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


Examination of Witnesses (Questions 460 - 479)

TUESDAY 6 JULY 1999

MRS PATRICIA THOMAS, MR DAVID NICE AND MR ELWYN MOSELEY

Earl of Carnarvon

  459. On that last point, you get some local authorities, some of which we have visited already, a single-party local authority with no independents, so the executive committee would be one party, the scrutiny committee would be the same party and the standards committee would come from the same party.

  (Mrs Thomas) There are no provisions for the independent members to be from outside the council altogether? I am sorry, I do not know whether that is there or not.

  Earl of Carnarvon: That is just on that one point.

Mr Gray

  460. Before we leave that point, which is important, there is no provision for somebody to be from outside. That is the purpose of my question, that if it is, let us be generous, a Conservative-controlled council, a Conservative-controlled scrutiny committee, a Conservative-controlled cabinet and a Conservative-controlled standards committee, in your view as the Ombudsman is that a healthy situation from the point of view of scrutinising what the council is getting up to?

  (Mrs Thomas) I can understand that people would be suspicious of the operation of such a committee. I however believe that it is right to give councils a chance to sort out their problems themselves first before you go to an independent external body. It is important, however, to have that independent external body and the Bill does make provision for that.

  461. But if a case comes to you from an overwhelmingly dominated council of that kind, would you view it differently from a case where, for example, the council is controlled by the Labour Party but the standards committee is controlled by the Conservative Party? Would you not view that as being a healthier situation than all of them being dominated by one party, and would your consideration of the case be different depending on the individual circumstances of the council?

  (Mrs Thomas) Yes. I have had my attention drawn to the fact that the copy of the Bill that we have at least says that the standards committees should have at least one person who is not a member of the authority.

Chairman

  462. That is the standards committee, not the scrutiny committee.

  (Mrs Thomas) I am sorry, I was confusing the two.

  Chairman: Lord Carnarvon, could you perhaps continue with the questions, please.

Earl of Carnarvon

  463. The main question, just adding to Mr Gray's point, is on the agenda of the executive committee which you mentioned, Mrs Thomas, and, as I am sure you know, most executive committees would be dealing with problems of officer appointments, of decisions about staff and they would not normally be available to the public. Discussions about early-on procedures about buying property or about planning terms could not possibly have the public there, so there would be, I would hope, something like we had in Hampshire which was a white paper which was open to the public and a pink paper which dealt with problems which affected staff or purchase or sales which were not in the public domain. Do you see this being able to continue with the present situation?

  (Mrs Thomas) I would have expected that that would be normal practice because there are clearly issues which are confidential at early stages.

  464. The agenda for the council meeting would go out early and that I can understand and would be available to the public. On a totally different subject, how do you envisage any particular problems arising with the directly elected mayor from your point of view? Do you see this as a problem at all as far as you are concerned? Do you think that there will be many more complaints because there is one person to attach the complaints to?

  (Mrs Thomas) I think this is the point which Mr Moseley was making earlier, that we need to have an audit trail of decisions because our jurisdiction relates to complaints that people have suffered injustice, so it depends to what extent the mayor is making decisions on individual cases. Most of our complaints in this area would be housing and planning decisions and planning decisions may well be taken by a committee still. It may well be that at the beginning at least there would be more complaints, but so long as decisions are properly taken, I do not see that it would matter who takes those decisions.
  (Mr Moseley) It seems to me that it would be important that if there is to be an adequate audit trail it should consist not only of a record of the decision, but a record of the advice and the recommendations, say, from professional officers on which the decision was based, and if the decision departs from professional advice, for example, that there is a record of the reasons why the advice was rejected or why there was a departure from policy, for example, and provided those kinds of safeguards are incorporated, it seems to me that the system could work.

Dr Whitehead

  465. My understanding of the way the system works is that allegations of a breach of the code of conduct to be published by the local authority would be referred in the first instance to the independent Standards Board which is a national body which would then either allocate that complaint to the standards committee of the local authority, which will have at least one independent member on it, or it will deal with the issues, if it is considered sufficiently serious, itself and will produce a report. Your concern, as far as I understand it, is about how material comes before the Standards Board and hence the standards committee in the first instance and the extent to which there may be a possibility that local authorities are perpetually, as it were, under investigation when those complaints may clearly be vexatious or frivolous. Is that right?

