House of Commons - Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions

Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Seventh Report

4 Investigation and Enforcement

Local investigation and determination

24. The ethical framework established by the Local Government Act 2000 is unusually centralised. All allegations of breaches of Codes of Conduct have to be referred to the Standards Board directly with no opportunity for filtering out minor complaints at a local level.

25. Regulations which came into force in June 2003 enabled the Standards Board to refer completed investigations to local Standards Committees in some circumstances for determination. Further Regulations, which did not come into force until November 2004, enabled referrals for investigation to local monitoring officers. These arrangements meant that the local elements of the framework—local Standards Committees and monitoring officers—were effectively excluded from involvement in the consideration of complaints regarding members within their jurisdiction when the system was established. Even now, they are excluded from involvement unless and until the case is referred down by the Standards Board for determination or investigation, thus removing primary responsibility for standards from local authorities.

26. Witnesses highlighted the consequences of such a high degree of centralisation:

Creation of a significant, and unnecessary, additional workload for the Standards Board;

Marginalisation of monitoring officers and local standards committees;

Removal of the ability to resolve complaints through mediation or other informal methods;

That trivial complaints receive more status than warranted; and

An inability to take local information and context into account when investigating or determining upon complaints.

27. The Committee on Standards in Public Life in their report on Standards of Conduct in Local Government discussed proposals put forward to amend the framework further to allow local standards committees to receive and sift allegations of breaches of the Code of Conduct which would address many of these concerns. The Committee argued that:

such a change would enable [local] Standards Committees to use mediation or other measures…in response to complaints that may be minor, vexatious or politically or personally motivated. Some of these complaints, while not meriting the full panoply of a national (or even) local investigation, can be resolved using these more informal measures. This is a key aspect missing from the current centralised system.[24]

28. There are, however, strong arguments in favour of retaining some of the centralising features of the ethical framework as it operates at present. These were encapsulated by Stephen Bundred, Chief Executive of the Audit Commission, who, while acknowledging that there were "powerful arguments both for and against" local filtering, said that:

one of the purposes of the Standards Board is to ensure public confidence in standards in local government, and the independent assessment at first instance is one of the elements that provides that public confidence. It is also true that there would no doubt be some degree of inconsistency if there were local filtering, and there is no doubt therefore a risk that initial local filtering could make it more difficult to deal with certain types of allegations.[25]

Rather than being a unique weakness of the current system, we believe that central initial assessment of complaints by experienced officers applying a consistent set of criteria is one of its unique strengths.

29. Much of the criticism that has been levelled at the highly centralised nature of the ethical framework can be attributed to the delay in implementing the Regulations to enable the Standards Board to refer cases to monitoring officers and local standards committees for investigation and determination. The Office of the Deputy Prime Minister acknowledged:

concerns raised by some about the time taken to bring forward the necessary secondary legislation to implement local decision-making". It explained that "this has been a consequence of both extensive public consultation and the difficult issues this has raised, some of which have necessitated further primary legislation.[26]

30. One of the most critical issues raised in the consultation was a potential conflict of interest between the proposed investigative role for monitoring officers and their established role as the usual source of advice for members regarding their obligations and duties under the Code of Conduct. This issue was resolved in the Local Government Act 2003 which, by amending the Local Government Act 2000, enabled monitoring officers to nominate another to conduct investigations where a conflict of interest might arise. A further round of consultation was initiated once the Local Government Act 2003 had come into force on proposals to make provision for monitoring officers to undertake investigations when cases were referred to them by Ethical Standards Officers. Consideration of responses to that consultation resulted in further Regulations coming into force in November 2004 to allow cases to be referred for local investigation.

31. We appreciate the Government's desire to consult widely on issues relating to revision of the ethical framework. It is not the fact of consultation that we question, but the timing. Parliament had already recognised, during the passage of the Local Government Bill in 2000, that it would be appropriate for less serious allegations to be investigated and determined locally. It therefore appears inexplicable that the first round of consultation did not commence until May 2002 and that it took until November 2004 for the final set of enabling Regulations to come into force—some four years after the passing of the Act which established the ethical framework. In the meantime, the consequences of over-centralisation have jeopardised confidence in the framework, exposed the Standards Board to an unnecessary volume of work and undermined its efforts to embed the ethical framework in local government culture. It is regrettable that the Government allowed a four year delay between the introduction of the new ethical framework for local government and the completion of the statutory measures required to make it work effectively. It was unreasonable to expect the Standards Board to function well within an incomplete statutory framework and without the necessary resources and powers.

