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


Memorandum by the Council on Tribunals

  The Council's comments are confined to Part II of the draft Bill, and focus in particular on the proposed Adjudication Panels.

  The Council generally welcome Part II of the Bill, which meets many of the concerns they expressed in responding to the consultation paper "A new ethical framework".

  The Council welcome in particular the establishment by clause 38 of Adjudication Panels separate from the Standards Boards, thereby separating adjudicative from investigative functions. The Council agree that the two Adjudicative Panels should be placed under their supervision.

  As I anticipated in my letter of 5 November 1998 to Tony Redpath, the Council consider that the case panels under clause 39 should be chaired by a lawyer. The Council note that the Secretary of State and the National Assembly for Wales would have power to issue guidance on the composition of case panels. However, the Council would prefer specific statutory provision for case panels to be chaired by lawyers.

  The Council have a minor drafting point on paragraph 8 of Schedule 4, which provides that each of the Adjudicative Panels may arrange for the discharge of any of its functions by a committee, case panel or member of the Panel. Under clause 39, case panels are to consist of not less than three members, so it would not be possible for a single member to carry out this function of the Adjudication Panel. It may be that some fine-tuning of the wording of paragraph 8 of Schedule 4 is needed. The Council also assume that paragraph 9(2) of Schedule 4, concerning the validity of proceedings, does not apply to case panels.

  The Council do see difficulties about the proposal in paragraph 4.25 of the paper that the Standards Board and the Adjudication Panel should be brought within one organisation. The Bill makes it clear that the two bodies will be separate, with quite distinct functions. It could be damaging to the perception of the independence of the two bodies from each other if they were brought within one organisation. For example, the Council presume that ESOs would undertake the "prosecution" of cases before a case panel of the Adjudication Panel. If the ESOs were too familiar with case panel members on a day-to-day basis, that could undermine the credibility of the adjudicative process in what is bound to be politically sensitive area. The Council note that they will be consulted about the arrangements, but think it necessary to make their concerns known at the outset.

  The Council have one or two points on another aspect of Part II of the Bill, namely the ESO's power of interim suspension (clause 37). As the Council have said before, this power is a draconian one, and there need to be safeguards. The Council have some concern about the second bullet point in paragraph 4.29 of the paper containing the reference to the ESO having "good reason to believe the allegation was true". This seems to involve an element of pre-judgment on the part of the ESO, whose task is not to adjudicate on the truth or otherwise of an allegation. Altogether, the Council feel that the provision for interim suspension puts too much power into the hands of the ESO, notwithstanding the availability of an appeal to the High Court. The Council would be happier if the decision on interim suspension were to be referred to the full Standards Board.

20 May 1999

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