  (Mrs Thomas) No, not entirely. I must admit I had not understood that that would be the process. It would seem to me that the complaint would go to the Standards Board and the Standards Board would allocate it to an officer who would then decide whether there was anything in it or not and might, having investigated it, refer it back to the standards committee. I had not understood that the idea was that the standards committee would itself deal with the investigation rather than the Standards Board, but maybe that is something else where if the Bill is leading to two different interpretations between us, then that in itself is a worry.

  466. I am referring to a page in the Bill which states that a written allegation goes to the Standards Board which is a national body which allocates cases to an ethical standards officer who registers the case to be investigated and it may be referred to the local authority standards committee or it may be referred to the Standards Board. It then says that the ESO then produces a report and the report then may be referred to the standards committee to deal with the consequences of the report or, again depending on the severity of the breach, the Standards Board may set up the Adjudication Panel presumably to judge on what the penalty should be. Now, certainly my concern, and I suspect your concern, relates to the written allegation that appears in the first instance and certainly a worry I would have is that, as you have pointed out I thought very succinctly, in your work you have, as it were, a filter mechanism which can state clearly that someone is pursuing a vendetta or has no grounds whatsoever for their allegation or whatever and can, therefore, be set aside. My question is that as things appear to stand in the Bill as it stands at the moment, any written allegation needs then to be taken up by the Standards Board and distributed either to itself, as it were, or back to the local authority and there is no filter mechanism. Now, assuming there were, how would one properly judge that filter mechanism? I can imagine cases where people would believe they have a grievance where that grievance was then not even taken in front of the Standards Board and they would then make a great fuss about that and say that they have been unjustly treated, but the alternative is that a series of councillors may be under a continual cloud of suspicion with no substance and these would keep on turning up.

  (Mrs Thomas) One possibility would be to say that the standards committee shall always have the opportunity to deal with the complaint first, but there are other possibilities.
  (Mr Moseley) As ombudsmen, at the moment we have very wide discretion. The Local Government Act, which gives us our jurisdiction, gives us an unfettered discretion to undertake an investigation and publish a report or not and it seems to me that the Standards Board should have a similar kind of discretion so that it can judge in particular instances whether, for example, to publish a report or not. The Bill at present obliges the ethical standards officer to publish a report irrespective of whether the ethical standards officer believes that there is any substance to the allegation or not and a summary of that report, as I understand it, has to be published in the press. Now, it seems to me that that could lead to a situation that even the most scurrilous of allegations or the most unfounded allegation could lead to a report and the ethical standards officer might feel obliged to carry out a full investigation and a summary of it published in the press, whereas if the legislation was framed as ours is, we would have that discretion, it seems to me, and hopefully solve the problem that you refer to.

  467. I think that is very helpful and I think the particular concern I have is judging the point at which a complainant can feel that their complaint has been properly dealt with or that it has been demonstrated also properly to have been vexatious and frivolous. The question in my mind is as to whether the combination of the Standards Board, the procedure whereby that is set up and carried out, possibly with what you are suggesting as part of its function, together with the independent member of the standards committee, is sufficient to ensure that that procedure can be defended, ie, we are not bringing forward a whole new area whereby people are alleging vast conspiracies on the part of everybody concerned to deny them justice by blocking the process of investigation?

  (Mr Moseley) I think it is fair to say that ombudsmen certainly in my case face the situation sometimes where a complainant who strongly believes in some conspiracy theory is not satisfied merely because the ombudsman says, "There is nothing in this allegation and I do not propose to publish a report". I am not sure that you will ever overcome that problem in every case. Hopefully, the fact that there is an independent body with a certain status who says that to the complainant or to the person who is making the allegation would be sufficient, but I do not think you will always satisfy everyone who makes an allegation about somebody in public life that the matter has been thoroughly investigated and there is absolutely no substance in the allegation.

  Chairman: Can we move on.

  Earl of Carnarvon: Could I follow up Dr Whitehead on one point. Are you talking about the Standards Board or the standards committee?

  Dr Whitehead: There are both. My understanding is that the Standards Board is the national body; the standards committee is something set up by the individual local authorities, which must have one independent member on it.

  Earl of Carnarvon: Yes, but it only deals with members of the local authority, not members of the public.

