Archived decisions

Contact: Kevin Gardner tel: 01962 847381 e-mail: [email protected]

1. Summary

1.1 After a long gestation period the Government has now enacted the Standards Committee (England) Regulations 2008 the effect of which is to require from the 8 May 2008 that all complaints concerning Member conduct under the Code of Conduct are to be initially filtered by the local Standards Committee rather than as hitherto the Standards Board for England. This Report therefore sets out the requirements of the Regulations and the measures that will need to be taken within the Authority to ensure compliance

2. Background

2.1 As Members will be aware where a complaint is made that a Member or co-opted Member of the Authority has failed to comply with the Code of Conduct applying to them the complaint is submitted to a Standards Board for England (SBE). Officers at the SBE then determine whether the allegation appears to disclose a failure by the Member to comply with the Code of Conduct and whether the allegation merits a formal investigation. This process also includes an internal appeal process within the SBE.

2.2 However, by a combination of provisions in the Local Government and Public Involvement in Health Act 2007 and the Standards Committee (England) Regulations 2008 all complaints against Members made from 8 May 2008 must be made to the Standards Committee of the Member's Local Authority.

2.3 The Regulations require that the Standards Committee establish two sub-committees consisting of at least three members and to be chaired by one of the independent members, one to carry out the initial assessment as to whether or not an allegation appears to disclose a failure by a Member to comply with the Code of Conduct and the other to undertake any review that might be required. It is important to note at this stage that the membership of the two sub-committees must be entirely separate. Each initial assessment of an allegation must be carried out within twenty working days of receipt with any review of a decision not to investigate a complaint being carried within a period of three months.

2.4 It should be noted however that neither the Act nor the Regulations have any significant impact on the pre-existing procedure whereby complaints can be referred from the Standards Board for England to a local standards committee for investigation and, if appropriate, hearing. That procedure will essentially remain as hitherto with the Standards Committee having an obligation to consider the Monitoring Officer's report into an investigation and depending upon the Monitoring Officer's recommendation to decide to take no further action or to require a hearing to take place.

3. The Initial Filtering Stages

3.1 The Act requires the Standards Committee to establish two sub-committees. The first, "Standards Assessment Sub-Committee" will be required to undertake the initial assessment of an allegation and decide whether the complaint shows an apparent failure to comply with the Code of Conduct and if so whether that complaint merits investigation or other action. One of the new provisions contained in the Regulations is that if the sub-committee considers that a complaint whilst indicating a failure to comply with the Code of Conduct is not sufficiently significant as to merit a full investigation they may require, after discussion with the Monitoring Officer that he or she undertakes other relevant action. This might include a requirement for the Member to attend training or to engage in a process of conciliation. The sub-committee would not be limited to these actions but could require other steps to be taken as appears appropriate to it and to the Monitoring Officer. If this course of action is pursued then the Monitoring Officer must report back to the sub-committee within a period of three months. If the matter has not been satisfactorily resolved in that way the Sub-Committee can decide upon future action including at that point requiring a full investigation of the complaint to take place.

3.2 Suggested terms of reference for the Standard Assessment Sub-Committee might include:

1. The Standards Assessment Sub-Committee is established to receive allegations that a Member of the Authority has failed to comply with the Authority's Code of Conduct.

2. Upon receipt of each allegation and any accompanying report by the Monitoring Officer the Sub-Committee shall make an initial assessment of the allegation and shall then do one of the following:

(i) Refer the allegation to the Monitoring Officer with an instruction that he/she arrange a formal investigation of the allegation or directing that he/she arrange training, conciliation or such other appropriate alternative steps as are agreed with the Monitoring Officer.

(ii) Refer the allegation to the Standards Board for England

(iii) Decide that no action should be taken in respect of the allegation

(iv) Where the allegation is in respect of a person who is no longer a Member of the Authority but is a Member of another relevant Authority (as defined in Section 49 of the Local Government Act 2000) refer the allegation to the Monitoring Officer of that other Authority;

and shall instruct the Monitoring Officer to take reasonable steps to notify the person making the allegation and the Member concerned of that decision.

3. Upon completion of an investigation by the Monitoring Officer the Sub-Committee shall be responsible for determining whether:

(v) It accepts the Monitoring Officer's finding of no failure to observe the Code of Conduct

(vi) The matter should be referred to consideration at a hearing before a Sub-Committee of the Standards Committee; or

(vii) The matter should be referred to the Adjudication Panel for England for determination.

