-----Original Message-----
From: Alex Riley [mailto:alex@alexrileywines.co.uk]
Sent: 07 August 2006 12:29
To: McMillan Fiona
Cc: David Gilbertson; Adams Holly
Subject: Items 12 and 13 for Wednesday's Standards Meeting

(Holly: please could you circulate this to all members of the Standards Committee)

Fiona

I probably should have sent Friday's email to you rather than to David Gilbertson.  But in any event I most certainly should have copied it to you.  My apologies for this oversight.

I am sorry I did not get my comments to you over the weekend but quite honestly I have so many concerns with these documents that I did not feel able to send the list before I had at least dealt with the most obvious issues.  You will see from what follows that I do not believe we can ratify these documents on Wednesday.

These documents create a quasi-judicial quagmire that will be immensely time-consuming, cause unnecessary distress and, far from improving the general reputation of SCDC, will achieve the opposite.  Whilst I can sympathise with the SBE for wishing to offload the handling of complaints, this should be accompanied by making the system more even-handed and more streamlined.  The reverse has happened.

We must not lose sight of the morass that is being created.  Initially the deal was that the Code would have no financial consequences for districts because what little work was generated in the name of the Monitoring Officer could readily be done part-time by the Chief Legal Officer.  The SBE has discovered just how much time-consuming these investigations are and how much opprobrium they are generating, so is offloading them.  So instead of centrally-funded ESOs we have locally-funded Investigative Officers.  What is all this achieving?  What will the appointment process be for all our IOs?  Will the Standards Committee have an involvement, or will the Monitoring Officer appoint?

These rules seem to have been dreamt up by bureaucrats with little or no experience of local government but with a deep conviction that local government contains bad apples who deserve to be made examples of and who do not deserve to be treated fairly. 

In my own Parish Council experience (and with a detailed knowledge of the Code) it is safe to say that pedantic interpretation of the Code would lead to several councillors being found to have breached the Code at every parish council meeting.  The Standards Committee must not adopt a framework unless it can handle both the potential resulting workload and any resulting backlash from councillors and public.

At South Cambs we have seen enough over the past year of just how divisive the Code of Conduct can be if used foolishly.  If we are to act responsibly, we must find ways of making the Code (warts and all) work as well as possible.  These two documents will need substantial changes before they achieve that objective.

A Hearing is a very expensive and serious matter and should only be held where it appears virtually certain that a sanction is appropriate.  As they stand these procedures will result in huge numbers of unnecessary Hearings with no real outcome.  Yes, the guilty need to be identified and even punished.  But local councillors put in a lot of time for little or no reward.  These procedures would make it even harder to persuade people to stand for election in future.

(Throughout, my references to "Committee" mean either the Standards Committee or a subcommittee of it).

Existing procedures (which in any event are not operated in the even-handed way that the SBE would have us believe) are pretty imperfect but these proposals are much worse.  For example:

• The personal power that the proposed system gives the Monitoring Officer is unacceptable.  I believe that all complaints should go before the Committee with an MO recommendation, rather than simply allowing the MO the authority to stifle or promote complaints.  This would be analogous to the procedure that happens with planning applications.
• There is no proposed mechanism to permit the Committee to throw out vexatious, politically-motivated, tit-for-tat or out-of-time complaints.  It is not good enough to permit only the ESO to do this.

• Apparently the Member is now expected to respond formally to a complaint after having only received the IO's summary.  Given that the Member is also only given 14 days to respond, we are clearly dealing with a system that is being progressively refined to become more and more unfair to Members.  The only fair approach is for the member be asked to respond formally only after having received the full and final complaint.

• The Committee seems to be obliged to arrange a Hearing in any case where a breach of the Code is deemed to have happened and is given no power simply to admonish.  It is vital that the Committee decides whether a case merits a Hearing, not merely whether some inconsequential technical breach has occurred.  Our objective should be to improve the conduct of local councillors rather than to create unnecessary distress and wasting of time and money by holding Hearings which result in no penalty and bring the authority and the Code into disrepute.
• It is extraordinarily high-handed for the MO simply to inform the member of the date of the Hearing rather than first try to agree the date with him or her.  Obviously, if the member won't cooperate then the MO will fix a date.  But refusing this basic courtesy exemplifies the fundamental lack of respect that runs through these documents.
• Zealots might rejoice at the idea of any councillor found guilty of any breach being named and shamed in the press, but this is not the way to improve standards, only the way to generate unnecessary humiliation, resentment and the occasional suicide.  If the Hearing is considered newsworthy, the Press will cover it.

My comments on the documents follow.

