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


Memorandum by the Commissioner for Local Administration in Wales, Mr Elwyn Moseley


  1.  I am the Commissioner for Local Administration in Wales (the Local Government Ombudsman for Wales). I was appointed in 1991. The Committee have invited me to give evidence on the draft Local Government (Organisation and Standards) Bill, and in particular Part II of the Bill which deals with the conduct of local government members and employees. This memorandum is submitted in response to that invitation.

My current jurisdiction

  2.  My jurisdiction derives from the Local Government Act 1972 as amended. I investigate complaints from members of the public who claim to have suffered injustice as a consequence of maladministration by local and other public authorities in Wales. A number of matters are outside my jurisdiction including personnel issues, commercial transactions (other than land transactions) and the internal management of schools. I am an inquisitor, and the process of investigating and adjudicating on complaints is an inquisitorial process. I am required to conduct my investigations in private, and information obtained by me or my investigators in the course of or for the purposes of an investigation must not be disclosed except for the purposes of the investigation and any report on it. Subject to certain very limited exceptions, neither I nor my officers can be called to give evidence in any legal proceedings on any matter coming to our knowledge in the curse of an investigation. With the exception of councillors who have breached the current code of local government conduct, and apart from identifying the authorities concerned, my reports must not mention the name of or identify any person unless I consider it necessary to do so in the public interest.

Investigations of breaches of the current code of conduct

  3.  Maladministration can include breaches of the current national code of local government conduct. However, the investigation of breaches of the code can only be undertaken in the context of my current jurisdiction. The Commission was not established with the primary aim of enforcing the code; it is a common misconception that the Commission is a kind of police force or auditor. Nevertheless, the Commission is the only independent public body with statutory authority to investigate breaches of the current code of conduct and publish a report on such a breach.

  4.  The current code of local government conduct was issued in April 1990. It replaced an earlier code issued in 1975. The government circular accompanying the code emphasises that the Local Government Ombudsman may find that a breach of the code by an individual member of an authority constitutes maladministration by the authority. By virtue of amendments to the Local Government Act 1974 which came into effect on 3 May 1990, I am now required to name in my report on an investigation a councillor who has breached the code and give particulars of the breach unless I am satisfied that it would be unjust to do so.

Reports on breaches of the current code of conduct

  5.  Since my appointment as Ombudsman in 1991, I have issued two dozen reports in which I have concluded that a councillor (or councillors) has breached the code of conduct. (A collection of summaries of each of these reports is available, and can be provided for the Committee if members of the Committee would find them helpful in assessing the level and nature of breaches of the code in Wales over the last eight years or so). Even allowing for the restrictions on my jurisdiction, the number of proven breaches is relatively low given the total activity of local authorities in Wales. In order to place the issue further in context, it may be worth noting that last year (1 April 1998 to 31 March 1999) only 11 of the 1,134 complaints I received included even the vaguest of allegations of misconduct, and of the cases determined during the year only three resulted in public reports.

Activities which have caused concern in the past

  6.  However, individual cases have caused and do cause concern. The particular areas of local authority activity which have been most vulnerable to abuse in the past have been the allocation of council houses, the award of house renovation grants, the grant of planning permission and, to a lesser extent, land transactions. All authorities face difficult decisions in allocating scarce resources fairly when the demand from the public for services greatly exceeds the resources available to provide those services. The absence of a fair, efficient and effective administrative framework for making such decisions (such as clear and objective criteria for determining priority) can make systems vulnerable to abuse and cause suspicion to be easily aroused. Some of the reports I have issued in the past have referred, for example, to the arbitrary allocation of Council houses including allocations to relatives of councillors despite the absence of any evidence that those relatives were entitled to priority. Other investigations concerned the award of house renovation grants or found that members of planning committees had spoken or voted on planning applications despite their personal connections with the applicants.