3.3 It is suggested that the Standards Assessment Sub-Committee should comprise three Members to be chaired by one of the Independent Members. Although some commentators have opined that the Standards Committee would need to name the members of each sub-committee for a particular period despite earlier suggestions of some form of "floating" or "pool membership" the advice from the Standards Board is that nothing in the Regulations requires a Sub-Committee of the Standards Committee to have fixed membership or chairmanship, and that a panel of members can be drawn upon to sit on any particular sub-committee at the relevant time. This allows flexibility to ensure a quorate meeting can be convened within the statutory timescale.


3.4 The Committee is also required in a similar fashion to establish a "Standards Review Sub-Committee". If the Assessment Sub-Committee decides to take no action in respect of an allegation the complainant will have thirty days within which to request the Authority to review that decision. The Standards Review Sub-Committee will be responsible for conducting that review. It is anticipated that guidance will be issued as to whether or not this will require a full re-examination of the allegation or simply an assessment as to whether or not the initial decision of the Standards Assessment Sub-Committee was fair and reasonable on the basis of the information before them.

3.5 It is suggested that the terms of reference for the Standards Review Sub- Committee should therefore be as follows:-

(1) The Standards Review Sub-Committee is established to review upon the request of the person who has made an allegation that a Member of the Authority has failed or may have failed to comply with the Authority's Code of Conduct a decision of the Standards Assessment Sub-Committee that no action be taken in respect of that allegation.


(2) Upon receipt of such request for a review and any accompanying report by the Monitoring Officer the Standards Review Sub-Committee shall review the decision of the Assessment Sub-Committee and shall then do one of the following :-

(i) Refer the allegation to the Monitoring Officer with an instruction that he/she arrange a formal investigation of the allegation or specifying that he/she take alternative action as permitted by regulations.

(ii) Refer the allegation to the Standards Board for England.

(iii) Decide that no action should be taken in respect of the allegation; or

(iv) Where the allegation is in respect of a person who is no longer a Member of the Authority but is a Member of another relevant Authority (as defined in Section 49 of the Local Government Act 2000) refer the allegation to the Monitoring Officer of that other relevant Authority;

and shall instruct the Monitoring Officer to take reasonable steps to notify the person making the allegation and the Member concerned of that decision.

(3) Where the Standards Review Sub-Committee resolves to do any of the actions set out above the Sub-Committee shall state its reasons for that decision.

3.6 The timescale within which the Standards Review Sub-Committee must issue its decision is three months, a significantly longer period than that available to the Standards Assessment Sub-Committee. While there is therefore probably not the same concern about being able to ensure that a meeting is quorate, (i.e three members including an independent chairman) and takes place within the appropriate time, it is still necessary to ensure that no Member of the Standards Review Sub-Committee has been involved in the decision of the Standards Assessment Sub-Committee in respect of the same matter. It is therefore recommended that the membership of any particular meeting of the Standards Review Sub-Committee is drawn from the membership of the Committee as a whole, so that flexibility is maintained.

3.7 Whilst the statutory provisions prohibit any Member from sitting on the Standards Assessments and Review Sub-Committees in respect of the same matter there is no similar statutory prohibition of the Member sitting on any subsequent hearings panel when that Member was previously involved in either the Assessment or Review Sub-Committee in respect of the same matter, notwithstanding this there may well be criticism from some quarters that having a Member involved in a hearing who has also been involved in either the initial assessment of the allegation or a subsequent review might amount to prejudice. Again on this point it is anticipated that advice from the Standards Board would be determinate of this issue. The down side of such a requirement is that it will inevitably increase the size of the Standards Committee and require at least one more independent Member to be appointed, notwithstanding that all allegations will not necessarily go through all three discreet stages of the procedure.

3.8 An alternative to appointing another permanent member of the Standards Committee is to utilise the provision contained within Regulation 5(3) and (4) which allows the Standards Committee to appoint an independent member of the Standards Committee of a different Local Authority either for a specific purpose or for a period of time. It is suggested therefore that for those allegations which require the Standards Review Sub-Committee to meet to consider an appeal that the Monitoring Officer be given authority to approach and appoint the chairman of a Standards Committee from another Local Authority to undertake the independent chairman's role for the Standards Review Sub-Committee. This will leave the remaining permanent independent member of the Authority's Standards Committee to chair any hearings sub-committee without any suggestion of having been involved earlier in the process with regard to the same allegation.

