Examination of Witnesses (Questions 161-179)
17 JANUARY 2005
SIR ANTHONY
HOLLAND, MR
DAVID PRINCE
AND MR
PAUL HOEY
Q161 Mr Betts: Your start was hardly
a glorious success, was it, if you look at the targets that you
were set or set yourselves and your achievements? To pick one
out, for the percentage of cases referred to investigation that
were completed within six months, the target was 90% and performance
was 38%. Why is that?
Sir Anthony Holland: That is a
perfectly fair comment, but I think it is right that I should
give an explanation as to the background. We were set up in March
2001. It was a completely new process, dealing with the integrity
of politicians. That demanded, in my view, a very careful approach.
I was a lawyer in the past, and the one thing I wanted to avoid
at all costs was a judicial review that attacked the process that
we went about investigating complaints that we received and the
eventual outcome of complaints. The over-arching demand I made
therefore of the staff was that they should do nothing that could
in any way be challenged at judicial review. To the extent that
we have never been successfully challenged at judicial review,
I think that is a great success. The second thing of course was
that the legislation was flawed in two respects. The first was
that we had not been given the power to delegate complaints when
they came in, so the Board was forced to meet every week for something
like 18 months to look at every single complaint that came in
to decide whether or not it should be referred. That in itself
slowed things down because unfortunately referrals had to go through
a certain process, and it had to be passed to the Board for it
to make its weekly meeting decision in that context. The third
aspect was that because we were starting from scratch, there was
no precedent for this kind of body. We had to recruit people who
had the ability to do a certain number of quite key tasks. One
was to investigate and the second was to make a decision as to
whether or not that should be taken further; and the third was
to do it on the basis of best legal advice. Unfortunately, we
have been located in London, and the consequence of that was that
it meant we had to recruit people, with great difficulty on our
part given the salaries we could offer. Therefore, our recruitment
process took far, far longer than we ever anticipated, and indeed
we only got up to full strength last July. We had difficulty in
recruiting the ethical standards officers, ESOs, to begin with,
because we could not offer sufficient money. We had difficulty
recruiting a full legal team because we did not have the ability
to compete with the salaries that lawyers can attract in London.
All those together made it very difficult for us to operate at
full strength from the word "go". There was a final
problem. We had no real idea of what kind of complaints we were
going to get, whether they would be serious complaints coming
in from the heavier authorities, the county councils, or whether
they would be the less serious but nevertheless complaints that
came in from parish councils. There are 8,900 parish councils,
but nobody knew that until we compiled the first list. The volume
of complaints was what we expected, or very nearly, but the kind
of complaint meant that the investigation process was far more
complex than anticipated. Why was that? It was because when you
get complaints from parish councils they are nothing like as easy
to investigate as they are if they come from county councils,
which have resources available to individual councillors. Parish
council investigations can be quite tricky and quite personalised,
and very often involve basically neighbourhood disputes. That
is an explanation, and it is the best I can do in all the circumstances.
Q162 Mr Betts: Are you now on track to
get rid of the backlog by April 2005, and to hit the six-month
target?
Sir Anthony Holland: Yes, we are.
Q163 Mr Betts: Have the new regulations,
which now allow reference by one of your ethical standards officers
to local authority level, speeded up the process?
Sir Anthony Holland: It has to
some extent so far, but it is early days. The first tranche of
regulations came in in June 2003, which allowed us to refer investigations
which are concluded for determination of the sanction to the local
standards committee. The second tranche only came in in November,
and we have only had 25 to 30 cases go back in that context. It
is early days to talk about that, but as far as we are concerned,
we are anticipating within six months referring probably a third
of the cases back for local investigation. If I could just break
off there, there is a serious issue about how the second cause
of the delay led to our problems. It cannot necessarily be laid
at the door of anyone in particular. I do not want to get too
technical, but a monitoring officer was being asked to do a number
of tasks, and the way the legislation was drafted meant that there
was a conflict between those various tasks. To ask a monitoring
office one minute to be advising a councillor, and the next to
be clerking a committee that is investigating a councillor, and
at the same time also having to advise a local authority—those
are fundamental conflicts, and it took a long time for those conflicts
to be ironed out with lawyers in the ODPM's office. That is what
caused the delay.
Q164 Mr Betts: Is the case management
system now working and useful?
Sir Anthony Holland: It is up
and running, and running very well.
Q165 Christine Russell: Can I ask you
about the type of complaints, because I understand that you consider
only about one in three are worthy of serious investigation because
the others are either trivial, malicious or vexatious, and what
you are doing to reduce the number of those.
