PAPER D

 

Committee:    STANDARDS COMMITTEE

 

Date:               19 MARCH 2007

 

Title:                INFORMATION REPORT ON CONTENT AND PROGRESS OF THE LOCAL GOVERNMENT AND PUBLIC INVOLVEMENT IN HEALTH BILL

 

REPORT OF THE MONITORING OFFICER

 

PURPOSE

 

1.                  To give Members of the Standards Committee a broad overview of the provisions in the Local Government and Public Involvement in Health Bill relating to ethics and conduct issues.

 

BACKGROUND

 

2.                  The Local Government and Public Involvement in Health Bill gives effect to the Government's proposals for reform of the local government system in England and for reform of the current arrangements for patient and public involvement in the provision of health and social care services. It also gives effect to a commitment to expand the legislative competence of the National Assembly for Wales ("the Assembly") in the field of local government.

 

3.                  In July 2004 an initial discussion document 'The future of local government - developing a 10 year vision' was published by the Office of the Deputy Prime Minister (now known as the Department for Communities and Local Government) to launch the debate on the future of local government between central government, local government and other stakeholders under the heading local:vision. Between July 2004 and February 2006 numerous documents under the local:vision heading were published setting out ideas for discussion and consultation.

 

4.                 The Local Government White Paper 'Strong and Prosperous Communities', published on 26th October 2006, was a response to the local:vision consultation. The Bill follows from that White Paper.

 

5.                 The Department of Health instigated a review of patient and public involvement in the provision of health services in August 2005. In January 2006 the Department published the White Paper 'Our health, our say, our care: a new direction for community services". Following publication of the White Paper, an Expert Panel was established in February 2006 in order to consider the evidence that had been gathered. The Expert Panel published its findings in July 2006.

 

6.                 On 13th July 2006 the Department of Health published the consultation document 'A Stronger Local Voice' setting out the proposed changes. Since then there have been extensive discussions with stakeholders

 

STRATEGIC CONTEXT

 

7.                 Part 9 of the Bill, as currently drafted, is due to directly affect the Standard Committee’s role and is set out in two Chapters. Chapter 1 is headed Conduct of Local Authority Members and Chapter 2 is headed Employees. The main elements of these are set out below.

 

            Written allegations

 

            The Bill gives effect to the Government’s proposals for reform of the regime relating to standards of conduct for local government. The aim is to devolve most decision making on the conduct regime for local authority members to local authorities with a revised regulatory role provided for the Standards Board. The measures provide for local standards committees to make initial assessments of misconduct allegations and for review arrangements for those assessments which lead to no action being taken.

 

            Complaints will be made to the Standards Committee, not to the Standards Board for England. The Standards Committee will then decide whether to refer the complaint to the Monitoring Officer, refer it to the Standards Board or decide that no action should be taken. If the complaint is about a Member who has moved to another authority the Standards Committee may refer it to that authority’s Monitoring Officer.

 

            If the Committee decides to take no action it will have to notify the complainant who can request a review in writing within 30 days. The Standards Committee must think again and come to a decision within 3 months.

 

            In circumstances to be prescribed by regulations the Standards Board will be able to issue a direction withdrawing jurisdiction from a Standards Committee and requiring complaints to be referred to itself or to another authority’s Standards Committee.

 

            On receipt of a reference, the Standards Board may refer it to an Ethical Standards Officer for investigation, decide that no action should be taken, or refer it back to the Standards Committee which must then deal with it itself.

            The Standards Board may give general statutory guidance.

 

            Conduct outside official capacity

 

            The general principles, model code and local codes will not be limited to actions taken only in an official capacity. This reverses in part, the judgment in the Livingstone case where it was held that private capacity conduct will rarely be capable of bringing a member’s office or authority into disrepute even if considered inappropriate, outrageous or unlawful.

 

            Members and co-opted Members will be obliged to make a new declaration, on this basis, within a prescribed period. If they do not, they will be disqualified. The intention is that the changes will be retrospective in terms of interpreting the Code but not retroactive in that there will be no breach for misconduct outside official capacity before the Act comes into force.

            Provision of Information

 

            The Standards Board will be able to require authorities to send them periodic returns about complaints and casework. Parish Councils will not have to make returns.

 

            The Board will also be able to require information about the functions of the Standards Committee and the Monitoring Officer.