4. Publication Requirements

4.1 Regulations require that every Standards Committee shall publish in a manner which it considers appropriate details of the address to which written allegations should be made and also to ensure that procedures it will follow in relation to any written allegation received are similarly published. Although guidance is expected from the Standards Board for England it is suggested that this can be most effectively and economically achieved by details be included on the Authority's website. As the Authority will be responsible for receiving complaints it is also appropriate that on that website there be contained a specimen application form for completion either on-line or in hard copy. A copy of a specimen complaints form is attached to this Report for Members' comments and approval. One relevant point to note here is whether or not the Standards Assessment Sub-Committee should consider anonymous complaints. There is generally unease about considering anonymous complaints because of course the complainant in those circumstances cannot be contacted for further information and the complaints may be maliciously founded, frivolous of vexatious and do not allow for any recourse that may be appropriate. Furthermore it would be impossible to meet the statutory requirement to notify the complainant of the decision made in respect of the allegation. It is recommended therefore that the Committee take the view that anonymous complaints will not be considered by the Standards Assessment Sub-Committee but that the Monitoring Officer be authorised to keep the identity of a complainant confidential where he/she is of the opinion that this is in the public interest.

5. Notification of Complaint to the Member concerned

5.1 The Act requires the Standards Committee to notify the Member concerned of the receipt of a complaint and to provide a written summary of the allegation. The reality is that the Standards Assessment Sub-Committee is not likely to be able to meet for the first time until it actually considers whether or not the allegation appears to reflect a failure to comply with the Code and this would have the effect of delaying notification to the Member concerned.

5.2 Earlier consultation papers did raise the possibility of cases where there was a danger of the Member interfering with evidence or intimidating witnesses and that in such cases the Member concerned might not be notified of the complaint until the investigation had secured all relevant evidence. The reality of this happening however is probably remote.

5.3 In the circumstances it is suggested that the Monitoring Officer be instructed to notify the Member of receipt of a complaint and provide a written summary of the allegation at the same time as acknowledging receipt of the allegation to the person making it and in any event no later than the time at which the Agenda for the meeting of the Standard Assessments Sub-Committee is sent to Members The one caveat to this should be that if after consultation with the chairman of the Standards Committee the Monitoring Officer considers it appropriate to defer notification of an allegation having been received in order to enable a proper investigation to take place in which case notification should be made as soon as the reasons for the deferral no longer apply.

6. Public or Private Meetings

6.1 The Regulations provide that information presented either to the Standards Assessment or Review Sub-Committees or indeed a hearing sub-committee for the purposes of these new procedures can be treated as "exempt information" for the purpose of Schedule 12A to the Local Government Act 1972 and thus the press and public may be excluded from their meetings. This is a discretion so it will still be necessary for each meeting to start by resolving whether or not to exclude the press and public. On the only hearing that has taken place in the County Council since it has been able to hear complaints against Members, confidentiality was not applied. However different considerations apply to the Standards Assessment and Review Sub-Committees and it is recommended therefore that these should normally be held in private.

7. Conclusions

7.1 The Local Government and Public Involvement in Health Act 2007 together with the Standards Committee (England) Regulations 2008 make significant changes to the method by which complaints that Members have failed to comply with their Code of Conduct are to be undertaken. The procedure is undoubtedly more bureaucratic than that which previously applied when the Standards Board for England undertook the initial filtering of complaints and is undoubtedly likely to result in extra costs being incurred. Depending upon the number of allegations that are submitted the new procedure will result in significantly more work falling to the Monitoring Officer and to those other officers who will need to be called upon to fulfil the statutory obligations placed upon the Authority. However the Monitoring Officer will endeavour to ensure that these extra costs and resource implications are contained within current budgets.

8. Recommendations

1. That the Committee notes the effect of the changes to the local filtering of complaints against Members of the Authority under the Code of Conduct and adopts this report.

2. That the Committee appoints a Standards Assessment Sub-Committee and a Standards Review Sub-Committee with the Terms of Reference referred to in paragraphs 3.2 and 3.5 respectively.

3. That the Monitoring Officer be authorised to appoint, and convene a meeting of, the Standards Assessment and Standards Review Sub-Committees, the membership of the Sub-Committee to be drawn from members of the Committee.


4. That the Monitoring Officer be given authority to appoint an independent member of a Standards Committee from another Authority as an independent member of the Standards Assessment or Standards Review Sub-Committee should the Monitoring Officer consider that to be necessary.

5. The complaint form attached as an appendix to this report be used as the basis for any complaint to be made against a member of the Authority and that it be published on the Authority's website.

6. That as a matter of policy, the Committee will not consider any complaints made against a member of the Authority where the complainant fails to disclose their identity but that the Monitoring Officer be given authority at his or her discretion to withhold the identity of a complainant.

7. That the Monitoring Officer, in consultation with the Chairman of the Committee, be given authority to defer notification of an allegation having been received where to do so is considered necessary to enable a proper investigation to take place.

Section 100 D - Local Government Act 1972 - background documents

The following documents disclose facts or matters on which this report, or an important part of it, is based and have been relied upon to a material extent in the preparation of this report.

NB: the list excludes:

1. Published works

2. Documents which disclose exempt or confidential information as defined in the Act.

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