Agenda item
Presentation: Development of SAC priorities
To receive an oral presentation from Mr Paul Hoey, Consultant, with a focus on the current environment that SACs are working in and how they are being developed at other local authorities, with a discussion to follow on priorities for the LBTH SAC for the remainder of the municipal year.
Minutes:
Paul Hoey, Consultant Trainer (Hoey Ainscough Ltd), gave a detailed PowerPoint presentation (slides Tabled, a copy of which would be interleaved with the minutes) which encompassed the current standards environment (current legislative framework, local arrangements, codes of conduct), with a focus on how standards arrangements in LBTH were working/ compared with other local authorities (Las) and where there was scope for review to ensure streamlined and more robust in future. The key headlines of the presentation are summarised below:
· Localism Act 2011 – key requirements
· Case handling – arrangements & issues
· Standards Committees – composition & alternatives
· Filtering complaints & related issues - arrangements & issues to consider
· Informal resolution - arrangements & issues to consider
· Investigation - arrangements & issues to consider
· Conduct of hearing - issues to consider
· Sanctions - arrangements & issues to consider
· Independent Person (IP) – Law, arrangements & issues to consider
· Code of Conduct – requirements/ content & alternatives
· Interests - arrangements & issues to consider
Mr Hoey highlighted key issues for each area and responded to questions from the SAC summarised as follows:
· There was little scope for variety on requirements of the Localism Act and 95% of LAs had similar arrangements to those of LBTH.
· Standards committees:
o Localism Act abolished requirement on LAs to have a standards committee (SC). With exception of 1 or 2 LAs where standards issues had been delegated to Officers or the former terms of reference were subsumed into those of another committee, most LAs had an SC.
o The issues to consider were its composition and related transparency:
ØMost LAs treated their SC and sub committees like the others and composition was politically proportional. The LBTH SAC was proportional in terms of voting members, which was sensible in the context of the local political backdrop. The difficulty came where proportional balance led to public perception of skewing and mistrust of process outcomes.
ØThe Localism Act had stripped away statutory voting rights for independent members, and as a result of proportionality most LAs did not co-opt independent members onto their SC. However this arrangement at LBTH was very positive, as such members were a symbol that the role of the SC was above politics and this was enhanced by the LBTH requirement for the Chair and Vice Chair to be co-opted independent members.
ØPublic SAC meetings and proper recording of these was also positive for transparency as SC meetings in many LAs were held in private.
· Filtering complaints & related issues
- The LBTH arrangements placed almost all decision making [on complaints under the Members Code of Conduct] with the Monitoring Officer (MO) although the SAC had a role to endorse (or not) any “no action” decision. There was scope to review the arrangements:
ØThe requirement for the MO to seek SAC endorsement of “no action” decisions slowed down the process for dealing with complaints. Had the SAC rejected any MO “no action” decisions on controversial cases? Most cases were trivial/ spurious/ not a breach of the Code, so was it necessary to convene a SAC to endorse “no action”? Most LAs let the MO decide on “no action” as it allowed the MO to broker a solution or pass to party group leaders to resolve and this aligned with the lighter touch approach intended by the Localism Act.
ØWhy not extend the principles of this role to MO decisions for further action which after all committed public money and resource?
ØConsider moving the SAC role in complaint handling process from later to earlier.
o Clarification sought and given as to point at which Members should be informed of complaints against them. At some LAs Members were only told of a complaint/ asked to comment once a case was found. It was advantageous to inform them earlier to obviate finding out via the media, however the disadvantage was input from the Member delaying the process and likelihood of tit for tat complaints. Earlier was generally better to allow an informal resolution. However it was often helpful to encourage complainants to flesh out their case and request evidence/ substantiation as often this prompted the case to be dropped.
o Consideration that there was a need for a clear definition of a complaint in order to tighten up arrangements for handling complaints at LBTH. No evidence/ substantiation, No apparent breach, MO not understanding the complaint, would result in many cases not becoming a formal complaint and contributing to the related statistics.
o There was a need for monitoring of all cases even those which were dropped as, although this had resource implications, it would contribute to a learning experience for discontent/ identification of rubbing points for complaints, which assisted building of trust and identifying ways to prevent cause for complaint.
· Informal resolution & Investigation
- There was a balance to strike in filtering out politically motivated cases and also seeking an informal resolution to others. Some LAs preferred not to investigate complaints due to the resource implications and prioritised informal resolution. There was scope at LBTH for the SAC to give a steer on the types of cases it wanted investigated and the levels of resource for these.
- Most LAs had a 2 stage process for informal resolution: during and post investigation, however they incorporated this into their process earlier than at LBTH and this should be considered in any review of arrangements. However where informal resolution was prioritised the SC chair should be consulted that the outcome was appropriate. The resolution needed to be satisfactory to the complainant although most LAs didn’t allow a complainant veto. Often the sanctions were unsatisfactory to the complainant, so it was advantageous not to build their expectations and shut down the case early on. However the public also needed to be satisfied that issues were being dealt with seriously by the authority, and it was useful for the SC to monitor cases so there was a record.
- There was scope at LBTH for the SAC to extend its role to endorse any MO decision to progress to a misconduct hearing where investigation showed a breach of the Code.
- Clarification was sought and given regarding final time limits for concluding complaints, with consideration that some cases at LBTH had taken far too long to conclude and referral of such cases back to the SC. Delegation to SC sub committees could assist. Experience with other LAs showed a rigorous timeline was required and LBTH required this within 3 months. There were instances where cases would go beyond this due to complex documents, lack of information eg Members unavailable to interview, involvement of lawyers for both parties. 95% of cases should be dealt with within 3 months, and if this was not possible the MO should provide an explanation to the SC as to why, and seek an extension. The SC should also take account of deliberate prevarication delaying due process. Rather than convene an SC for cases over 3 months, it was preferable to consult the SC chair and IP, perhaps report such instances to the next SC. Setting clear deadlines for Members to respond definitely assisted as did talking to Members early on in the process with a view to informal resolution.