 

            Miscellaneous

 

            There are various miscellaneous provisions as follows

 

(a)       Standards Committees will have to be chaired by an Independent Member

 

(b)       There are a number of amendments to the provisions on sub-committees to tidy up drafting problems and make it possible to appoint sub-committees for all purposes, including parish matters

 

(c)        The Secretary of State will be able to make regulations providing for the creation of joint Standards Committees

 

(d)       The Standards Board’s general powers will be broadened

 

(e)       The possible findings of an Ethical Standards Officer will be slightly amended. The first two options will be “there has been no failure to comply” (instead of) “there is no evidence of …”) and “there has been a failure but no action needs to be taken”

 

(f)         Ethical Standards Officers right of access to documents will be clarified to give access to documents which do not relate to the Authority

 

(g)       There will be new exemptions to the prohibition on disclosure of information by Ethical Standards Officers, including disclosure to enable the Monitoring Officer to discharge his or her functions. The Monitoring Officer will be allowed to advise any member or officers of the outcome of an investigation by an Ethical Standards Officer and to copy reports to them if he or she believes that it would assist in promoting high standards of conduct

 

(h)        Ethical Standards Officers will be able to send reports to the Standards Committees even if they do not call for determination by the Standards Committee

 

(i)         Regulations may allow the withdrawal of a reference to the Adjudication Panel

 

(j)         The scope of the regulations governing matters referred to Monitoring Officers will be extended.

 

(k)        Regulations will allow Standards Committees to refer cases to Adjudication Panels if they believe they merit more severe sanctions than they can impose

 

(l)         There are drafting arrangements to the provisions on case tribunals. Interim case tribunals will have direct powers of suspension, the leave of the High Court will be needed for appeals from case tribunals and there will be a new power to make regulations as to sanctions imposed by case tribunals

 

(m)      There will be a new exemption from subject access requests under the Data Protection Act for data processed for the functions of a Monitoring Officer, Ethical Standards Officer or the Welsh Ombudsman where a release would prejudice those functions.

 

            The Bill makes provision for decisions in respect of Local Authority posts subject to political restrictions to be undertaken by Standards Committees rather than by the Independent Adjudicator as at present. The Secretary of State will also be able to issue orders to allow the maximum pay of political assistance to be linked to a point on the relevant payscale specified by Order. It will consequently be unnecessary to make “updating” Orders just to take account of pay inflation.

 

            The functions of the Standards Committee will be to determine applications:-

 

(a)       From people placed on the list of politically restricted posts who wish to be moved

 

(b)       From others, proposing that a post should be included on the list

 

FINANCIAL/BUDGET IMPLICATIONS

 

10.      There may be financial implications in relation to a number of proposals contained in the Bill. The full extent of this will not be clear until the final legislation is enacted.

 

 

LEGAL IMPLICATIONS

 

11.             The provisions in the Bill have been generally welcomed, localising and, along with the revised code of conduct, liberalising the standards regime to a greater extent and in a manner many called for when the ethical framework first came into place. The official capacity provisions, for example, in effect bring back the positions that it was thought to be prior to the Livingstone judgment.

 

12.             There are however issues relating to the Standards Committee reviewing its own decision on whether a complaint should be pursued. The practical arrangements for undertaking local filtering will need to be carefully thought through to avoid any allegation of bias in the process.

 

13.             As with any local and less frequently utilised set of procedures, consistency of decision making across differing authorities may raise problems. This is not just confined to decisions on hearings but on other aspects yet to be fully determined by Government

 

14.             One example is that of political restrictions.  The 1989 Act concerned refers to ‘politically restricted posts’ and defines them in terms of role and what they are not. The legislation is somewhat out of date and consultation was carried out last year, which has resulted in the policy behind the legislation being confirmed and these amendments being placed in the Bill. As currently drafted, however, the Bill passes on to standards committees a confusing “loophole” (as described by the relevant civil servant) which needs to be clarified. As the Independent Adjudicator only acts where the authority concerned has certified an opinion and an exemption requested by the individual, the previous decisions made by the Independent Adjudicator have resulted in an official opinion that politically restricted posts apply only to directly employed staff and not locum or agency staff or those elements of the council’s role that is contracted out, producing a two tier system. In discussion with the Monitoring Officer, the Independent Adjudicator has described the current system as “a matter that needs clarifying as to continue with the current situation will be an embarrassment” and has referred this to Department for Communities and Local Government to have clarified in the Bill.

 

A great deal will therefore depend on the quality of guidance from the Government and the Standards Board.

 

EVALUATION

 

15.       On 30 January Sir Jeremy Beecham, Sir Simon Milton, Cllr Richard Kemp and Paul Coen (LGA) gave oral evidence on the local government and public involvement in health bill to the public bill committee, and made parliamentary history by being the first organisation to give evidence to this new scrutiny process. 

 

The bill will continue in Commons committee until early March. It is likely that Report and third reading will take place before the Easter recess, with the bill moving to the Lords in late April.   Royal assent is expected late in  October 2007.     

 

RECOMMENDATIONS

 

16.             That the proposals in the Local Government and Public Involvement in Health Bill be noted.

 

17.             That the Committee considers any comments or observations it would wish to make.

 

BACKGROUND PAPERS

 

None

 
APPENDICES

 

The Local Government and Public Involvement in Health Bill can be found at:

 

http://www.publications.parliament.uk/pa/cm200607/cmbills/016/en/index_016.htm

 

 

Contact Point:      Pat Szatter, Monitoring Officer (tel. 823228)

 

 

 

PAT SZATTER

Monitoring Officer