Examination of Witnesses (Questions 480
TUESDAY 6 JULY 1999
480. Only in that case?
(Mrs Thomas) Yes.
481. For example, if it was contrary to public
policy or was otherwise inappropriate?
(Mrs Thomas) No, but, for example, we
would take a complaint from, say, a civic trust because we would
see that group as having an interest in the standards of development.
That is not necessarily the issue you are talking about, but generally,
we could accept a complaint from Friends of the Earth about a
planning approval in relation to a nuclear power station, something
of that kind, because their interest is in the strategic issue,
if you like, but we need to have a complainant who can demonstrate
that much interest in it with injustice.
Lord Bassam of Brighton
482. It seems to me that the ombudsman's task
is very much to hold in check probity of process and protect the
public against maladministration. I think that summarises your
work. What I want to find out from you is how confident you are
that the proposals contained in the draft Bill will continue to
protect the public in terms of probity and process preventing
maladministration, and I am thinking in particular of the separation
of powers which is envisaged in the legislation where you have
an executive and you have scrutiny functions because it does seem
to me that there is potentially a growth area for you to be called
in to investigate whether those processes are sufficiently robust
or not in particular local authorities to protect the public from
a failure of probity.
(Mrs Thomas) I think we would be worried,
yes, because it is all a matter of how open the authority is in
its decision-making and if it is not clear how decisions are being
made, we will probably get an increase in complaints, but we will
only get them by individuals affected by those decisions. If they
are strategic policy decisions, they are not likely to come within
483. What further measures could we consider
building into the draft legislation which might go some way to
addressing that issue?
(Mrs Thomas) I think we come back to
what we have been saying, that there should be provision for proper
documentation prior to decisions being made with recommendations,
pros and cons.
484. A statement of reasons?
(Mrs Thomas) Certainly, but that is afterwards
and there should be a briefing before which is open to the public.
485. My understanding certainly from my reading
of the draft legislation is that it suggests that the new procedures
are going to be subject to the Public Bodies (Admission to Meetings)
Act 1960 and I do not see an exemption there, so I see no reason
why that should not apply to cabinet and executive structures.
(Mrs Thomas) That may be the case, yes.
486. I want first to pick up where you have
just left off and say that if it is possible, it would be very
helpful perhaps to have a further memorandum which actually specifically
identifies the minimum standards that ought to be applied in such
an audit trail when it comes to advice, decisions and reasons
and those being recorded. That would be very helpful to us because
clearly it is a very important part of the evidence you have given
to us today. I want to move on to the paper which we have today
from you, Mrs Thomas, which refers in paragraph 11 to the introduction
into the national model code of the test of "real danger
of bias". I must confess I have read this paragraph a few
times and it would help me understand it if you were able to exemplify
what you meant and give a concrete example of how this might work
in a way which would be disadvantageous to the public.
(Mrs Thomas) The real danger of bias
is the test the courts apply in order to invalidate decisions,
so a decision would be void if the court was satisfied that there
was danger of bias. It seems to me that the idea of a code of
conduct is to go beyond that, to say that there may not be real
bias, but you should conduct yourselves in a way that should create
no suspicion of bias either. Where the line is drawn I think is
very much a matter for the new code. The present code is very
much stricter for councillors than this would be. The present
code says that if a member of the public would think that you
might be influenced, you must not participate at all, which is
much, much further than the real danger of bias test would go.
We are very worried that if that wording was used, in fact it
would allow for conduct which at present we think is in breach
of the code.
487. My other question again relates to another
of the paragraphs in the submission and in this case paragraph
15 which is the suggestion that whereas at the moment some members
might be precluded from voting at a committee, they might still
be able to address the committee and the argument that you advance
is that members can be quite persuasive and influential just by
dint of being there and expressing their opinion. I wonder, however,
whether or not you would still accept that there are circumstances
such as ones in which members for a particular ward might have
a representation duty to discharge on behalf of constituents in
a planning matter, but might be under the tighter rules that you
would wish to see introduced and be prevented from discharging
their representation role, so where would you strike a balance?
(Mrs Thomas) The present code would say
if they had a personal interest they must not participate regardless
of the representational aspect of it. It seems to me this is a
matter for the new code to say where the line is to be drawn.
Earl of Carnarvon
488. That is why you want a national code?
(Mrs Thomas) Yes, this is why we think
there are certain standards which should be national but individual
aspects of it could be developed by local authorities, but I think
where the code is particularly difficult at the moment is where
members are wearing two public hats. I do not think there is really
great difficulty where they have a personal or private interest.
It is a question of degree there, but where they are perhaps a
parish councillor as well as a district councillor, the code should
then make it clearer whether they can or cannot participate. I
think it is not for us to say where the line should be drawn but
everybody would benefit if the line were clearer and councillors
were given much clearer advice.
489. Would that also extend to the point of
saying the Secretary of State would not be able to grant dispensations?
Is that what you are saying?
