Mechanisms of Complaint: Standards
Committee, Standards Board and Adjudication Panel
227. The bill sets up an elaborate structure for
securing observance of the Code of Conduct. In line with the recommendation
of the Nolan Committee on Standards in Public Life, each authority
must establish a standards committee of at least three members,
one of whom is to be not a member of the authority and, where
executive arrangements apply, the committee may include one member
of the executive. The functions of the committee are to promote
the observance of high standards and the authority's code of conduct,
and to consider complaints referred to it by the Standards Board.
The White Paper envisages that the standards committee will receive
support from the authority's monitoring officer.
228. All investigation of complaints of breach of
the code will be undertaken by the Standards Board for England
and Standards Board for Wales, bodies corporate appointed by the
Secretary of State/National Assembly. The Boards will mostly be
composed of ethical standards officers (ESOs) to whom any allegation
will be assigned for investigation. Provisions set out the procedure
for investigations, the right of access to persons and papers,
and the right of the person investigated to comment on the allegation
made. Failure to provide information can result in a fine. An
investigation may decide that there is no evidence of a breach
of the code; that there is no need to take action (whether or
not the code was breached); that the matter should be referred
to the local standards committee to be dealt with; or that a report
should be made to the Adjudication Panel for determination.
229. The ESO must produce a report and send it to
the local standards committee, the subject of the investigation
and, as appropriate, the Adjudication Panel for determination;
where no breach has taken place or where no action is required,
a summary of the report is to be published in the local press.
The ESO may issue an interim report suspending the person being
investigated, if in the public interest, for up to six months
pending determination by the Adjudication Panel, and distribute
it as above. The local authority must comply. An appeal lies to
the High Court against such a suspension.
230. The bill establishes Adjudication Panels for
England and Wales for the purpose of separating adjudication of
cases involving breaches of the code from the investigative role
of the Standards Boards. For the purposes of adjudication on matters
referred by the Standards Boards, case panels will be set up by
the Chairman from amongst the Adjudication Panel membership. The
person being investigated may appear before a Case Panel in person
or be represented. Failure to assist in an inquiry can result
in a fine.
231. The Case Panel must adjudicate in each case
whether or not the Code of Conduct has been complied with. Where
a person is found not to have complied, the relevant local standards
committee must be informed; the person may be suspended from being
a member of the authority for up to one year, or disqualified
for up to five years. The local authority must comply with the
decision of the Case Panel. The Standards Board and the subject
of investigation must be informed and the notice of decision published
in the local press. An appeal against the decision lies to the
232. As officials explained to us, this investigative
structure has in large measure been devised to implement findings
of the Nolan Committee which recommended statutory codes, standards
committees in local authorities, and independent national tribunals
to hear appeals from local standards committees.
On the whole, witnesses approved the system put in place by this
part of the bill. They were content with the establishment of
the local standards committees and with the removal of investigating
and adjudicating functions into nationally constituted arenas.
But there were fears that the system might prove too elaborate
and cumbersome and vulnerable to the vexatious complainant; a
view that more use could be made of local standards committees
generally; a fear of overlap with other "jurisdictions";
and even a sense amongst some that proceedings might not always
be entirely fair to councillors under investigation. With these
principal concerns in mind, we turn first to the local standards
233. Witnesses undoubtedly felt that the provisions
relating to local standards committees were the weakest part of
the enforcement system. It was felt that the provisions on membership
were unsatisfactory. ACSeS felt that members of the executive
should not sit or at least not vote on the committee, especially
in dealing with complaints of breaches of the code by the executive;
and that member substitution should be expressly forbidden.
The Civic Trust thought that "both its role and membership
are far too narrowly drawn. Too much is proposed for the National
Standards Board, reflecting the over-centralising tendencies of
the whole set of proposals. It would be much more effective to
devolve more responsibility to the local level, but then ensure
that the Standards Committee has a majority of independent members,
including an independent chairman ".
Interestingly Hammersmith and Fulham had come to a similar view
and favoured "an approach already being taken by some authorities,
of local standards committees made up entirely of people outside
the council to which they applied. They might well include serving
councillors from neighbouring councils, who would bring to bear
the necessary experience but who would be independent of the immediate
scene. The model proposed in the draft bill, and particularly
the provision that allows for the inclusion of one executive councillor,
seems likely to create inbuilt conflicts of interest".
In Herefordshire, Professor Stewart told us, the Standards Committee
was entirely independent and includes the Bishop and Lord Lieutenant.
234. Some witnesses thought that the local standards
committees should be capable of doing a lot more, especially with
a more robust and independent membership. First and foremost,
they should be capable of dealing with "more than insignificant
or trivial complaints".
