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


Memorandum by Harrogate Borough Council

  You will have heard from the Chief Executive on behalf of this Authority with comments on the organisation aspects of the White Paper and draft Bill. This letter is addressed to the Standards aspect which is within my purview as Solicitor to the Council and Monitoring Officer.

  1.  The Council was pleased to note that the Government has addressed the issues of political proportionality on the Standards Committees and the question of the voting rights of independent persons co-opted onto the Committee. These were two aspects not previously addressed which had been causing the Council some concern. Otherwise, in view of the fact that the problems found to be in local government by the Nolan Committee and acknowledged by the White Paper are few, the regulatory regime set up under the new Bill appears to be potentially beaurocratic for all concerned.

  2.  Whilst it is quite understood that it is sensible not to fix the size of the Standards Board because it needs to be adjusted to suit the volume of work, there appears, at present, to be no means of the Monitoring Officer at the authority taking any responsibility for rooting our vexatious or frivolous claims. All claims will either be made direct to the Standards Board or must be referred to the Standards Board if they concern a claim about the Code of Conduct. Whilst at present any complaints which are unfounded can be dealt with and explained by the Monitoring Officer and any complaints which have some substance can be referred to the Standards Committee for action to be taken, under the new regime everything will have to be referred to the Ethical Standards Officers.

  However, if there is a complaint on the Code of Conduct issue, the Bill requires the Monitoring Officer to continue to take action as Monitoring Officer and the Standards Sub-Committee to continue to act as Standards Sub-Committee even during the investigation of the ESO. If, therefore, the action of a councillor in breach of the Code amounts to maladministration in the opinion of the Monitoring Officer, I have to act to protect the Council's position and cover exactly the same ground as the Ethical Standards Officer in my report to the Council as the Ethical Standards Officer will have to cover in considering the position for the Standards Board. The original Green Paper envisaged that the Monitoring Officer would refer complaints to the Standards Board which were serious and which the Monitoring Officer considered were beyond the disciplinary powers of the Council. That appears to be no longer the case. This aspect of the Bill should be examined for the potential bureaucracy that it produces although it is recognised that this procedure releases the Monitoring Officer from any potential criticism and from any pressure not to deal properly with a complaint.

  Also, if all complaints are to be referred, then repetitive complaints, or those which the Monitoring Officer knows full well are ill founded, will still have to be referred to the Standards Board. Any guidance to be issued or regulations to be made might perhaps address the question of whether the Monitoring Officer is entitled to make such points when referring complaints to the Standards Board. For instance, a complaint may have already been dealt with both by the Ombudsman and by the Council's Standards Committee and yet be repeated to the Standards Board.

  3.  This Council has decided that anonymous complaints will not be considered though all complainants will be granted complete confidentiality. The draft Bill implies that anonymous complaints to the Standards Board will be considered by the Ethical Standards Officers. I have assumed this from the fact that the Bill states that the complainant must be notified of the findings if at all possible. A complainant with a name and address should be able to be contacted. Only an anonymous complainant cannot be. Whilst there is every reason to deal with a complaint in absolute confidence and not reveal the name of the complainant to the person complained against, there seems little reason to encourage mischievous complaints by accepting anonymous ones.

  4.  Thought needs to be given to how the coordination between the ESO's and Ombudsman/District Auditor/Police and the interface with the Monitoring Officer/Chief Financial Officer will occur. Whilst the Bill says that the ESO's will coordinate their investigations with the Ombudsman etc, it could result in the ESO investigating at the same time as the Ombudsman is investigating and at the same time as the Monitoring Officer is investigating. This is a bureaucracy that could bring the whole system into disrepute.

  5.  An ESO is entitled to make four findings, one of which is "No action needs to be taken in respect of the matters the subject of the investigation". This means quite clearly that there has been a prima facie case but no action needs to be taken. It would be interesting to know on what basis such a decision could be reached. Admittedly, it might be that the councillor is no longer a councillor or be otherwise disqualified from acting as a councillor. However, in respect of that finding and the finding of "no evidence of any failure to comply with the Code", the ESO is obliged to publish the decision in a newspaper circulating in the authority's area. If there is no evidence of any failure to comply, then such a report would clear the councillor's name. If the report is "no action needs to be taken" then the report may either clear the councillor or tarnish them. If, however, the matter has not been public prior to the report, will it not be potentially harmful to a completely innocent councillor to have any report published, even if that report says that they are completely innocent? The Ombudsman only reports where there is maladministration.

  Where this Council's Standards Committee considers a complaint, it is proposing that the report will be public and, therefore, any action against the councillor or clearance of the councillor must also be public. No indication is given in the Bill as to the content of the ESO report or its length. We must endeavour to avoid both whitewash and witch-hunt and it is difficult to know whether that would be achieved by publishing reports on "no evidence of failure" or "no action to be taken".

  6.  The other point which I need to make is that there is no sub judice rule in relation to the references whether at Standards Board or Standards Committee level. This seems to me essential to avoid politicking and witch-hunting before a report is made or decision issued. The interface between the Standards Board procedures and the (expected) on going action by a Standards Committee or Monitoring Officer will need to be specifically addressed.

  7.  Finally, the penalties proposed are available only to the Adjudication Panel and have to be enforced by the council through notice provisions. No additional powers are proposed for councils to deal with their own members. Since powers are currently very limited some thought should be given to whether these are adequate.

  I trust that these points can be taken into account in considering the Bill and the proposed regulations.

20 May 1999

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