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
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
(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
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
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
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 bemay a member participate
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 purposesand
we appreciate it will be relevant for purposes other than just
oursthis 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
(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