Draft Local Government (Organisation and Standards) Bill Minutes of Evidence


Examination of Witnesses (Questions 140 - 160)

TUESDAY 22 JUNE 1999

COUNCILLOR LORD HANNINGFIELD, COUNCILLOR SIR JEREMY BEECHAM, COUNCILLOR HARRY JONES, COUNCILLOR SIR DAVID WILLIAMS, COUNCILLOR RON GEE AND MR BRIAN BRISCOE

  140. On standards?

  (Councillor Lord Hanningfield) As I have just said, the provisions of the Bill are very strong indeed. We are saying they are almost too complicated. I certainly think they would cover the planning worries that you have just brought up. I do not see any problem there. I support totally what Nolan said about it.
  (Councillor Sir Jeremy Beecham) Within the Bill there is a framework for the Code of Conduct on which hopefully we will be working jointly with the Government which will have to cover issues such as planning. In fact, we produced some very good guidance on planning two or three years ago. The old Association came up with that. In addition, of course, under the proposed new structure the planning committee or the body which takes the relevant control decisions within the council will not have serving upon it members of the executive. That is quite an important safeguard which goes some way to meet the concerns that you have expressed.

Chairman

  141. Can we perhaps just pick up on the issue which was raised in a previous session. Presumably you do not see the executive as being excluded from planning in the wider sense, the planning policy, strategic planning, or do you?

  (Councillor Lord Hanningfield) The executive will always be taking the major decisions. If it came to something like an airport or something they would be the ones who would be looking at the expansion of an airport or something like that. Obviously the scrutiny committee would be the ones who would be challenging that I am sure. The new planning committee will be doing the day to day decisions on waste disposal or gravel extraction or something like that which would be outside the executive.

  142. As you see it the executive would be people who would be making the input into the authority's strategic plan, its development plan?

  (Councillor Lord Hanningfield) Yes, that is right.

  143. And deciding where it was residential, where were the business districts, etc.

  (Councillor Sir Jeremy Beecham) Development control decisions would not be taken by any member of the executive.

  144. No. In a sense the big decisions have been taken in advance.

  (Councillor Sir Jeremy Beecham) I might be the only ex leader here who can confirm that development control committees even under the present regime do not necessarily follow the full policy guidelines.

  Chairman: Normally to the intense irritation of the leader of the council.

Ms Moran

  145. I want to come back to the standards and who scrutinises. Do you not think that there are lessons to be learned from what you are proposing in the sense that self-regulation in this place has been less than effective in some respects and that local government could be in danger of advocating self-regulation and is open to the same possible problems?

  (Councillor Sir Jeremy Beecham) We are not suggesting that. We are looking at a screening process which would hopefully make sense of what could be a bureaucratic nightmare if there is a huge flood of cases going straight into the national machinery and they are having to be filtered and then some sent back and some dealt with and it could be very cumbersome. I think it would be unacceptable to the public if the filtering were conducted by elected members of the authority, that would not make sense. On the other hand, if you had a scrutiny committee with some independent members on—and Camden, incidently, have appointed an entirely independent standards committee and the Bill would not allow that—the initial screening could be done by those independent members. If they thought it could be dealt with locally then it would be given to the standards committee. If it were referred on then so be it. I think it would be worth at least trying that for a period. I cannot see any disadvantage in doing it that way. The Ombudsman was very clear in the hearings that unless there is some sort of screening the system could simply come under strain.
  (Councillor Lord Hanningfield) There will be a lot of frivolous ones. I can think of one where they wanted a lollipop lady in a village and they have not got it. They will use every single way of trying to get it and they will use the new standards committee to try and get it and if you are not careful you will get hundreds of complaints from people who have not been able to achieve what they want through the democratic processes and the financial processes we have got now just making some complaint, although it is not supposed to be on that level at all. It could cost tens of millions of pounds to set it up in the way the national standards committee is set up at the moment with its large bureaucracy and also take years to get through it all and therefore we are saying there should be some local system, even not elected councillors, but local people who could sieve these and send up the ones that are really important for the standards committee to look at.

  Ms Moran: It might be an administrative argument for screening but that could be done separately at a national level as well as other than at the local level. Local government has always been seen as the flagship of probity and standards and so on. Is there not a danger that there will be wide variations in the effectiveness of screening at a local level which might lead to undermining the whole process? I am speaking as one who is generally in favour of devolving to the lowest possible on everything except on standards because I think there is too much at stake on this one.

  Chairman: Before you answer perhaps I could ask Lord Carnarvon to put his point.

Earl of Carnarvon

  146. I imagine that each individual local authority would have its own standing orders so that the standards committee will be adjudicating or acting within the standing orders of the local authority.

  (Councillor Sir Jeremy Beecham) And the national Code of Conduct.

  147. Of course. Just as a matter of interest, on declaring interests, do most local authorities now ask the member to leave the room?

  (Councillor Sir David Williams) They have to do by law.

  148. It is now by law.

  (Councillor Sir David Williams) Unless the committee decides otherwise on a very minor case.

  149. That must be something new since my day.

  (Councillor Sir Jeremy Beecham) This area of declaration of interest is fraught with complexity and it is one of the things that needs to be resolved, as Nolan pointed out, in the new national code.