But it was essential that the committee be given some kind of
sanction which it can impose on members who have transgressed
the code. At present, no sanctions except for reprimand are available
And we note that it is by no means clear what a standards committee
is meant to do with regard to any matter referred to it by the
235. ACSeS had the interesting idea that, with an
independent element in its membership, the standards committees
could consider matters that went wider than observance of the
code, and into other regulatory issues including oversight of
the information flow process within the council and monitoring
the council's rules governing the relationship between the full
council, the executive, and the scrutiny committees.
236. One authority informed us that, in the interests
of pooling expertise and saving costs, London boroughs in the
West London Alliance had discussed the possibility of setting
up joint standards committees.
237. Unfortunately, the standards committees as at
present conceived are probably unsuited to anything other than
a modest and rather ill-defined role. When we asked the Minister
how to limit the number of trivial or vexatious complaints which
might be made, she took the view that the standards committees,
being committees of the council, would not be seen as sufficiently
impartial by complainants.
In such circumstances, the National Standards Board would itself
filter complaints and inquire only into those that warranted inquiry.
238. We think that much more use could be made of
local standards committees in the screening of complaints at local
level. But for this to be possible, the committees should be seen
to be independent of the executive whose decisions will, in the
main, be those complained of. And they should have a greater number
of independent members.
239. We recommend that
(i) members of
the executive should not sit on the standards committee;
committees should contain more, or even a majority of, independent
(iii) to enable
standards committees to fulfil a sifting role a procedure should
be established whereby a complaint about a breach of the Code
should be considered first by the standards committee and certified
by the monitoring officer before forwarding to the Standards Board.
240. If a standards committee, as constituted above,
is to have responsibilities for minor breaches of the code, and
if it is to act in respect of any matter remitted to it by the
Standards Board, it must have some powers of sanction. We therefore
recommend that a power of temporary exclusion of members of the
authorityperhaps for a period of up to four weeksbe
given to the local standards committee.
241. We consider that some authorities might well
wish to pool resources and set up joint standards committees.
Indeed, their impartiality could well be enhanced by such a move.
We recommend that the bill should provide for joint standards
committees to be set up wherever authorities may so desire.
Standards Board and Adjudication Panel
242. We received, chiefly from representatives of
officers and other practitioners, a wide range of evidence on
the practical arrangements whereby the Board and the Panel would
work. Possibly the most important point made was the danger of
overload by vexatious and trivial complaints. This we have already
touched upon in the context of our discussion of the role of local
243. Thus a number of witnesses sought a refinement
in Board procedures to allow for a rapid sifting out of trivial
It was pointed out to us that the draft bill does not appear to
allow the Standards Board or an ethical standards officer any
discretion as to whether or not to undertake an investigation
into an allegation. Unlike the discretion given to the Local Government
Ombudsmen by the Local Government Act 1974 "the ethical standards
officer must publish a report of each investigation however trivial
and unfounded the allegation. If the Standards Board is to avoid
becoming bogged down with numerous mischievous or frivolous complaints
the ethical standards officers should have the same wide discretion
as an Ombudsman".
SOLACE wrote that "There will need to be some interpretation
and judgment involved in pursuing issues to a Standards Committee
which ensure that it becomes and remains an effective device".
244. Notwithstanding our recommendations that the
local standards committee should exercise a sifting role in respect
of applications to the Standards Board, we think it essential
that the Standards Boards also have mechanisms that enable them
to sift complaints. It was clear that the Minister expected
them to do this. In view of that, we recommend that Standards
Boards and ethical standards officers have the same discretion
as the Ombudsmen as to whether to initiate, continue or discontinue
a complaint and that the bill should be amended with that effect.
245. The draft bill in its present state gives powers
of suspension of up to six months to an ethical standards officer
on an interim basis pending a determination by the Adjudication
Panel. The Adjudication Panel, on determination, may suspend a
councillor for up to one year or disqualify him or her for up
to five years. In both cases appeal lies to the High Court.
246. A few witnesses made representations to us about
the propriety of the ethical standards officers having powers
of suspension. It was suggested that suspension should be a matter
for the Adjudication Panel after consideration of an application
by the ethical standards officer.
Given that the bill has gone to great lengths to separate out
the investigative function and the adjudication function, this
power appears to be misplaced. We recommend that power of suspension
of councillors be reserved to the Adjudication Panel, where appropriate
on application from the ethical standards officer.