Sir Anthony Holland: When we first
started, because as a board we were looking at every complaint
that came in, we were very cautious, and we started off referring
46% in the first few months, which was an awful lot; but we did
not know how to evaluate those things. I had a number of politicians
on the Board, and there were lay people; and they all had different
judgmental standards. However, we eventually agreed amongst ourselves
that we were being too careful and referring too many complaints,
because, plainly, some were, particularly at parish level, effectively
neighbourhood disputes. Those of you who come from a rural community
will know what a viper's nest that can be in some cases. We actually
became quite strong-minded about it, and now it is down to 28%.
We now have a referrals unit and a clearer policy and it has gone
way, way down. There is no doubt that to begin with we were too
cautious and did refer too many complaints; but we had to err
on the side of caution because people felt that the particular
issues they were complaining about were crucial to them. Indeed,
we are now getting criticised for not referring enough. It is
a balancing judgment, and it is not an easy one.
Q166 Mr Sanders: Can I ask you about
elected members of authorities who make vexatious or malicious
complaints.
Sir Anthony Holland: Tit for tats!
Q167 Mr Sanders: Often against their
political rivals. Do you think any steps should be taken to penalise
those individuals?
Sir Anthony Holland: It is certainly
something I would like to think about in about a year's time.
We have managed to get rid of a lot of the tit-for-tat stuff and
have made it perfectly clear that we are not looking very favourably
upon tit-for-tat complaints, or political complaints to score
points off an opponent. If one had a situation a year from now
where that was still the case, the Board would look very carefully
at whether to change the policy.
Q168 Mr Sanders: You are serving notice.
Sir Anthony Holland: Yes. It cannot
go on. It really is a disgrace in some situations.
Q169 Sir Paul Beresford: Will it not
be a bit difficult to take that approach in the light of article
7, which says they have an obligation to report matters?
Sir Anthony Holland: That is a
judgment pulling us in the opposite direction. All that we are
about involves all the time a balancing exercise in terms of deciding
how best to offer a—
Q170 Sir Paul Beresford: What about the
customer? Clause 7 says he has got to do it, and you are going
to come in a year's time with advice that if he does not complain
too often you are going to jump on the back of his head.
Sir Anthony Holland: I have not
said we are going to; we are going to take it into consideration
in a year's time. The difference is that there are those complaints,
plainly, which are perfectly justifiable; but there are those
that, frankly, do raise an eyebrow. The skill in all this is making
a judgment. The more experienced our staff become, the more capable
they are of understanding the exercise, the better it becomes
from our point of view.
Q171 Sir Paul Beresford: Would clause
7—the Stasi clause, as I see it—be effective in stimulating
these sorts of complaints, the eyebrow-raising complaints?
Sir Anthony Holland: The figures
we have do not bear that out actually. We have had 1% of complaints
of that kind, of whistle-blowing. It is very unpopular, and I
make no bones about it. The only similarity I can think of is
that in the profession I came from originally, lawyers had to
do a similar thing. If you think a lawyer has been dishonest or
not acting properly, even within your own partnership, you must
say so.
Q172 Andrew Bennett: How often did they
do it?
Sir Anthony Holland: I cannot
answer that question, I am afraid, sir.
Q173 Mr Betts: It is suggested that the
written code of conduct encourages people to go out looking for
complaints and increases the number. Is that something that has
been said to you, and are you looking as part of the review at
revising the code of conduct in any way?
Sir Anthony Holland: The code
of conduct is under revision now, in the sense that we are consulting
about how it could be changed/revised/improved. That is a consultation
exercise we promised to do to the ODPM's office. The volume of
complaints has remained pretty static for the last nine months,
at around 300 a month. The numbers we have referred for investigation
have gone down steadily.
Mr Prince: The trend of complaints
that is noticeable over the three years is that those coming from
the public have risen, and the number of member-on-member complaints
has been falling, as indeed have the number of complaints coming
from the parishes. The Chair has mentioned the consultation on
the code, and we should be issuing a consultation document very
shortly. That will be very comprehensive. It will certainly address
section 7, and in fact it will address every section of the code.
It will give some headline analysis of the issues and problems
that are known to have arisen, and we shall ask some open questions
of all stakeholders as to how the code might be amended in the
future. It will be a very full exercise. It builds on the discussions
that we were able to have at our last annual assembly, when we
had the benefit of some 700 members of standards committees and
chairs of standards committees and monitoring officers with us
at Birmingham.