Regards

Alex Riley

 

Item 12 Procedure for Local Investigation of Referred Complaints

           

a)       P47 para 2 add "the investigation of allegations of" before "breaches".  Let's not assume guilt in advance!

b)       Bottom of P47 contains yet more evidence of the totally one-sided nature of these procedures.  Where the IO finds there has been no breach, the Committee can overrule and demand a hearing.  Where the IO finds there has been a breach, the Committee cannot overrule.  This could well lead to more Hearings at which technical breaches are confirmed, and no sanction.

c)       (see top of p49) Why is the Monitoring Officer doing this and not the (presumably newly-taken-on) Investigating Officer?

d)      point (i) Note that all the member is told is the MO's (or IO's) summary of the complaint, not the full complaint

e)      Point (ii) is unacceptable if the name of the complainant is withheld.  This is Court of Star Chamber stuff.  If the alleged offence is so serious that anonymity is required then the matter should be dealt with by the Police.

f)        See 2(f)  The member is now required to make a formal response to the charge(s) before seeing them in full !!  This is completely unacceptable

g)      14 days is too short a time.  The SBE takes several months to send these notifications out.  Responses can take quite a while to sort out and the member could be on holiday for part of the time.

h)      See 2(f) (iii) If the role of Investigating Officer is carried out in the same way as the role of ESO has been in my personal experience, then this amounts to handing over one's defence to the prosecuting counsel, something which in proper judicial procedures would not be tolerated. 

i)        Top of p51  What this means in practice is that ESO's can use a complaint as an excuse for a massive fishing expedition and have demanded all kinds of documents which are at best dimly linked to the investigation, eg minutes of past meetings, in the hope of finding something that looks like a breach of the Code.  This is both immensely time-consuming and adds to the sense of witch-hunt which these investigations frequently convey.  Are we really proposing the same?

j)        4(a)(vii) Typo in last word.  What are we doing with this clause?  It is another example of a bureaucrat planning a system to take over the world.

k)      P54 5(b)(ii)  A breach of the Code does not at present automatically lead to a hearing.  Under the current rules the ESO can decide to take no action, or simply issue a written admonishment.  Maybe we just delete the last four words.

l)        Same point in 5(d)(ii).  This implies that ANY breach, however trifling, MUST lead to a hearing!  So the result of this "reform" will be a massive increase in hearings.

m)    5(e) If we insist on naming and shaming any councillor considered to have breached any aspect of the Code to any degree whatever, we are on a dangerous and slippery slope.  It is quite possibly a breach of the HRA to publish in this way if the breaches occurred before these procedures are adopted.  It appears that by stealth it has been decided that such a notice should be published automatically if a breach is found.

n)      5(f) indicates that the Standards Committee apparently can decide that a matter is NOT to be considered at a full hearing.  This is in conflict with 5(b)(ii).

o)      5(f)(i) delete "no sooner than 14 days from, and".  These things take weeks to organise.

p)      5(f)(iii) What does this mean?

q)      5(f)(iv)  This seems to indicate, once more, that the defence's case is in the hands of the prosecution.  Why can the member not call witnesses?

Item 13 Procedure for Local hearings

a)       Item 3  So the Council might (under circumstances unspecified) pay for representation - so long as no breach is uncovered.  Big deal!

b)       Item 4(a) Surely the MO should attempt to agree a date with the Member concerned.  See 8(d).

c)       4(e) is another reason for deleting 14 days from 5(f)(i) .

d)       See comments on 5(f)(iv)

e)       Please explain why 4 and 5 are separate.  They are so nearly identical that they should be merged.

f)         6 I think there is confusion in both documents between the terms MO, IO and "SC legal advisor".

g)       8(d) Apparent confusion between "the member" and "the Councillor".

h)       8(d)(ii) and (iii).  In the interests of preventing the SC looking very foolish indeed the date for the hearing must be agreed with the Member, wherever possible.

i)         8(e) Is too broadly drafted.  If Press and Public need to be excluded then it should be from the minimum possible part of the proceedings

j)         Top of p63 (d)(i) So the Councillor IS allowed to call witnesses (I'm confused!)

k)       The Councillor should be given access to the transcripts of any interview carried out during the course of the investigation.

l)         P63(e)(i)  So the committee could refuse to hear testimony from the IO or from the Councillor??

m)     10(a) is a nicely Stalinist touch.  If further evidence is uncovered it could result in a separate allegation.  As this clause stands it simply confirms the witch-hunt view.

n)        "Findings" presumably includes the sanction, or absence thereof.

o)       P65(g)  We should delete "on not more than one occasion)".  The Committee should, of course, endeavour to ensure that it does not happen more than once.

p)       P64 footnotes: (ii) and (iii) should be combined so that the conditions also apply to (iii).

q)       Error in (iv)

r)        (ix) and (x) should be combined

Form A is unusable and should be replaced by a suggestion of how to go about making the statements

Form B ditto

Form C is, quite outrageously, published before the hearing.  It should be kept confidential unless required.

Form D is sensible

Form E is unusable.