Ctte Response to ODPM

7 July 2006

Dear Sirs

“STANDARDS OF CONDUCT IN ENGLISH LOCAL GOVERNMENT: THE FUTURE”

This response is from the Isle of Wight Council Standards Committee to the ODPM letter dated 15 December 2005 entitled “Standards of Conduct in English Local Government: The Future”. We have responded in two ways. The first is to follow through the paper and respond to each section using the same numbering system; the second is to look at a few issues and address them as individual topics.

Response Part 1 regarding the main paper.

Chapter 1. Introduction.

We agree with the introduction paragraphs 6, 7, 8 and 9.

Chapter 2. Conduct of Members.

We agree with paragraphs 5, 6 and 7 also 10, 11, 12 13, 14 and 15. The Isle of Wight Council Standards Committee is proud to advise you that it already attains 16. Regarding 17, The Isle of Wight Standards Committee had a 100% co-opted membership prior to the coming into effect of the Local Government Act 2000. Now we have a substantial majority of co-opted independents of which one is chairman. We have three members appointed by the Town and Parish Association. We find it beneficial to have two experienced elected members of the Council on the committee. We share expediences and expertise. We are involved with the development of clustering of Parish Councils and the establishment of a tripartite office to assist the Town and Parish Association, the Society of Local Clerks and the Isle of Wight Council.

We agree with paragraph 21 and 22. We have been sending SBE our annual reports for the last three years. We are content to become involved in determining a model format and/or guidance for annual reporting. Through the regional forums for independent members we have been able to pick up useful and constructive points from other authorities. These reports are valuable if available for others to see.

We agree with paragraphs 23, 24 and 25.

With regard to paragraph 30, 31, 32 and 33 we confirm that in our experience there is a good supply of suitable candidates of high quality to be appointed as co-opted independents. The Isle of Wight Council led the initiative to having all independent members for some time. We have always had an independent as chairman. We are confident that more suitable candidates will become available across the country as the proposed changes described in the table at Paragraph 26 come into play.

We welcome the opportunity to work closely with other authorities with the mutual gain of particular skills and experiences. We would prefer to remain independent as we believe we are able to achieve and maintain a balanced, quality membership.

The Isle of Wight Council is a beacon of success not only with the range of skills and experience available through its seven co-opted members to its Standards Committee but also the two co-opted members to its Scrutiny Committee. However, as our chairman will point out there is great disparity across the country. Many authorities do not give much weight to their compulsory standards committee. Many a single co-opted member is given little support. The agenda and frequency of meetings demonstrate a lack of understanding of the statutory duties. In some authorities the monitoring officer does not give support to the co-opted member(s). In the Hampshire, Isle of Wight, East Sussex, West Sussex and Surrey area covered by the forum formed by and co-ordinated by our Chairman, the number of under responsive authorities is apparently falling. Nevertheless, because of this consultative document and those that may follow please be advised that our Chairman is striving to bring into being the Association of Independent Members of Standards Committees in England (AIMSce;) the official adoption of its constitution will take place on 16 October, 2006 at the Fringe Event at 6.30 pm in Room 7 at the ICC Birmingham during the Fifth Annual Assembly of Standards Committees. This will give Independent Members a voice; you will then find out much more about their strength. They will pave the way to break down apathy in certain areas because Independents will be empowered and will bring to their several committees comparisons of best practice.

Regarding paragraph 36, we believe that the spirit of high ethical standards will be obtained if the Standards Committee is involved in setting guidelines for partnering arrangements, reviewing any partnering proposals to ensure that the ethical standards that apply to the authority are established in an appropriate manner in the new body or joint venture arrangement etc and that there are stipulations ensuring the ethical agenda is passed down through any subsidiary arrangements in further delegated service providers.

Chapter 3. Conduct of Local Government Employees.

We agree to the thrust of paragraph 10 and likewise agree with paragraphs 24 and 25.

