Agenda item

To consider a report by the Monitoring Officer (copy enclosed) on a proposal by the Public Services Ombudsman for Wales’ to introduce a new Public Interest Test when considering whether or not to investigate allegations that an Elected Member has breached the Code of Conduct.

A copy of a report by the Monitoring Officer (MO), on the proposal by the Public Services Ombudsman for Wales’ (PSOW) to introduce a new Public Interest Test when considering whether or not to investigate allegations that an Elected Member had breached the Code of Conduct, had been circulated previously.

The views of the Committee had been sought on the discussion paper produced by the PSOW, Appendix 1, on a proposal to introduce an additional test when considering whether or not to investigate a complaint made to him that a Member had breached the Code of Conduct.  The PSOW’s office had for a number of years applied a two stage test in considering whether or not to investigate an alleged breach of the Code of Conduct by a Member.

The first stage would be to establish whether there was evidence that a breach of the Code had actually taken place.  The second stage would be to consider whether the alleged breach, if proved, would be likely to lead to the imposition of a sanction by a Standards Committee or the Adjudication Panel for Wales.  In considering the likelihood of a sanction being imposed, the PSOW’s office would take into account cases considered by Standards Committees across Wales and the action they had taken.

The PSOW had expressed concerned about the number of low level complaints received by his office and was seeking to introduce an additional test which would consider whether an investigation or a referral to a Standards Committee or the Adjudication Panel was required in the public interest.  As indicated in Appendix 1  he saw his role as investigating serious cases in order to maintain public confidence in standards in public life.  He would not open an investigation unless he considered it proportionate to do so, given the circumstances of the breach alleged.

          In determining whether an investigation was in the public interest, the PSOW would consider a number of factors, as set out in Appendix 1.  Not all of the factors would apply in every case and the weight to be given to each would depend on the circumstances of each case.  The PSOW had made it clear that at a time of diminishing resources he would have to prioritise the matters that his office would be investigating, and it may no longer be appropriate to apply resources to the investigation of low level complaints.       In addition he would consider whether or not to continue the practice of referring cases that, although there may be evidence of a breach he had decided not to investigate, to Local MO’s for investigation because of the second limb of his current test.  Members’ views had been sought on this point.

The MO confirmed the risk that if the PSOW’s Public Interest Test was applied at too high a threshold there could be the possibility that breaches of the Code of Conduct which should be the subject of a sanction were not investigated.

The Chair understood the reasoning behind the proposed introduction of the public interest test.  However, he suggested that the process could dilute the Code of Conduct and that public perception of such an approach to investigations could reduce confidence in the democratic process, if introduced solely on the grounds of the availability of resources.  The Chair suggested that the utilisation of the Standards Committee, as a mechanism to deal with low level complaints, could satisfy complainants that their grievances had been deliberated.

The MO outlined the current three stage process and explained that the opportunity to deal with complaints locally may also be removed, which raised concerns that situations when they arise were not permitted to escalate.  Councillor D.E. Jones referred to the importance of the consideration given to the seriousness of a breach of the Code of Conduct when deciding on the need for further action.

Members of the Committee agreed with the views expressed by the Chair that the response to the PSOW explains that the Standards Committee understands the reason for the proposed introduction of the public interest test.  However, it was felt that if the only reason for not undertaking an investigation was because of the public interest test, then in those circumstances the matter should be referred to the relevant local MO for consultation with the respective Standards Committee.

The MO explained that the issue of referring Member versus Member cases for local resolution had not been an issue in Denbighshire, but had been of benefit in other Local Authorities.  With regard to how beneficial the system of offering cases which the Ombudsman considered would be unlikely to attract a sanction for local investigation, the MO explained that opinion on this matter was divided.  However, he felt it was useful to have the flexibility provided that MO’s were not automatically expected to investigate all issues.

In reply to a question from Councillor D.E. Jones, the MO provided details of how the PSOW would consider evidence of similar behaviour on the part of a Member, depending on the nature of the complaint received, as referred to in paragraph 6 on Page 3 of the report.

During the ensuing discussion the Committee expressed its support for the proposal on Page 21. (4) with regard to action taken against those politicians who breach their code of conduct by making vexatious complaints.

Following further discussion, it was:-

RESOLVED –that the Standards Committee:-

(a)            notes the proposed introduction of a Public Interest Test as set out in the paper received from the Ombudsman attached as Appendix 1 to the report, and

(b)            requests that the Monitoring Officer conveys to the Ombudsman the views expressed by the Committee on the issues considered.

  (G. Williams to Action)