PRESENTATION BY THE INDEPENDENT PERSONS
The Monitoring Officer presented a report, advising that the Independent Person and Reserve Independent Person had attended a training course prior to Christmas 2013 entitled The Roles of the independent Person - One Year on.
The Independent Person and Reserve Independent Person presented an overview of that training course and the issues that arose from it, as follows: INTRODUCTION New arrangements were now 18 months old and, having recently attended workshops for Independent Persons, this was an opportunity to review the present structure for handling complaints, and the role of the Independent Person, in order to improve everyones understanding. COMPLAINT HANDLING Nothing had changed in respect of the purpose of standards machinery which was: to provide a clear set of expectations for conduct of elected Members; expectations set out in code of conduct; and to provide procedure for holding elected Members to account for conduct falling short of code expectations. It was important not to allow debate about the current arrangements and the role of independent persons to deflect attention from these basic purposes. PREVIOUS ARRANGEMENT The Local Government Act 2000 introduced: A national standards body; A national code of conduct for local authorities, although different for different types of authorities; A national process for dealing with alleged breaches of code; Sanctions, including suspension; A national appeals process; and Substantial independent oversight, with Independent Chairs and Vice-Chairs of Standards Committees. The Complaints process introduced by the Local Government Act 2000: When a complaint was received there was an initial sift by the Monitoring Officer to confirm basic facts, such as were they a Member at the time of the complaint and were they on Council business; There was limited discretion over handling of complaints, although there was some discretion if a complaint was likely, but had not yet been made; The complaint was passed to an Assessment Sub-Committee, with an independent Chair, for a decision; Possible outcomes included potential breach of the Code Of Conduct, investigation or no case to answer; If the Assessment Sub-Committee decided there was no potential breach and no case to answer, the complainant was then entitled to seek a review of the decision by a Review Sub-Committee, also with an independent chair; If it was decided that the complaint should be investigated, a Hearings Sub-Committee, with an independent Chair, held a hearing to decide whether the Code of Conduct had been breached or not. If breached, the Hearings Sub-Committee would decide any sanction, such as suspension or further training. CURRENT ARRANGEMENTS The Localism Act 2011 created looser arrangements with: No national standards body; No national code. Councils must have a code, but the content, beyond basic principles was left to each local authoritys discretion. In addition, Parish Councils could have codes which were different from each other as well as different from the District Council; The procedure for handling alleged breaches was less prescribed and had lighter sanctions; Suspension was no longer available, although publication of findings, good or ill, was still available; There was now a criminal sanction for non-declaration of disclosable pecuniary interests; There was now less formal independent oversight, with no requirement for independent members of standards committees; The complaints procedure now: Had more flexibility and discretion; The Monitoring Officer had a greater role and decision-making powers; There were two possible initial routes: Route 1: The Monitoring Officer became aware of possible complaint and had discretion to seek a way to deal with it outside of the complaints procedure, such as informal discussion with the parties or mediation; Route 2: The Monitoring Officer received a formal complaint alleging breach of the Code of Conduct by an elected Member; First duty for both routes: Monitoring Officer must check basic information, such as was the Member complained of in office at time and was the Member on Council business. Second consideration for both routes, although not a duty: Monitoring Officer may decide to use s28 (7) (b) of Localism Act and seek the views of the Independent Person about a possible complaint or a formal complaint; The Localism Act did not specify who an independent person was, only who it was not; With the Independent Person available as a critical friend, the Monitoring Officer was less isolated; Also under s28 (7) (b) not only could the Monitoring Officer seek views, but also the Member complained of, whether District or Parish, may seek the views of the Independent Person; The Monitoring Officer may decide no case to answer and, therefore, not commission an investigation, in which case the complainant must be given reasons, but was not entitled to a review of decision; If the Monitoring Officer received a formal complaint and, having sought the views of the Independent Person, decided to commission an investigation, a report would be prepared for consideration by the Standards Committee; If the Monitoring Officer commissioned an investigation and report, involvement of an Independent Person was mandatory under s28 (7) (a) and their views must be taken into account before a decision was taken; If there was to be a hearing, the views of the Independent Person must be taken into account; Outcomes may include: no further action, informal resolution or a formal