  7.  Some of the investigations showed that the code had been breached simply because the member concerned had not declared a personal interest at the committee meeting at which the house was allocated or the planning permission was granted. In other instances the breach was compounded by the councillor speaking and voting on the issue. Evidence of such breaches are sometimes not too difficult to obtain during an investigation because for example the minutes of the Committee concerned normally show whether the member concerned was present at the relevant time, and whether he declared his interest. What is not so easy to establish is the extent to which a member may have influenced a decision outside the formal meetings of a Committee. The only evidence may be the favourable outcome of the Council's deliberations to the councillor concerned the allocation of the house to his relative for example. In that context, it is important that any new executive arrangements proposed in the government's Bill provide for the declaration and recording of personal interests whenever a councillor or employee participates in decision making whether or not the decision is made in a formal meeting open to the public.

Changes in recent years

  8.  However, judging by the complaints received in the last two or three years, the incidence of breaches of the code associated with some types of local authority activity (the allocation of council houses, for example) appears to have diminished partly as a result of a change in the law in Wales and partly because of concern expressed by the Welsh Affairs Committee and action taken by the Secretary of State. By virtue of the Local Housing Authorities (Prescribed Principles for Allocation Schemes) (Wales) Regulations 1997 local ward councillors representing either the area where a property is located or where the qualifying person lives may no longer decide on the allocation of Council housing accommodation. The system of patronage prevalent in some areas appears, therefore, to have disappeared thus reducing the number of complaints that local councillors had misused their position. Similarly, the number of adverse reports related to the grant of planning permission in rural areas contrary to published development plans and without an acceptable explanation has reduced since the publication of the Welsh Affairs Committee's third report on Rural Housing in the 1992-93 Parliamentary Session, and since the subsequent action taken by the then Secretary of State for Wales. Acceptable administrative practices can, therefore, prevent processes being abused for private or personal gain, and avoid the fostering of suspicion and cynicism.

The Government's Proposals and the Local Government (Organisation and Standards) Bill

  9.  It seems to me that the most important change proposed by the government in the second part of its Bill is the introduction of penalties for breaches of a new code of conduct. Ethical standards officers of the new Standards Board for Wales will be able to investigate allegations of breaches of the new code and refer such breaches either to a Council's Standards Committee or to the Adjudication Panel which will be able to disqualify a councillor for up to five years. The government's proposals appear to envisage a mixture of the current, informal and confidential inquisitorial process followed by Ombudsmen and the open adversarial processes of a court. It may be easy to combine those processes in an effective, efficient and fair way. Moreover, a code, by its very nature, may be rather imprecise. It is unlikely to be drafted in terms similar to criminal law statutes and be made up entirely of specific prohibitions or mandatory requirements. If a councillor were to disagree with the conclusions reached by an ethical standards officer would he be able to ask for all the evidence to be reheard by the Adjudication Panel? I so what would be the implications in terms of time and the cost of the investigation? Would witnesses be cross-examined in public? If so what would be the implications in terms of anonymity for and the privacy of complainants? Would the ethical standards officers be subject to cross-examination in public? What would be the status of the ethical standards officer's report on his investigation of allegations? Would it contain recommendations? As drafted the Bill does not appear to allow an ethical standards officer or the Standards Board any discretion as to whether to undertake an investigation of an allegation or not. That contrasts with the wide discretion given to Local Government Ombudsmen by the Local Government Act 1974. The ethical standards officer must publish a report of each investigation however trivial and unfounded the allegation. If the Standards Board is to avoid becoming "bogged down with numerous, mischievous or frivolous complaints" (see paragraph 4.23 of the Welsh Office's consultation paper "A Stronger Voice for Local People") the ethical standards officers should have the same wide discretion as an Ombudsman.

The Government's Proposals for Wales—the Option of Conferring on the Local Government Ombudsman the Role of the Standards Board for Wales

  10.  The government's consultation paper suggests at paragraph 4.20 that if the likely workload were to be insufficient to justify a new body, "the function (of the Standards Commission for Wales) could be conferred on the Commission for Local Administration in Wales (the Local Government Ombudsman). This might entail the need for consequential changes to the Ombudsman's jurisdiction and to the Bill as drafted." It is unclear whether the government envisages one person holding two separate offices with separate jurisdiction and powers or whether the Ombudsman's jurisdiction would simply be extended. At first glance both these options appear to have advantages including the following:

    (a)  The use of an existing organisation with has experience of investigating allegations of breaches of the current code.

