Those Members who had been the subject of a complaint and/or had made a complaint against another Member, declared a non disclosable interest in the next item of business on the agenda.

At the last meeting of the Committee held on 3 July 2012 it had resolved

‘That the Head of Legal and Member Services be requested to bring a detailed report, to the next meeting of the Committee, on the confidentiality of findings on complaints made about Councillors under the old Standards Regime.’  (Minute No. 11 refers)

A report by Acting Director of Law, HR and Asset Management and Monitoring Officer provided advice in relation to whether investigation reports carried out under the ethical framework (prior to 1 July 2012) could be disclosed in the public domain given that a new ethical framework was now in place.

On 21 May 2012, the Council had approved new arrangements in relation to the promotion and maintaining of high standards of conduct by Members.  (Minute No. 14 refers)  The changes included:

(a)  changes to the Article 9 (Terms of Reference of the Standards Committee (and its Panels)) of the Council’s Constitution;

(b)  a new Members’ Code of Conduct;

(c)  a new Protocol dealing with arrangements for investigating and making decisions in relation to allegations made under the Members’ Code of Conduct;

(d)  the new Complaint Form that is to be used in relation to complaints relating to the Members’ Code of Conduct.

The new ethical framework came into force on 1 July 2012.

The Acting Director reported that in considering whether investigation reports prepared in relation to complaints made under the previous ethical framework could and/or should be disclosed, consideration needed to be given to the following:

(a)  Under the previous ethical framework (established under Local Government Act 2000 and the Standards Committee (England) Regulations 2008 (as amended)), where an investigation had been undertaken, the investigation report, its findings and conclusion remained confidential unless disclosed in accordance with the above mentioned Regulations.

(b)  The Guidance issued by Standards for England advised that investigation reports be marked ‘confidential’ and that all interviewees should maintain confidentiality. The member(s) subject to a complaint were required to comply with paragraph 4(a) of the then Code of Conduct regarding the disclosure of information that they receive in confidence (i.e. in relation to an investigation).

(c)  Under Paragraph 7C of Schedule 12A Local Government Act 1972 (as amended), the deliberations of the Standards Committee in reaching any finding on a matter relating to the conduct of an elected/co-opted/advisory member could be exempt from disclosure providing the Committee considered the public interest in not disclosing the exempt information outweighs the public interest in disclosing the information.

(d)  Under paragraph 17 The Standards Committee (England) Regulations 2008, where the Monitoring Officer’s investigation made a finding of ‘no case to answer’, which was subsequently accepted by the Standards Consideration Panel, the Monitoring Officer was obliged to publish a notice in a local newspaper unless the subject member requested that no such notice be published. This was an important issue as there had been a number of matters where a finding of ‘no case to answer’ had been accepted by the Consideration Panel however the subject member(s) had decided not to have the notice published in a local newspaper. 

To disclose the investigation report would disregard the legal right exercised by certain Members not to have the finding of ‘no case to answer’ published/put into the public domain.

  The 2008 Regulations specifically made provision for a subject member to be publically exonerated through the publication of the notice where a finding of ‘no case to answer’ has been reached.

(e)  With the passage of time, the need to maintain confidentiality diminished. However, there remained a number of serving Members and a strong argument still existed for confidentiality of investigation reports.

(f)  Moreover, there was a high risk that any disclosure of investigation reports would (at this time and in the short/medium term) give rise to a number of potentially unintended consequences.  For example:

i.  lead to ‘unofficial’ investigation(s) being conducted by unregulated and unmanaged/able persons– ‘double jeopardy’;

ii.  attract unnecessary and unwanted media attention in relation to historic matters that have been concluded;

iii.  undermine the certainty of closure of a complaint;

iv.  lead to further expenditure of resources in dealing with issues and matters that would inevitably arise despite the matter having been subjected to an independent investigation;

v.  discourage legitimate complaints being raised;

vi.  lead to complainants receiving unwanted attention;

vii  risks undermining the changes in culture and behaviour the Council was seeking to embed.

The Acting Director informed that the Committee must consider what public benefit would be achieved by the disclosure.  The parties involved in a complaint would have all received the investigation report.  The Council had a duty under the Localism Act 2011 to promote high standards of conduct.  The Committee should consider whether disclosure of previous investigation reports was consistent with that duty.

The Acting Director, therefore, advised the Committee to consider all the above issues and implications, including the legal framework and potential implications/impact of disclosing investigation reports in making its decision.

Significant discussion ensued and the Acting Director informed that the detail of complaints against Members could only be published if the complainant(s), other parties named in the complaint and the Member(s) concerned gave their permission.  Consent must be sought as s63 still applied.

The Committee accepted that the detail of Standards complaints submitted under the previous regime should not be put into the public domain. 

However, the Committee requested that the publication of the findings of investigations into Standards complaints against Members under the new regime, subject to certain safeguards be given serious consideration. If there was agreement to this proposal the name(s) of the complainant(s) should also be published. 

The Committee was aware that under the new regime the Monitoring Officer would carry out a preliminary assessment and filter out frivolous and trivial complaints and those that were vexatious at the outset.  Therefore, if there was agreed only those complaints that warranted investigation would end up in the public domain.  

RESOLVED:

That the Standards Working Group be requested to give consideration to whether to publicise the findings of investigations into Standards complaints against Members under the new regime, subject to certain safeguards being put in place at its next meeting on 10 December 2012.