247. It was also pointed out that the bill did not
specify whether or not a councillor would, after suspension or
disqualification, remain suspended or disqualified during the
course of an appeal to the High Court. This could be important
for a council that was finely balanced politically. We agree that
the position should be clarified beyond doubt. We recommend
that the bill should specify whether or not a council member would
remain suspended or disqualified during the course of an appeal
to the High Court.
248. The procedures set up by the bill to investigate
breaches of the Code of Conduct are elaborate and they constitute
a new mechanism for ensuring high standards of ethical behaviour
among councillors. But other avenues of complaint already exist
in the form of the Commissions for Local Administration in England
and Wales (the Ombudsmen), and the Audit Commission. The Ombudsmen
wanted legislative provision to allow co-operation between the
Commissions for Local Administration and the Standards Boards
in cases where the same complaint was being pursued in both arenas.
ACSeS also raised the possibility of a further overlap with criminal
proceedings at such time as the proposed offence of misuse of
public office may be instituted.
249. There is clearly an issue here which requires
resolution, either by legislative means or by some form of concordat
between the various bodies to prevent simultaneous consideration
of the same issue. We recommend that legislative or other provision
be made to prevent simultaneous consideration of the same complaint
in respect of standards by more than one statutory body.
Common and shared services
250. In the interests of economy, suggestions have
been made by the Government for placing the standards boards and
adjudication panel within a common organisation.
The Government said that they would consult the Council on tribunals
and others "with the intention of establishing arrangements
which achieve this whilst still being demonstrably fair and just".
The Council on Tribunals told us that they did not like the idea.
"It could be damaging to the perception of the independence
of the two bodies from each other if they were brought within
one organisation", they wrote.
251. The suggestion made by the Government in respect
of Wales was that the office of the Commission for Local Administration
take on the role of the Standards Board. The Commissioner, while
he saw some advantages, saw many disadvantages too.
252. The Committee are sensible of the need for cost-effective
use of public funds and they recognise that the Government's proposals
will be expensive. But we share witnesses' unease at what is being
proposed. We recommend that, in deciding the question of accommodating
the Standards Boards and Adjudication Panels in England and Wales
the Government abide by the advice of the Council on Tribunals
in England and the Commission for Local Administration in Wales.
A fast-track procedure
253. Some witnesses expressed considerable disquiet
as to the time which the complaints process might take. It is,
for example, nowhere set out how proceedings before the ethical
standards officer, acting for the Standards Board, and the Case
Panel, acting for the Adjudication Panel will relate to each other.
One witness saw the ESO "prosecuting" the case before
the Case Panel. The Welsh Ombudsmen speculated as to how much
of the ESO's investigation and report would be re-worked before
the Case Panel. "Is there a complete re-hearing of the evidence?",
he asked, with possible loss of anonymity by the complainant.
The problem was "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".
ACSeS, extrapolating from the time taken to determine cases by
the Ombudsmen, thought that proceedings under the draft bill could
take up to eighteen months. "Lengthy process is frustrating
to the complainant, debilitating to the Council concerned and
potentially unfair to the member who is alleged to have transgressed".
254. The Committee consider that there is no reason
to suppose that proceedings under the bill as drafted will be
speedy, particularly if no action is taken on our recommendations
on filtering out and discretion not to act upon trivial or vexatious
matters. For these reasons and for reasons of fairness, it may
be necessary to institute some form of expedited, fast-track procedure
for the more serious allegations which have the potential for
suspension or disqualification of a councillor. We invite the
Government to consider under what circumstances for serious cases
of breach of the Code relating to standards an expedited procedure
might be instituted .
Abolition of surcharge
255. In their White Paper, "Modern Local Government:
In Touch with the People",
the Government stated their intention to repeal the Auditor's
power of surcharge, while retaining some means of ensuring that
any improper financial gain at the taxpayers' expense would be
returned to the council. The White paper, "Local Leadership,
Local Choice", which accompanies the draft bill says that
"The means for achieving this are being considered alongside
work on the proposed new offence of misuse of public office".
There is, however, nothing on this in the draft bill.
256. Local Government witnesses were anxious that
the Government proceed quickly with the abolition of surcharge.
Indeed, the introduction of executive arrangements as proposed
in the bill could have the effect of making the incidence of any
surcharge on an elected mayor or member of the executive very
heavy indeed. Although not currently part of the draft bill and
not widely canvassed by other witnesses, the Committee think
that to pave the way for executive arrangements surcharge should
be abolished by the Bill.
257. The Committee also take the view that the procedures
established by Part II of the bill, in particular the separation
of investigation and adjudication, could have implications for
some aspects of the procedures of the Auditor. We invite the
Government to consider whether the principles in Part II should
be applied to the investigative procedures of the Auditor.