(Mrs Thomas) That relates to pecuniary
interests where it is a criminal offence to participate without
dispensation. The code, is basically non-criminal. Yes,
I think the Secretary of State perhaps has sometimes been more
generous in granting dispensations than perhaps he should have
490. In the National Assembly for Wales, a conscious
decision was taken that the executive should work much more closely
with the scrutiny committees. In fact, members of the executive
can be members of the scrutiny committees. Do you think that similar
provision for closer working should exist in the Bill generally
and/or in Wales?
(Mr Moseley) The local authorities inevitably
are going to be smaller bodies on the whole than the Assembly
and the civil service which serves the Assembly, and as corporate
bodies it is going to be very difficult, it seems to me, entirely
to divorce the two sides, the executive and the scrutiny side
of the activity. So inevitably they are going to have to work
fairly closely together. Someone mentioned earlier the problems
that arise when there is one-party control. Certainly in my experience
where one party dominates a local authority that creates its own
problems if there is no effective opposition. Likewise, it seems
to me that if the executive has no-one to scrutinise it, no careful
scrutiny, that in itself could create problems not dissimilar
from total one-party control.
491. This point has come up a number of times
already, about one-party domination on local authorities and,
of course, we have a competing party system. Do you think there
should be any provision, not so much for members of the public
but members of these political parties to be able to make complaints
and to whistle-blow, because I think there are dangers that through
party discipline and/or misplaced loyalty things go unsaid perhaps
just because there is not a mechanism for councillors to be able
to complain without fear of retribution. I just wondered whether,
in your experience, you have a view on this?
(Mr Moseley) I think that is quite an
important point because in practice the investigation of allegations
of breaches of the code at the moment tend to concentrate on what
some councillors will maintain are purely technical breaches.
The current code, for example, obliges a councillor to declare
an interest at a formal meeting at which he is present and if
he does not declare his interest, he breaches the code, and they
are fairly easy investigations to undertake because there are
minutes which will record whether the councillor was present and
whether or not he declared his interest. What is not so easy to
investigate is the allegation that the member concerned has influenced
the decision behind the scenes, although that is against the principles
of the code. What I found is at the end of the day you rely on
a whistle-blower, whether it be an employee or, indeed, a member
of a political party, and in one or two instances the member of
that political party has been able to reveal information which
has been crucial and which would not otherwise be easily obtainable
or publicly available. So in the same way as there is virtue in
having a scheme for employees who are whistle-blowers, likewise
there is a case, as an instant reaction to the question, for members,
492. May I follow that up. It is a very important
point. On the audit trail, is there at present a requirement for
either councillors or officers of the council to record any meeting
on an informal basis they may have with a developer?
(Mr Moseley) There is no obligation,
493. So if you were investigating something
and you were looking for the trail, that would be a lacuna in
the trail if it happened?
(Mr Moseley) Yes. I certainly say to
authorities that proper notes should be kept of such meetings,
and I might even, if I did not say it was maladministration, say
it would be good administration to keep such a record and the
lack of such a record creates the kind of problem that you are
494. So would you suggest that it should be
an obligation, perhaps a statutory obligation under this legislation,
that once a development application is made, anyone on a council
who is concerned, or likely to be concerned, with the consideration
of this application, whether it be a salaried official, an officer,
or a councillor, should be required to keep a note of any discussions
he or she may have with the developer or the developer's representative?
(Mr Moseley) They should certainly be
encouraged as a matter of good practice, say in a code of good
planning practice. I would emphasise that it is not so much, in
my experience, because there might otherwise be some impropriety
but it unnecessarily creates suspicion and it seems to me that
if confidence in public services is to be maintained, it is important
to have systems which avoid generating that kind of suspicion
Lord Marlesford: Quite honestly, when you say
you have not come across any cases of corruption from the sources
of information that appear to be open to you, would you expect
to come across them, because they would be concealed? Lord Nolan
does seem to regard this as an important issue which does not
seem to be addressed in legislation and which the present procedures
do not enable you to investigate.
495. I want to continue on the line of Lord
Bassam and really ask you if you could say something about your
views on the various models which are proposed in the White Paperdirectly
elected mayor and cabinet, cabinet and leader, directly elected
mayor and council managerand whether you think any of those
models may be more or less open to some form of corruption or
abuse or lack of proper accountability, and whether you have any
views on which of those models is better or worse from that point
of view than the current system?
(Mr Moseley) I have no views which would
carry more weight with the Committee than anyone else's view as
to the different models. All of them should be subject to this
requirement of openness and in particular openness so far as the
advanced process in advance of making a decision is concerned,
but as between the different models, they are all equally vulnerable
to the disadvantages of decisions behind closed doors. Those disadvantages,
it seems to me, can be overcome provided there are these procedures
whereby advice is given in writing and reasons are recorded as
to why advice is not followed. I am not sure that I can help the
Committee much more than that really.
