Examination of Witnesses (Questions 460
TUESDAY 6 JULY 1999
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
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.
462. That is the standards committee, not the
(Mrs Thomas) I am sorry, I was confusing
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
(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.
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
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.
468. I think that raises another question.
(Mrs Thomas) Yes, exactly.
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
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.
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
Chairman: We must try and move on.
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
(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.
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.