  150. Is that something that you will be looking at?

  (Councillor Sir Jeremy Beecham) Yes.

Ms Moran

  151. Could I have an answer to my question about variations in scrutiny at a local level?

  (Councillor Sir Jeremy Beecham) It is not impossible that there would be variations, but it is not impossible either for that to occur, for example, in the Ombudsman system now. There are different views taken by Ombudsmen in what seems to be on the face of it similar circumstances. The point is, however, that to fall within the remit of the standards committee or the national body that would be established by the Bill there would have to be a prima facie breach of the Code of Conduct and that will set out those matters because this is what it is concerned with, it is only concerned with conduct at the moment and that would set out the duties of members and it is only if a connection can be made with all of those that the matter should be referred either locally or nationally depending on the gravity. So I cannot really see that in principle it is going to be all that difficult. Conversely, if the thing was handled nationally—I do not know how many people would be recruited for the purpose—they could simply be overloaded. In my own profession and the Chairman's we have had ample experience of massive complaints of an under-resourced national body endeavouring to deal with it. I think you are likely to get a more effective turn around if it begins at local level with screening out things which are obviously capable of being dealt with locally or are deemed to be completely outside the Code.
  (Councillor Lord Hanningfield) That would not be local councils.

Chairman

  152. Can we hear from Mr Gee and Sir David who wanted to add briefly to what has been said.

  (Councillor Gee) First of all, let me make it quite clear that I do support the standards committee and, indeed, we have established it but at the moment are looking for an independent chairman, which I think is extremely important, with the ability to assess the situation and make a decision. I believe that the vast majority of decisions have got to be determined locally and only in very serious cases should they be moved on upwards. I believe that standards committees should be able to tell a member whether they are breaching the Code of Conduct or not. At the moment it is left very much to the member, you make your own decision, and very often it is difficult. Planning was mentioned and I have to say that at the moment even the new rules that are coming in make it extremely difficult. A pecuniary interest or an interest with somebody doing something next door to them is no problem, that is obvious, but there are other ambiguities within the paper at the moment which have got to be determined and have got to be decided on. I shall be following it up through other channels, this particular issue about planning, because I have already had several members on to me saying: "I am now totally confused about the new rules". Essentially I believe that things should be dealt with locally and quickly. Nothing is worse than expecting a member who could be criticised, quite wrongly, to wait weeks or months for the issue to be decided. It must be decided locally wherever possible.

  153. I think we are going to have to adjourn very shortly so, Sir David, did you want to add anything or not?

  (Councillor Sir David Williams) One of the two points that I was going to make Ron Gee has made about the long delay and clouds hanging over members of local authorities. The second point that I just want to respond to is that it is interesting that planning committees, development control committees, are expected to continue and not be subsumed by the executive. The point is that it has been a very open procedure, an open part of local government's business, because it is so contentious and it is so difficult. As all of us who have been on local authorities know, you get the contentious planning application which can be merely somebody's house extension and if you approve it you will upset one person or thousands, if you refuse it you will upset another block of people, so you have to absolutely make sure you do the best you possibly can on the policy framework and so on. Margaret Moran asked a point about whether we are self-adjudicating. Just remember the difference between Members of Parliament and local councillors. When under the former Government the Minister for Corporate Probity was found to be acting for commercial interests improperly he simply went to the back benches; if that happened to a local councillor under the present legislation we could be fined, we could be surcharged, we could be disqualified from office, we could be imprisoned, or any combination of all those four. That is the present legislation. The final point I make about this is that you have to have planning procedures as open as possible, which is what we managed to achieved in Richmond-upon-Thames, under the procedures largely decided by Lady Hamwee when she chaired the planning committee in Richmond, I had a neighbour come to me after a planning application that he was very much against in the road in which I lived, so I took no part in it whatsoever I am glad to say, and he said to me: "I have to say, David, I do not agree with the decision you took but I do admire the procedure you went through". If we can get that with any local government changes we are not doing too badly.

Lord Marlesford

  154. I accept that in the planning process there are very considerable constraints on individual councillors misbehaving and obviously on planning officers as well, but I would remind you of what Nolan particularly said: "We have particular concern about planning gain and about local authorities granting themselves planning permission." That, it seems to me, at the moment is not dealt with in the Bill and I would have thought it ought to be.

  (Councillor Sir Jeremy Beecham) I think it is really a matter for planning legislation, but in practice many such decisions are called in by the Secretary of State.

Mr Burstow

  155. Two things. One, Nolan in the report that has been referred to suggested that there were not many problems and yet then constructed quite an elaborate system to solve those problems. We are now hearing from the evidence today that you are expecting a huge flood of cases. How do we equate these two things, Nolan saying there were not many problems yet putting in place the system and you now saying there is going to be a lot of cases? Secondly, how do you actually guarantee the independence of these independent members on standards committees?

