s Office if they use personal data for other purposes. There is a useful guide available at https://ico.org.uk/
Conflicts of interest/pre-determination
The disclosure of personal interests is required under the Localism Act 2011 and the detail is reflected in the council’s code of conduct. This can be important when engaging with residents in the decision making process. It can prove difficult for councillors when they are championing an issue for their residents and are then required to participate in the key decision-making when declarations of interests are necessary. Any communication made by a councillor expressing a view on such matters could prejudice their position but also that of the council under the pre-determination rules.
Procurement and commissioning
Similar considerations arise when councillors are approached by a potential contractor or provider of goods and services who is planning to tender for contracts with the council. It is important to take care so as to ensure no communication to residents is misinterpreted or to be compromised by a willingness to express a preference for one contractor. There are many challenges against procurement decisions and such pre-determination could invalidate the council decision.
Copyright
It is important to consider copyright in communications that involve sending a photograph or printed material, especially if the items were photographed or written by a third party.
Defamation
It is important that any communicator takes care in passing on any material received from a third party if such material could be considered defamatory, as they will be as liable for defamation as the original party.