decision by a hearing; Formal sanctions available included: censure, removal from committees, restrictions on entering Council Offices and further training; The Member complained of would have a right of appeal. The Independent Person felt that there were a number of questions that should be answered regarding their role and possible conflicts regarding advice, and queried whether a protocol should be drawn up regarding this. He also noted that there was currently no role for the Independent Person in an appeal and questioned whether this should be addressed. The Monitoring Officer advised that, following the above training course, the Independent Person and Reserve Independent Person had discussed various issues with her, including consideration of whether a review of the current Role Description would be appropriate. The existing Role Description was attached at Appendix A to the report. The Monitoring Officer was therefore intending to amend the Role Description, in consultation with the Independent Person, Reserve Independent Person and Chairman of the Committee, and bring it to the next Committee meeting for consideration. Key areas that it is was intended would be considered were: Consultation between the Monitoring Officer and Independent Person, even if there was not a formal complaint; More detailed clarification regarding the consultation role of the Independent Person with a Member who was the subject of a complaint (this linked to one of the statutory roles of the Independent Person, who may be consulted by a Member against whom a complaint was made); and The Independent Persons role at any Hearing The Committee was invited to comment on the matter. Members acknowledged the important role of the Independent Person at all stages of complaints and potential complaints. They agreed that the Independent Person should have a role in the appeals process and noted that there were some discrepancies between the flowchart and other documentation. Members asked that the Monitoring Officer, Independent Persons and Chairman of the Standards Committee take a critical look at all documentation regarding complaints, particularly to address anomalies and the involvement of the Independent Person in the appeals process. RESOLVED: (1) That the report and presentation be noted; (2) That the Monitoring Officers intention to review the Role Description for the Independent Persons be noted; (3) That the Monitoring Officer, in consultation with the Independent Person and Chairman of the Standards Committee, review all documentation regarding complaints, particularly to address any anomalies and the involvement of the Independent Person in the appeals process; and (4) That the resulting Role Description and other documentation, as mentioned in (2) and (3) above, be presented to a future meeting of this Committee. REASON FOR DECISION: To ensure good governance within the Council.
UPDATE ON MONITORING OFFICER WORK PROGRAMME
The Monitoring Officer presented a report in respect of an update on her Work Programme.
The Monitoring Officer advised that, since the Committee last met on 17 June 2013, there were the following updates in relation to complaints: At the time of the last Committee meeting, two complaints were ongoing and being considered by the Monitoring Officer. In relation to these two complaints, one complaint was withdrawn, the other complaint was reviewed by the Deputy Monitoring Officer, who concluded that the complaint merited no further action; and There had been other discussion in relation to matters relating to potential complaints, but those had not yet been formalised. The Committee would be updated at its next meeting. The Committee noted that, since the introduction of the new Standards Regime, the Monitoring Officer role had become increasingly involved in seeking to facilitate positive outcomes for parties, which often included informal interventions. The Monitoring Officer and Hertfordshire Association of Parish and Town Councils (HAPTC) had liaised closely where difficulties had arisen, in order to seek to ensure the best outcomes. Examples were set out in the report, but experience so far indicated that this could lead to more positive outcomes for all involved, although not necessarily touching directly on the complaints process. A key point arising from this was that business was sometimes transacted in a different way, and resulted in more independent Monitoring Officer intervention, with less formal Member oversight and the Independent Person acting as a very important critical friend. The Committee was aware that a Constitution Review Report was considered and approved by the Council on 5 September 2013, and that Council was now operating with an updated and remodelled Constitution. Work was now underway in relation to the next Constitution Review, and the aim was to report that to Full Council on 9 April 2014, with recommended changes and updates. However, it was not anticipated to be too extensive or far reaching, given the extent of the work undertaken in 2013. In respect of training, the Monitoring Officer advised that she had been working with the Councils Human Resource Development Manager and liaising with the Democratic Services Manager and Chairman of the Standards Committee. It was proposed to run a Governance training session in June 2014 (date to be confirmed). The event would be targeted at new and existing Members, facilitated by an external trainer, and supported by the Monitoring Officer. The intention was to arrange a training