When “Not Illegal” Becomes Good Enough

Law as a Ceiling — or a Foundation?At a recent Council meeting on 25 March, a question was put to the Chair which goes to the heart of how this authority understands governance.
The question itself was straightforward — but the answer never came.
Not because it lacked clarity.
Not because it was submitted late.
But because it could be avoided.

The Question That Wasn’t Answered
​Five working days in advance, the following was submitted:
Does the Chair consider that relying on what is not expressly prohibited in law represents the ceiling of the Council’s governance standards?
If not, why proceed on that basis rather than aligning with recognised guidance and higher standards?
It referenced two clear areas:

• Scrutiny arrangements, where statutory guidance advised against certain outcomes
• Outside body appointments, where the concentration of allowance-bearing roles raises questions of perception and fairness

In both cases, the same justification appeared:
👉 “It is not prohibited in law.”

The Irony
The question itself was not addressed.
Instead, the response relied on rules permitting the Council not to answer under certain procedural conditions.
So we arrive at a position where:

• A question about minimum standards
• Was avoided using minimum rules

Legally permissible?
Yes.
Convincing as governance?
That is a different question entirely.

Law: Foundation or Ceiling?
This is the central issue.
There are two fundamentally different ways a public authority can operate:
1. Law as the Ceiling

• If it isn’t illegal, it is acceptable
• Guidance is optional
• Perception is secondary
• Compliance = success

2. Law as the Foundation

• Law sets the baseline — not the ambition
• Guidance informs decision-making
• Perception and public confidence matter
• Standards are something to reach for, not avoid

The distinction matters.
Because most governance frameworks in local government — including:

• Nolan Principles
• LGA guidance
• CIPFA / SOLACE frameworks

…are explicitly built on the second model.

What the Guidance Actually Says
Guidance is not law — that is true.
But it exists for a reason.
It reflects:

• Established best practice
• Lessons from past failures
• Expectations of transparency and fairness

To repeatedly fall back on:
“It is not expressly prohibited”
…is to treat guidance as optional — rather than as the intended standard of behaviour.

Why This Matters
This is not abstract.
It has real-world implications:

• Scrutiny loses credibility if structures technically comply but undermine independence
• Outside appointments lose trust if opportunities cluster among a few individuals
• Public confidence erodes when decisions meet the letter of the law but not its spirit

And perhaps most importantly:
👉 It creates a culture where the question becomes
“Can we do this?”
instead of
“Should we?”

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A Pattern, Not an Isolated Case
This is not a one-off.
Across multiple areas, a consistent approach is visible:

• Rely on legal permissibility
• Discount non-binding guidance
• Proceed where there is no explicit prohibition

Each individual decision may be defensible.
Taken together, they form a pattern.

The Unanswered Question Still Stands
So the original question remains — unanswered:
​​

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Is the law the ceiling of governance… or its foundation?
​
Because if the answer is:
👉 “The law is enough”
Then the public is entitled to ask:

What, exactly, are higher standards for?

How Grim Standards Look