Local investigation and determination of misconduct allegations

Report: 9
Date: 27 February 2004
By: Clerk

Report was taken under the 'any other business' item on the agenda

Summary

The Office of the Deputy Prime Minister (ODPM) has issued draft regulations enabling allegations of misconduct to be referred to monitoring officers to investigate. The Standards Board for England has produced draft guidance to monitoring officers on how to do this. Both are out for consultation, with a closing date of 18 May.

A. Recommendation

That members consider whether they have any initial views to inform the response to this consultation.

B. Supporting information

1. The ODPM has now issued a consultation draft of regulations which will enable Standards Board ethical standards officers (ESOs) to refer allegations of misconduct against members to monitoring officers for investigation. Appendix 1 summarises the main effects of these draft regulations. The Standards Board for England are, at the same time, consulting on draft guidance for monitoring officers on their role – this guidance is attached as Appendix 2. The key points of these two documents are:

• ESOs will be able to refer an allegation for local investigation at any point before they complete their investigation. Circumstances when this might be done include where the matter does not require the heavier penalties available to the Adjudication Panel; when the matter is an isolated occurrence; where the allegation is of an entirely local nature and does not raise matters of principle
• Monitoring officers can appoint someone else to conduct the investigation, so that they can continue to advise the standards committee
• It is open to monitoring officers to refer an allegation back to the ESO, for instance if their local investigations uncover evidence of a more serious nature
• On completing their investigations, monitoring officers (or their appointees) can conclude either that there has been no breach of the code of conduct (and therefore no action required) or that there has. In both instances the monitoring officer must report findings to the standards committee for decision – in the latter case a hearing would result, on the same basis as for hearings following a report by an ESO
• Under the existing regulations, the deliberations of standards committees on a case referred by an ESO are regarded as exempt information. It is proposed that this should also apply to cases investigated by the monitoring officer

2. The Government would be interested to hear the views of consultees on any issues raised by the draft Regulations, and in particular on the following questions:

1. Are the investigative powers proposed for monitoring officers necessary and sufficient?
2. Are the powers proposed for standards committees to consider reports referred to them by monitoring officers necessary and sufficient?
3. Should all cases investigated by the monitoring officer be referred to the standards committee for decision? Or, alternatively, is there a case for giving the monitoring officer the function of determining whether for the most minor cases no evidence of a breach of the code has occurred, so no further action is needed? In the latter option, where there was such a determination, there would be no need for the case to be considered by the standards committee, and so such a case could be referred to the committee ‘for information only’. As the proposals are currently drafted, however, every case will be considered by the committee (either by considering and accepting a monitoring officer’s finding that there is no evidence of a breach of the code or by holding a full hearing into the matter), as a reassurance that all cases, including the most minor, will be subject to committee scrutiny.
4. Should monitoring officers be able to refer cases back to the ESO? Should there be provision for cases to be referred back to the ESO by the monitoring officer if new evidence is discovered suggesting that the case is more serious than originally thought by the ESO when he originally referred it to the monitoring officer? This could assist in ensuring that serious cases are appropriately treated.
5. Is the balance between the actions required of monitoring officers under the proposed Amendment Regulations and the Standards Board’s proposed guidance to monitoring officers appropriate?

3. As the draft regulations and guidance were only published on 24 February there has not been time to draft a response for the Committee to consider. Members’ initial views are invited. However, as the closing date is in May, a draft response will be produced and copied to members for any comments outside of the meeting.

C. Equality and diversity implications

There has not been an opportunity to assess these but any will be taken into account in the response to the consultation.

D. Financial implications

None.

D. Background papers

• Draft regulations and Standards Board guidance.

E. Contact details

Report author: Simon Vile, MPA.

For information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Summary of the main effects of the Local Authorities (Code of Conduct) (Local Determination) (Amendment) Regulations 2004 - Amendments to the Local Authorities (Code of Conduct) (Local Determination) Regulations 2003 – And the Standards Board for England (Functions) Order 2004

Regulation 2; amendment to Regulation 7 of the Relevant Authorities (Standards Committee) Regulations 2001

Under the existing Regulation, the deliberations of a standards committee in reaching its findings in a case following a report by an ethical standards officer (ESO) are regarded as exempt information and not to be disclosed. The amendment provides for this provision requiring that information is not disclosed also to apply where the case has been referred by the ESO to the monitoring officer for investigation.

Regulation 3

This Regulation states that these Amendment Regulations amend the Local Authorities (Code of Conduct) (Local Determination) Regulations 2003.