  Dr Whitehead: No, the members of the public have to submit a written allegation which, in the first instance, goes through the Standards Board and is then distributed either nationally, if it is a sufficiently serious allegation, or locally, if there is a particular allegation which it is felt the standards committee locally can deal with. That is my understanding.

  Earl of Carnarvon: But it is very often not a member of the public who is finding out by some means something that has gone wrong with a member of the local authority who is usurping various rules and regulations of the local authority. It is an internal matter, it seems to me, reading paragraph 30 on page 19, promoting and maintaining a higher standard of conduct by the authority, assisting members of the authority to observe the authority's code of conduct, advising the authority on adoption or revision of the code of conduct, monitoring the authority's code of conduct, arranging to train members of the local authority on the code of conduct, and nothing to do with members of the public at all. I think the Standards Board would be the middle stage before going to the ombudsman, one would imagine.

Chairman

  468. I think that raises another question.

  (Mrs Thomas) Yes, exactly.

Mr Pike

  469. Mrs Thomas, I have one of my constituents who writes to me at least three times every week and quotes what you said to him on one occasion but we will not go into that today. In looking at your work, and recognising that over half this Bill deals with the particular standards issue, are you able to tell us of the ones that you do look at and also those that do not go through to an actual investigation, how many do you believe will have a change of route once this Bill is passed? Obviously there is maladministration, which is perhaps incompetence and other factors but is not corrupt or involving any fraud, and then there is fraud and corruption and they are very different issues. They are all of concern, I am not dismissing them, but they are very different. Are you able to give us some indication of just how big a problem we are really looking at in local government?

  (Mrs Thomas) We have in England about 60 to 70 complaints a year alleging breaches of the code and I checked my own figures and I issued, I think, three reports in the last year. We think it is about 15 per cent. of those complaints make justified allegations. I think there would be more but that is just a feel. I think if you have the structure that the Bill is proposing, it is really inviting people for all sorts of ends, political and other ends, to make these allegations. We can only take complaints where a person is alleging injustice, so, as I said earlier, it tends to be planning, that a member of the planning committee should not have participated in the approval of their next-door neighbour's development or whatever.

  470. How many against officers?

  (Mrs Thomas) Not very many. I think most councils seem to have codes which enable them to have these matters dealt with by other officers and not the ones who may have had an interest. This is one of our difficulties. It may just be that complainants are not aware of any potential interest, but that is the difficulty for ombudsmen, that we are recipients of complaints; we are not initiators.

  Mr Pike: Could I ask you a very simple question. Obviously the whole procedure of why we are looking at it in this type of format is to try and look at a draft Bill before we have an actual Bill to see if there are flaws in the legislation. Both ombudsmen have an area of expertise in dealing with certain cases and have done for a number of years. If this were your Bill rather than the Government's Bill, do you see bits of it that you feel could be improved to deal more effectively with some of the types of issues that we have been looking at this afternoon and which are contained within the draft Bill?

Sir Paul Beresford

  471. Before you answer that, on the same line, is this Bill going to make it better or what we have now, from your point of view, works quite adequately or is subtly changed to work without a full-blown Bill?

  (Mrs Thomas) We are concerned with members of the public who have suffered some sort of injustice, alleged. We are not policing the present statute. We are simply looking at it, interpreting it, in particular circumstances that are brought to our attention. The Bill seeks to do something very different from that and we are not concerned with punishing councillors. That is not our function. Our function is to get a remedy for a complainant and we would not want to be involved in the disciplining of councillors. That is not what we see our role as being. The Bill is concerned to fill that void, because at the moment a council, even if it wants to, has no power to do anything about a councillor who is continually in breach.

Earl of Carnarvon

  472. But standing orders have powers to prevent councillors from coming to committee meetings?

  (Mrs Thomas) They are not used, in my experience.

  473. They have certainly been used.

  (Mrs Thomas) They cannot be suspended and they cannot be disqualified at present, and I have examples of councillors who continually participate in decision-making, even though I have criticised them.

Chairman

  474. Could we ask Mrs Thomas whether she could let us have some evidenced of the number of cases in which that has taken place because I think some Members of the Committee might be quite surprised to hear what you say?

