Memorandum by the Council on Tribunals
The Council's comments are confined to Part
II of the draft Bill, and focus in particular on the proposed
The Council generally welcome Part II of the
Bill, which meets many of the concerns they expressed in responding
to the consultation paper "A new ethical framework".
The Council welcome in particular the establishment
by clause 38 of Adjudication Panels separate from the Standards
Boards, thereby separating adjudicative from investigative functions.
The Council agree that the two Adjudicative Panels should be placed
under their supervision.
As I anticipated in my letter of 5 November
1998 to Tony Redpath, the Council consider that the case panels
under clause 39 should be chaired by a lawyer. The Council note
that the Secretary of State and the National Assembly for Wales
would have power to issue guidance on the composition of case
panels. However, the Council would prefer specific statutory provision
for case panels to be chaired by lawyers.
The Council have a minor drafting point on paragraph
8 of Schedule 4, which provides that each of the Adjudicative
Panels may arrange for the discharge of any of its functions by
a committee, case panel or member of the Panel. Under clause 39,
case panels are to consist of not less than three members, so
it would not be possible for a single member to carry out this
function of the Adjudication Panel. It may be that some fine-tuning
of the wording of paragraph 8 of Schedule 4 is needed. The Council
also assume that paragraph 9(2) of Schedule 4, concerning the
validity of proceedings, does not apply to case panels.
The Council do see difficulties about the proposal
in paragraph 4.25 of the paper that the Standards Board and the
Adjudication Panel should be brought within one organisation.
The Bill makes it clear that the two bodies will be separate,
with quite distinct functions. It could be damaging to the perception
of the independence of the two bodies from each other if they
were brought within one organisation. For example, the Council
presume that ESOs would undertake the "prosecution"
of cases before a case panel of the Adjudication Panel. If the
ESOs were too familiar with case panel members on a day-to-day
basis, that could undermine the credibility of the adjudicative
process in what is bound to be politically sensitive area. The
Council note that they will be consulted about the arrangements,
but think it necessary to make their concerns known at the outset.
The Council have one or two points on another
aspect of Part II of the Bill, namely the ESO's power of interim
suspension (clause 37). As the Council have said before, this
power is a draconian one, and there need to be safeguards. The
Council have some concern about the second bullet point in paragraph
4.29 of the paper containing the reference to the ESO having "good
reason to believe the allegation was true". This seems to
involve an element of pre-judgment on the part of the ESO, whose
task is not to adjudicate on the truth or otherwise of an allegation.
Altogether, the Council feel that the provision for interim suspension
puts too much power into the hands of the ESO, notwithstanding
the availability of an appeal to the High Court. The Council would
be happier if the decision on interim suspension were to be referred
to the full Standards Board.
20 May 1999