Regulation 4; amendment to Regulation 2 of the Local Authorities (Code of Conduct) (Local Determination) Regulations 2003

To amend the definition of “monitoring officer” in the Regulations to make clear that it includes any deputy nominated to act during his absence or illness (as permitted by section 5(7) of the Local Government and Housing Act 1989) and also any person nominated to perform any function under section 82A (2) or (3) of the Local Government Act 2000. This latter provision was introduced by the Local Government Act 2003 and enables a monitoring officer to nominate someone else to carry out his functions relating to local investigation of allegations of a breach of the code of conduct when he considers that in that particular case he ought not to carry out the functions himself. This is intended to avoid potential conflicts of interest.

Regulation 5; amendment to Regulation 4 of the 2003 Regulations

Under section 63(1) of the Local Government Act 2000, information gained in the course of an investigation by an ESO must not be disclosed unless one or more of a number of considerations are satisfied. The 2003 Regulations amended section 63 so as to add further circumstances under which there could be disclosure, namely to enable a standards committee to carry out its role or to enable a tribunal drawn from members of the Adjudication Panel to consider appeals from findings of standards committees. This amendment adds a further circumstance to those listed in the Act, as amended by the 2003 Regulations, so that disclosure of information obtained by the ESO may also be made to enable the monitoring officer to carry out his investigation role.

Regulation 6; amendment to Regulation 5 of the 2003 Regulations

To make provision for procedures to allow the monitoring officer to conduct an investigation, including getting access to relevant information and advice. To allow the monitoring officer to be able to make one of two findings following his investigation (ie either that he considers that there has been a failure to comply with the code of conduct, or that he does not consider that there has been a failure to comply with the code), to prepare a report and refer it to the standards committee and other relevant parties. These provisions parallel similar powers already available to ESOs to carry out investigations.

To make provision to allow the monitoring officer at any stage before he has completed his investigation to make a request to the ESO that the matter be referred back to the ESO for him to investigate the matter. The purpose of this is to make sure that if new evidence is discovered by the monitoring officer suggesting that the case is more serious than originally thought, it may be referred back to the ESO who may decide to take over conduct of the investigation. This provision will be supported by guidance from the Standards Board giving advice to monitoring officers about the circumstances in which it is envisaged that cases should be referred back. The aim is to ensure that serious cases are appropriately treated.

Where the monitoring officer makes a finding that he considers there has been no breach of the code, he must refer the case to the standards committee, who can make a decision either to accept the monitoring officer’s recommendation, or else to consider the matter at a hearing of the committee. The intention is that any hearing should take place within the three month deadline set out in Regulation 7 of the amending Regulations.

Regulation 7; amendment to Regulation 6 of the 2003 Regulations

To provide that the procedures which apply for the setting up of hearings apply when a report by a monitoring officer is presented for consideration to the standards committee, and not just, as now, when a report by an ESO is presented.

Regulation 6 of the 2003 Regulations requires that a hearing of the standards committee must be held within three months after the date the monitoring officer receives the ESO’s report. That Regulation also provides that there should be at least 14 days between the monitoring officer sending the ESO’s report to the member who is the subject of the hearing, and the date of the hearing.

Regulation 7 of the Amendment Regulations therefore provides for equivalent timescales to apply in the circumstances where the monitoring officer rather than the ESO provides the report for the committee to consider. The amendments provide that, when the monitoring officer has carried out the investigation, the hearing will be held within three months of the completion of his report. The amendments also provide that there will be at least 14 days between the sending of the monitoring officer’s report to the member who is the subject of the hearing, and the holding of the hearing.

Regulation 8; amendment to Regulation 7 of the 2003 Regulations

An amendment has been made to Regulation 7(3)(iv) and (vi) of the 2003 Regulations to clarify the fact that it should be open to a standards committee to require a member to apologise and undertake training or conciliation, if it wishes, and not merely to apologise or undertake any training or conciliation. The standards committee may impose one or any combination of sanctions.

The sanctions available are now listed separately to make clear the range of options open to the standards committee.

The Standards Board for England (Functions) Order 2004

We propose to issue a functions order under section 57(3) of the Local Government Act 2000 conferring further functions on the Standards Board for England relating to the issue of guidance. The Standards Board currently has the functions as set out at section 57(5) of the Act. These include the issuing of guidance to relevant authorities on matters relating to the conduct of members of such authorities. The aim of the functions order is to clarify and put beyond doubt the extent of the powers available to the Standards Board for England in issuing guidance to standards committees and monitoring officers on carrying out their roles under the Regulations.

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