  (Councillor Sir Jeremy Beecham) On the first point, Nolan gave local government a clean bill of health particularly on areas of fraud and detection. However, if he set up a complaints system inviting complaints about members' conduct short of corruption and fraud, which are criminal offences, one should not be surprised because it is the experience of everybody that has done it, from the National Society to the Health Service and others besides, that if you do not get a great many complaints, most of which will on examination be shown not to be valid in terms of disclosing a breach of the national Code of Conduct. If you set up shop you expect passing trade and that will undoubtedly happen. As to how you guarantee the independence, one can go on forever devising appointment systems for independent members of scrutiny committees. What you would need is some guidance produced by the Association and the Department perhaps in conjunction with professional bodies like the Law Society, for example, perhaps establishing panels from such bodies, people who would be willing to serve and making sure that they serve for a limited number of years, three or four years, but this kind of detailed stuff is properly the subject of guidance which we would be happy to embark on discussions with the Government on.

Chairman

  156. What do you think can be done to stop people trying to pursue a complaint through the Auditor, the Standards Commission and the Ombudsman? Do you think there should be some kind of revision of the procedures and some kind of territory staked out? Does local government think there ought to have been a resolution to surcharge procedures before these new procedures came into being?

  (Councillor Sir Jeremy Beecham) We certainly think that the surcharge procedures ought to be changed and the surcharge abolished and a new offence, which I think was foreshadowed in the White Paper, brought into being. I gather the Home Office is now looking at this, so we might expect some resolution in the course of the next 20 years or so! The first question was?

  157. Whether we should do something to avoid people pursuing complaints through umpteen different channels.

  (Councillor Sir Jeremy Beecham) I think it would be wrong to anticipate at this stage. I think we should see how it works first. We certainly want to discuss with the Ombudsman this potential overlap because he is concerned about it. I would not like to rush to a judgment about that without seeing whether our fears are justified and what kind of verbal output there might be. It is an area that I think we will need to return to.
  (Mr Briscoe) The way in which an individual can pursue a complaint to an Ombudsman is only through the authority's complaints procedure and the complaints procedure needs to be exhausted before a case can go to the Ombudsman. The only way in which an individual can pursue a case of audit is after the accounts have been audited and they have a standing in relation to the audited accounts, which is fairly simple and often the cause of frivolous complaint but they are relatively small in number. The problem with this new arrangement is that it will provide for everyone an opportunity to complain about something and connect it with the conduct of a councillor. That makes for a very potentially large number of cases. There is no such thing as a frivolous complaint when you receive it, you have to deal with it sensibly, and that means if there are, as there are in authorities, a very large number of complaints as a matter of normal business, the way in which most of those complaints are resolved is by gradually working through the authority's complaints procedure and settling the matter with the complainant in one way or another and finally a small tip of the iceberg gets to the Ombudsman. It is that kind of mechanism that we believe would be a more sensible use of the resources than one large national machine to deal with what could be a very, very large number of cases. Authorities will, of course, always have a monitoring officer and if we have an established Code of Conduct for every authority based on a national code then it ought to be possible to describe fairly carefully what is a breach of the Code and for the monitoring officer in the authority to give advice to the independent members of the standards committee as to what action it would be appropriate for them to take. There would still be the opportunity for that matter, if it was not resolved satisfactorily, to go on to some national procedure but at least you would be filtering out perhaps some of the more frivolous and vexatious complaints which undoubtedly can occur in political organisations.

Earl of Carnarvon

  158. On officer recommendations, publishing officer recommendations, you were a little ambiguous. Perhaps it would be kinder to say that you were leaving it to the local authority. Is that really right? Ought you not to come out and say: "yes, we think officer recommendations should be published", particularly in planning applications or perhaps regarding children's homes where it might be different? It seems to me that officer recommendations should be available to the public.

  (Councillor Sir Jeremy Beecham) This is a personal view and it is not an Association view. I do tend to that view certainly in relation to planning recommendations, I think that is an important consideration. I think our Association's position is that it ought to be left to local discretion but I think many of us would wish to exercise that discretion in the way that I have described, that of providing the information.

Lord Marlesford

  159. Why do you think it should be left to local discretion?

  (Councillor Sir Jeremy Beecham) I think in general we are in favour of leaving matters to local discretion. Personally I would rather that recommendations were made available. I cannot at this stage speak for the Association.

Earl of Carnarvon

  160. Has SOLACE come out on this one in any way?

  (Mr Briscoe) SOLACE has a view about the giving of advice. The White Paper actually suggests that in some of the models, particularly the directly elected mayor model, it would be possible for officers to give advice in private, and indeed presumably it would be possible for elected mayors to have advice other than that that would normally come from the impartial part of local government and that would be in private. That is what the model envisages. It is similar in that respect to the Whitehall and Westminster model. I think there may be a debate about that and it is not appropriate for an officer to give an opinion on that, other than to say—
  (Councillor Lord Hanningfield) Just say it is your recommendation then.
  (Mr Briscoe) Other than to say that if the system is to work effectively and have public confidence then I suspect that it will not be helpful for advice to be given in private and locked away for 30 years.

  Earl of Carnarvon: I could not agree more.

  Chairman: May I thank you, Sir Jeremy, and your colleagues for attending the Joint Committee. Thank you for bearing with all of our questions and giving us so much time, we are very grateful.







 
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