Q174 Andrew Bennett: On the figures you
have just quoted, when you talk about the general public, presumably
someone who is a candidate in the forthcoming election counts
as a member of the general public, but in local perception would
be one of the competing candidates.
Mr Prince: That is always a possibility.
I am talking about the trends from known elected members through
to members of the public who may or may not be candidates—and
obviously we have no means of knowing that.
Q175 Mr Cummings: The Committee has received
evidence suggesting that communications between the Standards
Board and town and parish councils relating to guidance on the
codes of practice are very poor. Do you accept this and do you
see room for improvement; and if so how could it be improved?
Sir Anthony Holland: There are
many things probably that on reflection might improve, but this
is one that I would not. When we first started I personally was
a bit surprised at the fact that parish councils were included
at all; but that was the law, and I therefore felt it my duty
to spend a good few months going round to all the county associations,
pretty well every county association, talking to them. We went
to talk to the National Association of Local Councils, which was
the national body of local county associations, and I found it
a very useful exercise. We put an awful lot of effort into the
parish council problem, and we were rewarded with the fact that
at all times the national association and those county associations
I had spoken to, as well as those that members of the Board had
spoken to, had all been very supportive and enthusiastic in some
cases. I did occasionally get worried about this. I thought, "how
could every county association be so supportive?" One evening
last summer I went to speak to a parish council in Northamptonshire.
What was interesting there was that I got a different feedback.
That parish council I suspect is typical of many, and it was not
enthusiastic. It did not like the declaration of interests provisions
and was opposed to the whole concept. All I can say to you is
that we have addressed pretty well every county association. We
have never had a complaint from the National Association that
there has been no contact or no reciprocity of communication,
but obviously we can always get that.
Mr Hoey: Every publication we
produce is sent to every parish council in the country, all 8,900.
Q176 Mr Cummings: I am sure that is a
move in the right direction. What are the particular challenges
that the Standards Board faces in communication with smaller councils?
Sir Anthony Holland: I have always
thought that the biggest challenge is in some areas like north
Cornwall, which I am particularly familiar with, where there are
69 parish councils. There is one monitoring officer and not a
very large number of backroom legal people in the council, I suspect.
They have to service 69 parish clerks, and the communication therefore
is somewhat stretched, and given their resources unfairly stretched
probably. We therefore have to do what we can by communicating
directly with the parish councils. I have addressed personally,
and other members of my staff, as well as the Board, have addressed
the Society of Local Council Clerks, that is clerks of the parish
councils and town councils. They have their conference every year
in Stratford-upon-Avon. We have put a lot of effort into parish
councils. That is not to say, however, that individual members
of a parish council do not get concerned because we do seem very
remote. We are based in London, and although the Board members
have been out and about and done an awful lot of visits, plainly
we have got to keep on doing it.
Q177 Christine Russell: I want to ask
you about disclosure. We have received evidence from people who
quite understandably feel they are worried that even where a member
is cleared of any wrongdoing whatsoever, the details appear on
your website.
Mr Prince: For some time afterwards
too.
Q178 Christine Russell: Are you looking
at that? Surely, members who have committed no offence at all
should not find themselves listed?
Sir Anthony Holland: The Board
is looking at that. We looked at it three or four board meetings
ago, and we are coming back to it during the course of 2005. There
are two aspects. I am not very happy about the fact that it remains
on the website for more than a year—it is currently two
years and it is far too long. Secondly, I am not very happy about
the detail that appears, so we are looking at it. It is a moving
target.
Q179 Christine Russell: Why do the details
remain on the website, even if the person has been totally cleared
of any charge? Why do you keep it on for years if that person
has not broken the code of conduct?
Mr Prince: We keep it there so
that the outcome of the case is known to all the parties. As Sir
Anthony said, this is something that we have talked about, and
the Board has identified this problem.
Sir Anthony Holland: There are
four possible results of an investigation: no breach at all; no
further action; reference back to a local standards committee;
and reference to the adjudication panel. Obviously the first two
will remain on the website. The first one, where there has been
no breach of the code at all—I personally have grave reservation
about what appears on the website—although the Board does
not share that view. The trickiest one is "no further action"
because without getting too technical, there is no way that a
person who has been found to be in breach of the code but there
is no further action that he or she can take can challenge that
except by judicial review. It is a lacuna. If they were going
to be taken elsewhere, then they could challenge the whole thing.
They have broken the code, but the only way they can challenge
that finding is by judicial review, and I think that is a bit
of an unhappy situation.
| 
