Draft Local Government (Organisation and Standards) Bill Appendices to the Minutes of Evidence - First Report


Memorandum by the Commission for Local Administration in England


  1.  On behalf of the Commission, I am pleased to have the opportunity of giving evidence to the committee on the draft Local Government (Organisation and Standards) Bill.

Scope of evidence

  2.  It seems to me that the most useful contribution I can make will be to comment on the ethical framework part of the Bill.

  3.  The Commission has noted with interest the proposals in the structures part of the Bill. However, we do not believe it is appropriate for us to express a view about how local government should be structured. There is already a variety of organisational structure and decision making processes in local government. Our concern is that whoever makes a decision, whether an officer under delegated powers, a committee, or any other body, the decisions maker must act properly, fairly and efficiently and must be able to be seen to do so.

Detailed provisions of the Bill

  4.  We have drawn attention to some detailed points about the Bill. It may not be appropriate to refer to these now but I mention four simply as illustrations:

    (a)  there is a significant problem in the Bill as drafted in so far as the arrangements for considering allegations of misconduct by authority members are concerned. Part of the arrangements proposed are for the allegation, where it is not considered that an investigation by the standards board is warranted, to be referred to the authority's standards committee. As the Bill is drafted, not every authority has to have a standards committee. There is therefore a major discrepancy which is relevant in a number of places in the Bill;

    (b)  we question whether it is sensible to identify complainants in any published report. Though identification would be needed as part of the investigation process, naming a complainant in a public report could well be disadvantageous;

    (c)  the role of a Local Government Ombudsman in considering a complaint, whether about members' interests or any other matter, is to consider whether there was maladministration and if so, whether it caused injustice to the complainant. We think the question of discipline, whether of members or officers, is not a matter for the Ombudsman but for the authority or for some other responsible body. At present there is a statutory requirement that the Ombudsman must name in a report a member who has breached the code of conduct, unless the Ombudsman considers it unjust to do so. We would have no objection to the proposal to remove this requirement;

    (d)  in the Bill as drafted there seems to be only one procedure for all complaints, and no provision seems to have been made for dealing with those which clearly have no merit or are trivial. The Local Government Ombudsmen have discretion to "initiate, continue, or discontinue" an investigation. We would suggest that some such provision should be considered for the Bill.

Standards of conduct in local government

  5.  The Ombudsmen have many years experience of investigating complaints from members of the public which are about the conduct of members, either wholly or partly. We see only a partial picture of what is going on because we can only investigate when a complaint is made to us. But from our experience we have no reason to dissent from the analysis of the Nolan Committee that examples of bad conduct, important though it is to highlight them when they occur, are probably not widespread and that generally local authority members are anxious to behave correctly.

  6.  In an average year we would receive something like 60-70 complaints (out of about 16,000 in total) which, either in whole or in part, included a complaint about members' conduct. It is important to remember that our jurisdiction is limited by law in various ways and it would be inappropriate to draw any conclusions from the volume of complaints to us about what the volume of complaints to the standards board would be. Our jurisdiction for example rules out complaints about various matters such as personnel complaints and most commercial or contractual complaints; and it rules out complaints which would affect all or most inhabitants of an area, and requires that we can only consider complaints of injustice to an individual or group of individuals resulting from maladministration.

Ethical framework

  7.  In our response to the Nolan Committee and the consultation papers which followed, we did suggest that there should continue to be a National Code of Conduct, suitably revised and updated, rather than each authority producing its own Code. We recognise that the Government was not persuaded of the need for a National Code. However, we do welcome the intention that there is to be a National Model and that this Model will have mandatory elements in it. It seems to us that citizens are entitled to expect that ethical conduct broadly means the same across the whole country and that any scope for variation in the local codes should be limited.

  8.  We believe that there is an urgent need for the National Model to be produced. We did draw attention, some four years ago now, to the fact that the existing code did need review and clarification.

National Model Code

  9.  A great deal of work will be required on the drawing up in detail of a National Model Code. I would not propose to mention points of detail here but I will refer to some general points which we think need to be borne in mind.

  10.  We think it important that there should be no lowering of standards. If there were to be any change to the expected standards of conduct, we believe the public would think that standards should be higher and certainly not lower. We believe this general point needs to be the foundation on which the new National Model is built.