Investigations

32. The Standards Board received 2,984 complaints in the financial year 2002-03 (its first year of operation) and a further 3,555 in 2003-04. Expectations that the volume of complaints would decline over time do not appear to have been realised. The Standards Board told us that it currently receives some 300 new complaints each month.[27]

33. The Standards Board expects to refer 30 per cent of the complaints it receives for investigation either by its Ethical Standards Officers or, under the November 2004 regulations, by local monitoring officers. In 2002-03, 45 per cent of complaints were referred by the Standards Board to its Ethical Standards Officers for investigation. This proportion was reduced in 2003-04 to 34 per cent and is currently running at around 28 per cent.

34. The Board's target is to decide whether a complaint should be referred for investigation within ten days. In the early days of the Board's existence the average time taken was considerably longer. We heard of instances where it had taken up to six months for complaints even to be acknowledged. In those cases which were referred for investigations, too often the delays became even more protracted. The Board aims to complete investigations within six months but research commissioned by the Committee on Standards in Public Life suggests that in 2003 the average time taken from the receipt of a complaint to the completion of any related investigation was eight and a half months.[28] Our evidence is littered with examples where investigations took well over a year.[29]

35. The most often repeated criticism of the Standards Board made in our evidence relates to the length of time between the receipt of a complaint and the completion of any resulting investigation. These delays can have significant detrimental impacts. As Mr Gordon Musset, Town Clerk at Haverill Town Council, told us "for those ultimately found guilty, this gives them too long to continue in breach of the Code. For the innocent, it can be stressful time".[30] It can also have an unwarranted detrimental impact on the reputation of Councillors and potentially on their chances of re-election. The City of Durham Standards Committee was not alone in arguing that "long delays in dealing with complaints can lead to injustice, or at least unfairness".[31] Northamptonshire County Council, South Ribble Borough Council, Wyre Borough Council and Tewkesbury Borough Council, among others, made similar arguments.[32] Moreover, as the Association of Council Secretaries and Solicitors pointed out, inordinate delays undermine the professional standing and influence of the Standards Board and its officers and do not serve "to build trust or confidence" in the ethical framework—the very thing that the Standards Board is tasked to do.[33]

36. The Standards Board told us that:

the delay in introducing regulations for handling cases at a local level meant that the Board initially had to deal with all investigations against members with insufficient resources to meet demand. Ethical Standards Officers were overloaded with cases and inundated with less significant complaints without the power to refer matters locally.[34]

The Board also experienced difficulties in recruiting and retaining appropriate staff at the salaries it was able to offer.[35] Indeed, it did not reach a full complement of staff until July 2004. Sir Anthony Holland, Chairman of the Standards Board, also pointed to the diligence required at the outset to ensure that the Board's procedures and processes were scrupulously fair which, without any comparable system to learn from, meant that early investigations were more time-consuming.[36]

37. Some witnesses suggested that the Standards Board had underestimated the volume of complaints that it would receive and that it was therefore unprepared. This does not seem to have been the case. Indeed, the volume of complaints received was only slightly above the level provided for in the Board's business plan. What did take the Board by surprise was the nature of those complaints. Half of all the complaints received by the Standards Board in 2003-4, and 55 per cent of its investigations, related to parish councillors.[37] (In contrast, parish council spending as a proportion of all local government spending is only a fraction of one per cent.) As Sir Anthony explained:

the volume of complaints was what we expected, or very nearly, but the kind of complaint meant that the investigations process was far more complex than anticipated…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.[38]