496. In paragraph 17 you indicate that the process
in the draft Bill is complex and may be at odds with the expectation
that complaints will be decided quickly. Now, I accept that and
I do not think anyone wants to see complaints go on for an indeterminate
period. How do you see that that could be speeded up? What could
be done in the Bill to make the process quicker? The second point
is that you have devoted a lot of this afternoon understandably
to planning issues, but if planning is done in the way that you
envisage in the new Bill, would you envisage any change in the
procedure for planning appeals which at the moment seem one-sided
in that the applicant can appeal if they do not get it, but if
we are going to see it all in the open with reasons written down,
given and everything, do you think there should be any change
or should there be an appeal the other way which would obviously
slow things down a lot?
(Mrs Thomas) If I can take the second
point first, our work would be reduced if there were an appeal
available to a planning objector. That would remove quite a bit
of work in our office. I do not express a view whether there should
be an appeal, but that would certainly affect our workloads. I
think a lot of the complaints we get from members of the public
are because they do not understand the planning process and they
are suspicious that things are allowed because they do not understand
that there is in fact a presumption of approval and they think
that they have as much right to object and have their views taken
account of as the applicant making the application, whereas there
are of course guidelines and policies available under which it
is very difficult sometimes to refuse an application, and people
always suspect the worst and they assume that the decision has
been taken for the wrong reasons. In a few cases they are right,
but in an awful lot of them we explain to them the process and
I think if it were in fact a proper hearing between applicants
and objectors at first instance with an appeal for either side,
then that would be a completely different structure and I do not
think that is a matter for me or for this Bill at the moment.
To go back to your first question, I think we are back with what
we have been saying all along, that if you can get rid of the
trivial, the vexatious, the ones which have no merit, then that
gives time to deal with the ones that are of substance properly.
We have found in our own office that if we can fast-track the
ones that are not going anywhere, that leaves time to deal with
the more serious ones and we have been able to bring our times
down from what was far too long to a very reasonable period now
and we are a bit happier with our own times. I can see the problems
that the Standards Board would have if it does not have some way
of saying, "These really are not going anywhere, so let's
get rid of them quickly so that we can then deal with the ones
that actually need looking into more thoroughly".
497. You are really saying to us that if the
Bill does not include something that allows screening, we could
be creating a major problem of work?
(Mrs Thomas) I think you could end up
with thousands of complaints coming in, all of which have to be
dealt with through this complex process.
498. Do you see any conflict between the proposed
Standards Board and their jurisdiction and yours, given that in
certain circumstances you can find maladministration where a member
has been guilty of a breach of the code of conduct? Are we going
to have the same complaint pursued in both tracks and are we going
to get the same answer from both organisations?
(Mrs Thomas) We are worried about that
Earl of Carnarvon
499. I am worried about that too.
(Mrs Thomas) I think there is a major
problem there, that we will receive a complaint from somebody
which it is our statutory duty to deal with and it may be an allegation
of a breach of the code and we will by law have to deal with that
complaint and we might investigate and come to a view, but there
might also be a complaint to the Standards Board which may also
decide to investigate. What I would hope would be that if we are
going along this road, there would be provision in the legislation
for us to co-operate and to talk together and work together on
it because if there is not, it could be absolutely chaotic.
500. Am I right in thinking that one of the
strongest points you are making is that you think there should
be a national code of conduct? I know the Government at the moment
have not recommended one, but it seems to me that there must be
one, otherwise you have complete chaos with different codes of
conduct around the country.
(Mrs Thomas) It is our view that there
should be, yes.
(Mr Moseley) If I may make the point on time, one
of my concerns is clarification as to the status of the ethical
standards officer's report because at the moment the Bill envisages
the ethical standards officer, as I see it, undertaking an investigation
very much like the ombudsman and producing at the end of the day,
after his investigation, a report. If that goes to the Adjudication
Panel, is there a complete rehearing of the evidence? What of
the complainant who certainly in the case of an ombudsman's investigation
is guaranteed anonymity? Is Mrs Jones who is complaining that
the chairman of the housing committee is allocating all the council
houses to his family, is she going to be cross-examined in public
about her complaint because at the moment the ombudsman must not
identify her in his report? It is the relationship between the
ethical standards officer's investigation and the public hearing
before the Board and keeping a balance between the efficiency
of the investigation and the length of the investigation and fairness
to the councillor who is in peril of being disqualified from office.
501. I have one last question which is something
which we will be discussing no doubt with our next witnesses and
that is do you see a problem which I envisage in the staffing
of the executive committee and the scrutiny committee having two
different officers advising them? The officer advising the executive
committee should not, as I read it, be the same officer as advising
the scrutiny committee.
(Mrs Thomas) I was not aware of that
provision, I am afraid.
Earl of Carnarvon: It is in the papers, as far
as I read it, so you can have a sort of Chinese wall between the
executive and the scrutiny committees and they could, as we have
talked about, be in the same party and be advised by two different
people, whether the decision is made by the chief executive of
a local authority who tells the deputy, "You say exactly
the same as I say", but on paper it looks as if they are
two separate officers advising two committees which I cannot see
would make for good governance.
Chairman: Perhaps we can pursue this with our
Earl of Carnarvon: "No comment" is
Chairman: Thank you very much for coming and
for answering our questions.