    (b)  The avoidance of the expense and duplication involved in setting up a completely new organisation.

    (c)  The Commission for Local Administration is independent.

    (d)  The Ombudsman already has wide powers to obtain information.

    (e)  The current inquisitorial procedures followed by an Ombudsman are familiar to local authorities and are relatively prompt and informal.

  11.  There may, however, be disadvantages. These could include the following:

    (a)  The Commission for Local Administration is not a police force or prosecutor. Although I am not a judge, I do have a role with some similarities to an adjudicator or regulator. I reach a conclusion on my investigation and I publish a report incorporating my decision. Subject to my duty to issue a further report, my role is then at an end. The report is not a preliminary to some other judicial process although it has to be considered by the authority whose actions are the subject of the report. It would be inappropriate for an Ombudsman or his investigators, therefore, to be subject to cross-examination in public on his conclusions in a separate adversarial process. The law as it stands, in any event, prevents that happening. The proper way to challenge an Ombudsman's report is by way of judicial review in the High Court.

    (b)  An Ombudsman must try and preserve the anonymity of complainants and individuals from whom he obtains information. This obligation is incompatible with the oral public hearings envisaged in the Government's consultation paper. It would be difficult to reconcile a right to anonymity for complainants and witnesses with the need to be fair to a councillor vulnerable to punishment.

    (c)  Any new role as an ethical standards officer, whether it was held by an Ombudsman as a separate statutory officer, or not, might conflict with an Ombudsman's existing role in seeking remedies for injustice caused by maladministration. The prohibition on the disclosure of information by the Ombudsman and his staff might also be a difficulty.

  12.  An Ombudsman should, in any event, be allowed to investigate allegations of breaches of the code of conduct and produce a report, as I do now, when a complaint to him has been made by someone who claims to have suffered consequential injustice. The report would set out the facts as the Ombudsman had found them and his conclusions as to whether there had been a breach of the code or not. The report would not identify individuals or impose a penalty. A copy of the report could be sent to the Standards Board or the Adjudication Panel as appropriate, but the Ombudsman's involvement with the allegation of a breach of the code should then be at an end.

  13.  The two roles of Ombudsman and ethical standards officer could perhaps be combined if either role were to come to an end as soon as a report was sent to the Adjudication Panel. Fairness might require the Adjudication Panel to give a councillor alleged to have breached the code an opportunity to question the findings of fact in any report. Nevertheless, in order to avoid a complete rehearing of the evidence, a presumption might be appropriate (subject to the implications of the Human Rights Act 1998) and the facts as recited in the report by the Ombudsman/ethical standards officer were deemed to be correct unless the report had already been successfully challenged by way of judicial review or new evidence not previously available to the Ombudsman/ethical standards officer, was produced. The role of the Adjudication Panel would then be confined to determining an appropriate penalty after giving the councillor concerned an opportunity to be heard.

  14.  It any event, it might be preferable if appointments to the Standards Board and the Adjudication Panel were not to be made by the National Assembly for Wales but by the Queen albeit after consultation with the Assembly. These would be quasi judicial appointments, similar to the office of Ombudsman, and they should not be or appear to be political appointments or vulnerable to political pressure. The draft Bill also empowers ethical standards officers to suspend councillors from office pending the completion of an investigation. It seems to me, in the interest of fairness, that suspension should be a matter for the Adjudication Panel after consideration of an application by the ethical standards officer. I also note that the draft Bill does not include guidance as to when an issue should be referred to a Council's Standards Committee and when it should be referred to an Adjudication Panel. Likewise, the draft Bill does not indicate what sanctions, if any, a Council's Standards Committee could impose for breaches of the code of conduct.

2 July 1999


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