Chapter 4 The Way Forward.

Whereas we recognise that many matters will be subject to primary legislation, we wholly support in principle bringing in all those measures that can be brought in by secondary legislation. At the end of paragraph 3 you mention a need for capacity building measures. In paragraph 4 you state that you intend to work with the Standards Board and other stakeholders. As referred to above The Association of Independent Members of Standards Committees in England, (AIMSce) will in four months time be a new representative body. It will have a part to play in the Way Forward.

Response Part 2. A few selected issues.

A. The Structural elements in respect of the Role of Standards Committees.

1. This Committee accepts and adopts the principle that the investigation and adjudication of all complaints in regard to alleged breaches of the Code of Conduct for members of local authorities should in all but the most exceptional cases be dealt with at local level. It considers that in general the role of Standards Board should be restricted to regulating, advising and monitoring the conduct of local standards committees themselves, and should not extend to either the investigation or the adjudication of individual complaints (other, that is, than complaints that a local standards committee has itself acted, or failed to act, improperly, or that it has been obstructed or improperly influenced by the representatives or officers of its governing authority)

2. This Committee believes that the exercise of adjudication and disciplinary functions conferred upon Standards Committees should follow as closely as possible the pattern of jurisdiction established in other areas of conflict resolution such as civil and criminal courts and the numerous tribunals, many of which (for example in the fields of immigration and social security) are already charged with resolving disputes between individuals and the organs of government. These are tried and tested structures which enjoy a broadly favourable public perception of delivering independent, just and fair outcomes.

3. All procedures should continue to be initiated by the lodging of a complaint by the individual aggrieved. The complaint should be directed to the Monitoring Officer of the authority concerned, who should carry out the initial screening to determine whether the conduct complained of does in fact fall within the ambit of the Code. If the complaint, even at this stage, presents the Monitoring Officer with a personal conflict of interest, it should be screened by his Deputy or, if all Deputy Monitoring Officers are equally conflicted, by a suitable external entity such as a Monitoring Officer from another local authority. This approach should be adopted at all stages of investigation and adjudication where Monitoring Officers are placed in conflict.

4. A complaint will proceed to the Standards Committee in any of the following circumstances: where the complainant refuses to accept a determination by a Monitoring Officer that the subject matter (whether true or false) does not constitute a breach; where the Monitoring Officer, following screening and further investigation, determines that there has been no breach but the complainant nevertheless requires a hearing; and in every case where the Monitoring Officer determines that a breach has occurred.

5. In the first of the three situations given above, the Standards Committee will consider the matter and, if satisfied that the complaint does involve prima facie a breach of the Code, remit the matter to the Monitoring Officer for full investigation before brining the case back for substantive hearing. In either of the other two cases, the Standards Committee will hold a substantive hearing as soon as the investigation is complete and the subject of the complaint has had proper opportunity to prepare his defence.

6. The Standards Committee should have limited powers of sanction; in the most severe cases, where the Standards Committee feels that the powers given to it are insufficient to impose a fitting sanction, it should be able to refer that aspect of the case only to the Adjudication Panel as the next level up in the jurisdictional hierarchy.

7. The Standards Committee should be the final arbiter on questions of fact, except to the extent that, upon appeal to the Adjudication Panel, its findings were judged to be perverse in the light of the evidence before it.

8. Appeals to the Adjudication Panel - by either the complainant or the subject of the complaint - should be admitted by leave only either of the Chairman of the Standards Committee concerned or of the Adjudication Panel itself and on the grounds only of an error of law (including breach of natural justice). Appeals would have to be accompanied by a sufficient Record of the Proceedings and a Statement of the Reasons covering both the outcome and (where applicable) any sanction imposed.

9. Given that the Isle of Wight has a unitary authority, this Committee can only comment that we endorse the principle of town and parish councils coming within the umbrella jurisdiction of the Standards Committee of the Isle of Wight Council. If the island still had separate County and District/Borough Councils, we would still have favoured a single Standards Committee for the entire island. We do not, however, see merit in formal association with any wider regional grouping.