session that was informal, engaged and interactive. District and Parish Council Members would be invited. Depending on attendance numbers, the Monitoring Officer would intend to offer to other Councils in the County the opportunity for their Members to attend. Proposed key topics to cover would include: The Members Code of Conduct; Declarations of Interests; Bias and predetermination; and Principles of good decision making. In respect of the Standards regime, Members asked how issues that had not yet become formal complaints were brought to the Monitoring Officers attention, and what routes would be available should the Monitoring Officer feel conflicted, or wished to act on her own behalf. The Monitoring Officer advised that potential problems, that may become complaints, were brought to her attention in various ways, which could include a discussion held with someone who was upset about something. If she felt conflicted or wished to bring attention to something on her own behalf, a Monitoring Officer from another Authority would be asked to take on the role, however she would give a more detailed answer at a later date. The Monitoring Officer spoke regularly to Parish Clerks and was therefore aware of issues that may arise in the Parishes. The Parish Councillors informed the Committee that the advice and support offered by the Monitoring Officer to Parish Councils was invaluable. The Monitoring Officer asked Members to identify any specific training issues that had not already identified in the report. Members suggested that pre-determination should be considered as a training subject. Various methods of training were suggested and Members agreed that offering different forms of training, as well as varying times, would encourage more Members to undertake any training available. RESOLVED: (1) That the report be noted; (2) That the Monitoring Officer be requested to advise Members of the routes available to her should she feel conflicted regarding a complaint, or wished to bring attention to something on her own behalf; and (3) That training for District and Parish Members include the subject of pre-determination, with training sessions being offered at different times, and that various methods of training be used. REASON FOR DECISION: To ensure good governance within the Council.
CONFIDENTIAL REPORTING CODE (WHISTLEBLOWING) REVIEW
The Monitoring Officer presented a report in respect of a review of the Councils Confidential Reporting Code for Employees (Whistleblowing Policy), in line with changes to the law that took effect in 2013. The Code, showing proposed amendments as tracked changes, was included as Appendix A to the report.
The Monitoring Officer reminded the Committee that Confidential Reporting (Whistleblowing) was a phrase used to describe circumstances where a person believed that there was something so seriously wrong that he, or she, must disclose information in a manner which would draw attention to it in the public interest. The Public Interest Disclosure Act 1998 gave workers certain protection if they made what were termed qualified disclosures. A qualified disclosure was made if the information disclosed related to one of the following matters: A criminal offence; A breach of legal obligation; A miscarriage of justice; A danger to the health and safety of any person; and Damage to the environment. The Monitoring Officer stated that the existing Policy detailed the arrangements adopted by the Council aimed at ensuring that workers were able to raise concerns in the public interest about a danger, risk, malpractice or wrongdoing within the Council without fear of adverse consequences. The Policy was last reviewed in 2011. The Monitoring Officer explained that the Public Interest Disclosure Act 1998 (PIDA) had recently been amended by the Enterprise and Regulatory Reform Act 2013 (the ERRA). The key relevant changes which required amendments to be made to the Councils Confidential Reporting Code (Whistleblowing) Policy were as follows: A public interest test had been inserted, so now only disclosures made in the public interest were protected. Workers would now need to show that they reasonably believed the disclosure they were making was in the public interest. The ERRA did not define what was deemed to be in the public interest, so it would be for the courts and tribunals to lead the way in how this was to be interpreted; A consequence of the new public interest requirement was that employees would generally be precluded from being able to blow the whistle about breaches of their own employment contract; The requirement for disclosures to be made in good faith had been removed, so it was no longer necessary for a disclosure to be protected. However, good faith remained relevant to the remedy available to the worker ie. any compensation granted may be reduced by 25% if the disclosure was found to be made in bad faith; Employers were made liable for any acts of their employees which caused a detriment (disadvantage) to a worker as a result of their blowing the whistle; and Whistleblowers would be protected from suffering a detriment, bullying or harassment from another employee. RESOLVED: That the minor amendments to the Confidential Reporting Code, as set out in Appendix A to the report be endorsed, and that it be noted that the Code is to be considered by the Joint Staff Consultative Committee and Finance, Audit and Risk Committee, prior to its submission to Cabinet for approval. REASON FOR DECISION: To ensure good governance within the Council.