  11.  It was for that reason that we had very serious reservations about suggestions that the test of "real danger of bias" which is a familiar test in law, could be imported into the National Model. That would be a more stringent test for determining when a member has an interest which should preclude participation than the current test. A change to the test would therefore lower standards because it would allow members to speak and vote on matters where participation is currently precluded.

  12.  We consider that the overriding test of conduct should continue to be what an ordinary member of the public, knowing the facts, would reasonably think and expect.

  13.  We believe it is essential that the National Model Code should provide clarity and certainty about what is expected of members. A statement of general principles will be important but more detailed guidance than that will be needed. In our experience, many members do not act wilfully in breaching the Code but act either because they are not sufficiently clear.

  14.  We believe it is right to maintain a distinction between some matters where, because or a personal or private interest, a member should not be able to participate in consideration of a matter; and other circumstances where a member has a particular interest (but more of a public than a personal or private nature) which it would be right for the member to declare but nonetheless the member may fully participate in consideration of the matter.

  15.  At present there are some circumstances where members are precluded from either speaking or voting, and some circumstances where they are precluded from voting but are allowed to speak. We think that distinction should be removed. Members can be just as influential through speaking as they can through voting, particularly if they are local members speaking on a matter because their views would normally carry great weight with their colleagues. We think consideration should be given to abolishing an arrangement where a member may speak but not vote. The question simply should be—may a member participate or not?

The proposed standards boards and standards committees

  16.  The draft Bill allows for some complaints to be referred back from the standards board to the authority's own standards committee. However it does not specify what powers this committee then has to act or what sanctions would be available.

  17.  Fairness and thoroughness are vital in the investigation of complaints. there is a great deal at stake personally for councillors. Fairness and thoroughness will have implications for the speed at which cases can be investigated. The process proposed in the draft Bill is complex and may be at odds with the expectation that complaints will be decided quickly.

  18.  We are aware that the consultation paper for Wales raised the question of whether the function of the standards commission for Wales could be conferred on the Local Government Ombudsman. A similar point was not raised in the consultation in England. It may not be appropriate for me to discuss the point therefore but I will say, in short, that the Local Government Ombudsmen in England have serious doubts about whether this would be an appropriate extension of our role.

5 July 1999

Supplementary memorandum by the Commission for Local Administration in England


  At the hearing on 6 July 1999 there was discussion about decision making processes, and both Mr Moseley and I commented on the need for a satisfactory audit trail. For our own purposes—and we appreciate it will be relevant for purposes other than just ours—this is so that when we are investigating complaints about the decisions of councils, we can be clear about how those decisions were taken, see that proper consideration has been given to all matters that should have been taken into account and be satisfied that no irrelevant factors influenced the decision.

  It was suggested that it would be helpful if I could submit a memorandum setting out the minimum standards for such an audit trail This I now do.

  The minimum requirements, it seems to me, are:

    (1)  a copy of the agenda for the relevant meeting.

    (2)  a copy of all reports, analyses, assessments and recommendations from professional officers, and any other written material which the decision maker(s) considered.

    (3)  a note of any advice, opinion, recommendation, or material information provided orally to the decision maker(s).

    (4)  a written record of the decision, which is clear and unambiguous; which is sufficient to indicate the decision and the grounds on which it was made; which indicates who was present and which person or body made the decision; and which indicates in particular the reasons for any decision which was taken contrary to officer advice or established council policy.

    (5)  a written record of the main points arising in any relevant investigations, meetings or discussions (either in person or by telephone) which led up to the decision, such as internal discussions by the council's officers and/or members; site visits or meetings; or discussions with any person or body from outside the council with an interest in the matter concerned (for example applicants for council housing or grants or planning permission; objectors; or potential contractors).

    (6)  a record of any declarations of interest made by members under the National Code for local government conduct and any action taken as a result of those declarations.

    (7)  copies of all relevant correspondence both to and from the council; and relevant internal memoranda.

  I have discussed this memorandum with Mr Elwyn Moseley, Local Government Ombudsman for Wales, and can confirm that he is in agreement with it.

20 July 1999

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