· Conduct of hearing
- Although transparency was needed this was not facilitated in a social media environment and the legal framework was not helpful, consequently there was a trend in other LAs to hold hearings in private. This resulted in a public perception of corrupt practice particularly when sanctions were often light touch. There was scope at LBTH for the SAC to be more explicit on this issue.
· Sanctions
- The Localism Act had abolished most of the previous sanctions and those available were limited (see slide). There was scope at LBTH to review arrangements:
ØSome LAs delegated sanctions to the SC; was there scope for this particularly for censure or training?
ØCurrently the SAC recommended sanctions to full Council what reaction and protocols were there for instances where the Council may reject or vary these, given the party politics possible in a full Council meeting.
ØRestriction of access to the Authority’s resources was permitted, but as there was no clear policy should SAC give a steer?
ØConsideration and a steer could be given on referrals to group leaders.
- There was scope at LBTH for clarification of the arrangements for handling complaints which currently provided for a Member appeal within 5 days and a full right of appeal within 15 days which allowed for confusion.
· Independent Person
o Consideration should be given to IP self-protection should they feel that a case was not being handled appropriately by the MO or they felt sidelined.
o It was appropriate that the IP and RIP were observers at SAC meetings as they were not decision makers. However the expectation should be set that they were copied into papers circulated to the SAC and wider discussions.
o Consideration could be given to allowing a complainant access to the IP as provided to the Member subject to complaint.
o The IP role overlapped slightly with that of co-opted independent members, but the latter brought positivity to perceptions of the SACs role.
· Code of Conduct
o Much of the content at other LAs was similar to that of the LBTH Code in respect of Nolan principles and required behaviours, however the current Code was almost identical to the Code under the previous standards regime and there were alternatives that could be considered eg principled based codes from DCLG.
· Interests
o There was a lack of clarity as to the position of the LBTH code on interests other than Disclosable Pecuniary Interests. It was important to set appropriate rules on other interests, including procedural rules, to counter public perceptions of corrupt practice. This should be included in any review of arrangements at LBTH.
The Chair summarised that the move from the previous standards arrangements to those currently had been required at short notice, and it was now apparent that these were overly elaborate at LBTH, given the nature of the sanctions available for misconduct, and there was considerable scope for streamlining.
ADJOURNMENT
At this juncture the Chair summarised that he considered it appropriate that there be a short adjournment to allow SAC members time to read and assimilate the information presented in the Tabled paper of scenarios (a copy of which would be interleaved with the minutes). Accordingly the Chair Moved the following motion for their consideration, and it was: -
Resolved
That the SAC adjourn for a period of 5 minutes, at 8.50pm, and that the meeting reconvene thereafter.
The meeting adjourned at 8.50pm
The meeting reconvened at 8.55pm
A discussion followed which focused on a number of factually based scenarios, which had given rise to complaints against Members at various LAs, set out in the tabled paper, and the related standards issues raised by each, summarised as follows :-
· A variety of views were expressed as to whether each scenario fell within the scope of the Code of Conduct and associated rationale given. SAC members often considered that the scenarios did fall within the Code when they did not.
· Where scenarios did not fall within the formal scope of the Code, and therefore the associated arrangements for dealing with complaints, consideration that there remained standards issues which would need addressed were they repeated at LBTH. There was a need to think beyond the Code, particularly in instances of reputational damage for the authority, and a role for SAC in determining both appropriate mechanisms for dealing with such complaints and related courses of action to mitigate Member behaviour eg role for party group leaders and party whips, Chairs of committees, withdraw access to Council resources Officers & equipment.
· What was the process if the MO felt behaviour fell within the Code and the SAC did not?
· Consideration that the SAC should consider its role in weighing sanctions against the potential for Members to argue that they could not undertake the duties of their public office as a consequence.
· Consideration that there was also a role for SAC in setting out differences between personal and Councillor roles, particularly around social media, how behaviour would be viewed accordingly and to raise awareness of this. Drawing up a protocol for use of public media might be helpful including statements from party group leaders as to what was acceptable.
· Consideration that a communications strategy for handling media enquiries in such scenarios would be of value.
· There was a role for SAC in determining thresholds of acceptability around public Member behaviour eg between legitimate challenging of Officer advice where implications of Officer advice were not in the public interest and unacceptable undermining or harassment/bullying of Officers.
· Consideration that further guidance needed to be provided by the SAC on declaration of interests other than Disclosable Pecuniary Interests by Members where there might be a clear public perception of corrupt practice, as current rules were insufficiently robust. There was also a need, in this context, to raise Member awareness of the common law offence of “Misconduct of Public Office” and implications for non-declaration. Further clarity was needed on acceptability of speaking and voting at a committee in various scenarios. The Chair noted that Members were inclined to declare at LBTH as they viewed matters more seriously than the letter of the law.
The Chair Moved and it was: -
Resolved:
1. That the information provided in the presentation and accompanying PowerPoint presentation be noted;
2. That Members comments be noted; and
3. That Mr Hoey produce a short summary of points made in his presentation as to scope for review LBTH standards arrangements to ensure these were streamlined and more robust in future. This to be circulated to SAC members before the next meeting to inform a discussion item on the agenda.
Action by:
Angus Taylor (Principal Committee Officer, Democratic Services, LPG)
Meic Sullivan-Gould (Interim Monitoring Officer, LPG)