  (Mrs Thomas) I think we would need to do some research on that. It is not a large number, it would be a very small number, but certainly in one case I have issued three reports concerning a particular councillor who participated in a decision.

  Chairman: We must try and move on.

Lord Marlesford

  475. I would like to stick with planning, if I may, and I would like to emphasise from Lord Nolan's Report on Standards in Local Government, the 1997 Report, one bit of it: "Planning is probably the most contentious matter with which local government deals and is the one on which we have received by far the most submissions from members of the public. We have no doubt there have been serious abuses of the planning process. We also believe that local authorities should examine how their planning processes match up to standards of best practice that we have drawn from a variety of individual councillors, and members of planning committees should be trained in planning procedures and planning law." And finally: "We have particular concerns about planning gain and about local authorities granting themselves planning permission." In the White Paper there is remarkably little about planning. There is a little bit in figure 11 on page 29 and a further reference. Do you not believe that if this Bill is being brought forward under the flag of standards, this is an opportunity of improving greatly the sort of things that Lord Nolan was getting at, and can you suggest ways in which this might be done?

  (Mrs Thomas) In my experience there is very little corruption, if this is the implication there, in planning. One comes across instances of it but in most cases I think planning officers are very professional in the way they operate and most planning committees, at least in my area, receive a great deal of training. Certainly I and my officers have participated in training members and it does seem to me it is a matter of providing appropriate training for them. I would be worried if planning decisions could be made in private under a new structure. I think at the moment it is fairly open and I have no very strong views about proposals for improving the system that this Bill could do. I do not know whether you have.
  (Mr Moseley) Yes. In my written memorandum I tried to outline the position in Wales at the moment. I have issued approximately 24 reports finding breaches of the code over eight years and that is an average of three a year, compared to an average of about 1,000 complaints a year, so that places it in proportion, I hope, but a significant number of those complaints relate to planning issues and I certainly do not think you can divorce conduct from the framework within which a function is administered. I refer in my evidence to the report of the Welsh Affairs Committee of the House of Commons on planning problems in rural Wales in 1992-93 and that led to the then Secretary State making a number of recommendations about practice and Nolan, in the report on conduct in public life, reflects some of those in the recommendations on good planning practice. It seems to me that the adoption of those principles of good planning practice could go hand in hand with conduct. For example, many of the planning cases involved the lack of a written report from a professional officer making clear recommendations, a lack of references to the statutory development plans, arbitrary decisions made on planning without reasons being given. Now, in a framework which obliges authorities to receive written reports and to give reasons for departing from professional recommendations, it seems to me in that kind of process abuse is less likely or at least made less easy, so whether necessarily a code of good planning practice needs to be referred to in this Bill is a separate issue, but certainly I think there should be a code recommended by the Government which should be adopted by the local authorities.

  476. In recommendation 38, Lord Nolan says, for example, "The Government should require authorities to notify the appropriate Secretary of State of all planning applications in which they have an interest either in the development or in the land either where the proposed development is contrary to the local plan or has given rise to a level of objections regarded by the appropriate Secretary of State as substantial". That is a recommendation which has not yet been enacted and, as far as I can see, it is still not in the Bill. Do you not think it should be in the Bill, otherwise what is the point of Lord Nolan making this report and recommendations?

  (Mrs Thomas) This is certainly an area where a lot of people do get extremely worried and at the moment local authorities have to make decisions on their own applications because there is no other body to do it and this would remove some of the concerns that the public have if it had to go outside that particular council.

Earl of Carnarvon

  477. On that very point, Mrs Thomas or Mr Moseley, the ones that have come up, your three, are they development control problems dealt with by district councils or are they strategic planning points?

  (Mr Moseley) All the local authorities in Wales since 1996 are unitary authorities. The problems have diminished since that reorganisation and prior to reorganisation the problems tended to feature development, say, in rural areas on the lines of the problems in north Cornwall, for example, which led to a particular inquiry in England.

  478. Does that apply to England? Have you had any complaints against a strategic planning decisions?

  (Mrs Thomas) Most of the complaints are individual and they are very much about individual planning decisions.

Lord Marlesford

  479. Can you take a complaint, for example, from an individual or a group of individuals against a planning decision by a local authority on a matter affecting its own land for its own financial gain?

  (Mrs Thomas) Yes, if the people making a complaint can show that they have suffered injustice.


 
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