38. The Standards Board have put in place a number of measures designed to speed up its processes and to tackle the backlog of cases which at one point was as high as 400. Provisions of the Local Government Act 2003 enabled the Board to delegate decisions on whether to refer complaints for investigation. It has, therefore, been able to establish a Referrals Unit which now assesses complaints against a defined set of criteria. As a result the average time taken to decide whether an investigation is appropriate is down to eleven and a half days. Additional funding of some £900,000 from the ODPM has, among other things, enabled the Board to create a special team to tackle the backlog of cases. The Standards Board told us in November 2004 that 25 per cent of the backlog had already been cleared and that it expected to clear the rest of the backlog by March 2005.[39] Sir Anthony Holland, when he appeared before us in January 2005, confirmed that the Board was still on course to meet this target.[40] A new, more streamlined, case-handling system appeared to be working well. The Standards Board also told us that the criteria it used to determine whether a case should be referred for investigation had been strengthened "to discourage trivial, malicious or tit for tat complaints, and reject allegations made solely for political point scoring" and pointed to a reduction in the proportion of cases referred and a decline in the proportion of member-on-member complaints and complaints relating to parish councils as evidence of the impact of these revisions.[41] Additional staff have been recruited and the Board has drawn upon external legal assistance.[42]

39. Early indications are that these measures are having the desired effect. Over 40 per cent of cases are now completed with the six month target time-frame, compared to 38 per cent in 2003-04.[43] Many of our witnesses acknowledged recent improvements. Birmingham City Council, for instance, told us that "all evidence appears to suggest that the delay factor is now reducing".[44] We congratulate the Standards Board on the progress that has been made in reducing the average time taken between the receipt of a complaint and the completion of any associated investigation.

40. There is, however, still more to be done in this regard. The Standards Board remains some way from its target of completing 40 per cent on investigations within four months and a further 50 per cent within six months. Although it is too early to judge the impact of the s66 regulations permitting the Board to refer cases to local monitoring officers for investigations, they should mean that the Board is freer to focus more of its resources on the more serious cases which have the greatest potential to undermine local democracy. We recommend that the impact of the s66 Regulations on the time taken to complete investigations is monitored closely. If the Standards Board does not meet its target of completing within six months 90 per cent of its investigations by the end of the 2005-06 financial year, further measures to improve efficiency will be required. Continuing inordinate delays are counter-productive and unacceptable.

Determinations

41. The Adjudication Panel was established under the Local Government Act 2000 as an integral but independent part of the ethical framework. Once an investigation has been completed and the Ethical Standards Officer has concluded that a breach of the Code has taken place, the ESO decides whether or not to refer it for determination. Until the June 2003 Regulations permitting referral to local Standards Committees for determination, all cases where determination was considered appropriate were referred to the Adjudication Panel. It has the power to impose a range of sanctions on those held to be in breach of the Code, including suspension or disqualification from office for a period of up to five years.

42. The Adjudication Panel heard its first case in January 2003. Between that date and October 2004 it heard a total of 189 cases. In 182 of those cases it imposed a penalty, including 154 penalties of disqualification for a period of a year or more. The first determination to be made by a local Standards Committee occurred on 1st September 2003. Sixty-eight cases had been determined by local Standards Committees by the end of August 2004 and in 91 per cent of those, the local Standards Committee concerned agreed that the breach of the Code had taken place.

43. These figures display a strong degree of confidence in the findings of ESOs on the part of the Adjudication Panel and local Standards Committees. They also re-inforce our belief that serious misconduct among the 100,000 or so members of local government in England is rare. However, the fact that only 20 per cent of cases are investigated and that only 7 per cent reach the stage of determination lends weight to the arguments of those who believe that there is still too high a degree of centralisation in the ethical standards framework. We welcome the June 2003 regulations enabling some cases to be referred to local standards committees for determination.

Disclosure

44. Our terms of reference did not specifically invite comments on the conduct of investigations by the Standards Board but it is clear from the number of our witnesses who chose to bring it to our attention that the issue of disclosure of names of those involved in complaints and investigations, and the timing of such disclosure, is a matter of concern to many.

45. One specific area of concern is the time at which a member should be informed that a complaint has been raised against them. At present the Board's practice is to inform the member concerned that a complaint has been raised against them after initial assessment has taken place (that is, only after a decision has been made on whether or not to refer the complaint for investigation or not). The Minister was content with this situation provided that first, the initial screening procedures were relatively quick and, secondly, that the member complained against was provided with a clear statement of the outcome of that initial assessment.[45] Other witnesses drew attention to the attraction of a system which did not cause members undue anxiety by informing them of a complaint raised against them for it to be dismissed only days later.[46] We note that this practice is in line with other national codes of conduct, such as that covering members of the Bar.[47] Others witnesses argued that not disclosing the existence of a complaint to the member concerned at the earliest opportunity flew in the face of natural justice.[48]

