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

Examination of Witnesses (Questions 480 - 501)



  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 our ambit.

  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.

Mr Burstow

  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 been.

Mr Smith

  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, for politicians.

Lord Marlesford

  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, no.

  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 referring to.

  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 unnecessarily.

  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.

Lord Ponsonby

  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 Paper—directly elected mayor and cabinet, cabinet and leader, directly elected mayor and council manager—and 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.

Mr Pike

  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 inevitably.

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 next witnesses.

  Earl of Carnarvon: "No comment" is the answer.

  Chairman: Thank you very much for coming and for answering our questions.

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