10. Returning to the relationship with the Standards Board, we confirm our view that it should stand aside from the adjudication process. It has a very valuable role to play in promulgating and disseminating best practice, in advising and supporting Standards Committees (including asserting their independence from their executive authorities) and where necessary intervening to remedy failing Committees. We welcome the publication of model procedures, but caution against the imposition of exquisitely detailed regulations which may sacrifice pragmatic justice to the pursuit of trivial niceties. Standards Committees are essentially lay tribunals, and their decisions should not be undermined on procedural grounds where there have been no breaches of natural justice.

B. The wider role of Standards Committees

There is a wider role for standards committees than just ensuring the adoption and compliance with the code of conduct. Here there is a degree of discretion. However it all follows from the statutory obligation of “........ promoting and maintaining high standards of conduct by the members and co-opted members of the authority ....”. We would be most anxious to retain this statutory obligation in whatever changes take place in the future. There is a demonstrable body of experience across numerous authorities to illustrate the benefits gained, internally and from a public perspective, of the rolling out of the wider ethical agenda. There maybe scope for the development with and through the Standards Board of a model procedure for “Code related activities” with guidance and possibly regulation for the broader ethical agenda after in depth discussion on the scope of such a broader agenda. Best practice can be developed through peer support and other arrangements.

C. The Role of the Standards Board for England - Monitoring Standards Committees.

The Standards Board for England will need to monitor the performance of Standards Committees to ensure that the statutory obligations are being properly fulfilled. This committee therefore proposes the following:

1. To ensure a local authority fulfils its statutory role in the conduct regime, the Standards Board should examine the:

(a) composition of the committee, appointment processes, training provided and validated, its support within the authority;

(b) the terms of reference including the wider ethical agenda beyond the code, ensuring that these do not conflict with other responsibilities. {See the article in Standards Board Bulletin 29 concerning audit committees}.

2. The Standards Board for England should require an Annual Report written against guidelines for content. There should be people profiles of all the members, together with performance appraisals.

3. The Standards Board for England would need to have powers to intervene if there were failure to provide evidence of or to appoint a Standards Committee and/or the required classes of members. Likewise failure to establish appropriate terms of reference and failure to issue a proper annual report or its contents indicated that it was not performing adequately.

4. At the beginning of such a new regime the Standards Board for England should take a medium weight touch in its initial monitoring then vary as appropriate. Too many things have been too slow since the year 2000. At minimum the Standards Board should receive and examine the Annual Report and follow up if the report indicates inadequacies or apparent deficiencies.

5. Standards Committees should provide an annual return answering a questionnaire which deals with items not covered by the template for the Annual Report.

6. After basic compliance with the appointment and terms of reference elements the Standards Board for England should look at the composition of Standards Committees, their activities, levels of complaints. The basic question is ‘has a high standard of conduct been established and maintained’; the second question is ‘how is it monitored’; the third question is ‘what do the results of the monitoring indicate’ and finally ‘what is being done about any failings and shortcomings’?

7. If a Standards Committee was found to be failing and it was necessary for remedial action to be taken, then the first action would be an analysis to discover what has gone wrong or is wrong to warrant external interference. If appropriate the first line of remedy should come from the appointment of peer support (person or group) to facilitate the recovery in the failed element(s). The Standards Board for England could set up a register of peers to be asked to go into trouble shoot rather than sending in the heavy brigade unless the situation is so bad that it warrants such rigorous treatment.

This Committee believes that the level of response given is within its competence and experience. There are other issues covered by the discussion document, but we believe they are more suitable for response by others.

Yours faithfully,

R. B. Claxton.

Chairman Isle of Wight Standards Committee

For the attention of William Tandoh

Department of Communities and Local Government

Eland House

Bressenden Place

LONDON

SW1 5DU