46. It is important that monitoring officers are informed as quickly as possible when a complaint has been raised against one of their members. As Ms Lloyd Jones, Director of Legal and Democratic Services at the London Borough of Hackney, told us

there may well be action which the authority needs to take which is not just to do with the investigation of the complaint. It may be, for example, that in a case of breach of confidentiality or misuse of resources…there is administrative action which the monitoring officer, in compliance with our duties to uphold legal principles…would need to take some steps on, which would not interfere with the legitimate investigation of the complaint".[49]

We believe that it would be deeply unfair for monitoring officers to be made aware of the existence of a complaint before the member complained against knew of it. As Professor Chapman, Chairman of Durham City Council Standards Committee argued, "it is better for people to know they are being criticised than for them not to know when everyone else does".[50]

47. We recommend that members against whom a complaint has been made be informed of the complaint by the Standards Board as soon as it is received and that the relevant monitoring officer be made aware of the complaint at the same time.

48. Our attention was also drawn to the different ways in which a member complained against and the person raising the complaint were treated by the Standards Board. While the Board makes public, through its website and other means, the names of those against whom a complaint has been made, the names of those making complaints are never divulged. Leeds City Council, among others, raised similar concerns: "complainants should be prepared to stand by their complaints, particularly members accusing fellow members of the case of persistent complainers".[51]

49. We are not unsympathetic to these arguments but are conscious of the potential negative consequences that revealing the names of complainants might have. As the Audit Commission argued, "giving publicity to complainants might well deter complainants from bringing legitimate concerns to attention".[52] Moreover, the Standards Board has a duty to protect whistle-blowers. Their ability to do so would be compromised by a duty to reveal the names of complainants. We do not support the proposal that the names of the complainants should be made public.

50. The related issues of whether, and if so for how long, the name of a member complained against should appear on the Standards Board website was also commented upon by our witnesses. At present the name of a member complained against remains on the Standards Board website for two years, even if they have been exonerated. The Standards Board itself are not content with the current situation.[53] We welcome the Standards Board's commitment to review practice on the publication of case details on its website during 2005 and recommend a reduction in the duration of time for which the names of those exonerated remain on the Standards Board's website.

Vexatious, malicious and frivolous complaints

51. It has been suggested that a significant proportion of the complaints made about parish councillors are trivial, vexatious or politically or personally motivated.[54] This has led some to propose that parish councils should be excluded from the ambit of the ethical framework or that it should apply only to those parish councils which reach a financial or other sort of threshold. The Committee on Standards in Public Life were not persuaded by this argument.[55] Neither are we. Parish councils are an important element of local democracy, in some cases with significant spending and all are statutory consultees in the planning process. We believe that the same standards of conduct should apply to all local representatives irrespective of their level of responsibility. We support the recommendation of the Committee on Standards in Public Life that all parish councils remain within the ambit of the ethical framework for local government.

52. Nevertheless, we strongly condemn the activities of those who knowingly make vexatious, malicious or frivolous complaints.

53. There is a strong temptation to impose penalties on those responsible, and for treating their activities as a breach of the Code of Conduct. Vexatious, malicious and frivolous complaints are unethical, wasteful and can result in significant personal distress for their subject. However, we do not believe that that the imposition of penalties on those making malicious complaints would be beneficial in the long term. The additional burden it would impose on the Standards Boards and its Ethical Standards Officers could not be justified and we are conscious that taking such approach may act as a disincentive to those with legitimate complaints to raise.

24 Committee on Standards in Public Life, Tenth Report, Standards of Conduct in Local Government, 1997, Cm 3702, p. 58. Back

25 Q 145 Back

26 Ev 2, HC 1118-II, Session 2003-04 Back

27 Ev 7, HC 1118-II, Session 2003-04 Back

28 Committee on Standards in Public Life, Tenth Report, Standards of Conduct in Local Government, 1997, Cm 3702, p. 68. Back

29 Ev 14, HC 1118-II, Session 2003-04 Back

30 Ev 17, HC 1118-II, Session 2003-04 Back

31 Ev 13, HC 1118-II, Session 2003-04 Back

32 Ev 26, 27, 28; HC 1118-II, Session 2003-04 Back

33 Ev 29-30, HC 1118-II, Session 2003-04 Back

34 Ev 7, HC 1118-II, Session 2003-04 Back

35 Q 161 Back