Agenda item

6.1

The Committee received a report of the General Counsel which set out recommended revisions for the Committee to consider to the current Procedure for dealing with Complaints and Code of Conduct regarding City, Parish and Town Councillors and Co-opted Members.

6.2

On 19June 2023, the Council’s Strategy and Resources Committee

agreed a number of actions to respond to the findings and recommendations of Sir Mark Lowcock KCB in his report published 6 March 2023. One of the agreed actions, was for the Monitoring Officer to take a report to the Council’s Audit and Standards Committee on whether the standards regime and Councillor Code of Conduct needed updating.

6.3

The General Counsel (David Hollis) referred to each of the proposed revisions to the Code of Conduct and Procedure for Dealing with Complaints and the key points to note were: -

6.4

It was explained that there were currently no right of appeal for the complainant or Member against a decision of the Monitoring Officer, Consideration Sub-Committee or Hearing Sub-Committee. Although, if the Complainant felt that the Council had failed to deal with their complaint properly, they can make a complaint to the

Local Government and Social Care Ombudsman (LGO). It was not recommended that there be another appeal route although there were recommendations to change the wording so that it was clear for the Complainant that they could make a complaint to the LGO.

6.5

It was mentioned that if there was a potential conflict of interest to prevent the Monitoring Officer acting under the protocol, then the matter would be dealt with either by the Council’s Deputy Monitoring Officer or by a Monitoring Officer from another Authority. It was therefore proposed to alter the Procedure to reflect this.

6.6

The General Counsel set out the current 3-stage process for dealing with complaints. It was stated that the Consideration-Sub-Committee does not decide whether a breach has been made, but considered there was evidence of a breach either recommending the investigation to a Hearing Sub-Committee or dealing with the matter by way of informal resolution. As the Consideration Sub-Committee had virtually the same powers as the Monitoring Officer it was recommended that the process be slim down to a 2-stage process, removing the Consideration Sub-Committee stage.

6.7

The General Counsel referred to current sanctions when a Member was found to have breached the Code of Conduct. Further formal sanctions for identified for the Committee to consider.

6.8

It was explained that there were no separate complaints process for complaints by a Member made against another Member. Other authorities do have specific provision such as referring the matter to Group Whips. When such situations arise, the Monitoring Officer with the Independent Person will take an initial view and the current discretion on informal disposal or taking no action is sufficient. There was no recommendation to change the Procedure.

6.9

It was acknowledged that where there is a finding of a breach of the Code of Conduct by a Member, then that it is very much in the public interest, and so there was an expectation to publish the full details, including the name of the Member concerned. However, in some cases the names may need to be redacted for proper lawful purposes. In some cases, the redaction may also include redacting the name of the offending Member concerned. This could happen where perhaps issues of health and safety were engaged, or if the matter was further referred to the police for their separate investigations. Each case needed to be looked at carefully on the facts before publication. Consequently, there was no recommendation to amend the Procedure.

6.10

Currently, the protocol stated The Sub-Committee will meet in public unless it decides that all or part of the meeting should be held in private in accordance with the Access to Information Procedure Rules in the Council’s Constitution. Until a finding of a breach has been made, the Member who has had an allegation made against them is entitled to their right to privacy. Such a Member continues to fulfil the role they were elected to; therefore, making public potential unproven allegations may hinder their role to be undertaken on behalf of their local constituents. This will be taken into account when considering the legal requirements for public access to Hearing Sub-Committee meetings. Consequently, there was no recommendation to amend the Procedure.

6.11

Paragraph 10 of the Code of Conduct referred to gifts and hospitality, stating that Members must declare to the Monitoring Officer within 28 days when they had received a gift or hospitality in excess of £10.  It was mentioned that some discussion had arisen regarding “incidental gifts”. For example, where a donor provides some hospitality in excess of £10 then, it is for the

Member to determine whether or not to refuse such a gift / hospitality in the first instance. There may be occasions where to refuse such a gift may cause personal or perhaps cultural offence to the donor. In such situations it is always for the Member to decide how to deal with the gift at that time. If the Member decides to accept the gift (which may be in excess of £10) then it is recommended that the Member always ensures that they inform the Monitoring officer in writing within 28 days of the donation / gift. The basis for this being the need to ensure complete unequivocal impartiality in decision making by all Members, and the perception thereof. Paragraph 10 of the Code of Conduct does not currently cover the situation just described; namely where the Member believes that to refuse the gift/ donation may be offensive to the donor. Therefore, it was recommended to update the Code of Conduct to address this.

6.12

It was explained that the Complainant can withdraw their complaint at any time. The Monitoring Officer, who has had sight of a complaint that has been withdrawn by a complainant, may nonetheless continue with the complaint if in the opinion of the Monitoring Officer, there were some substantial concerns raised. These concerns would be such as to cause the Monitoring Officer to form the view that it is in the public interest to continue with the complaint, albeit without the pursuit of the Complainant.

Therefore, it was recommended to amend Paragraph 4.6, to make it clear that the Monitoring Officer will in those circumstances make their own written complaint to meet the legal requirement and to support and maintain the high standards required of the Council’s elected Members.

6.13

Members of the Committee asked questions and made comments and the key points to note were: -

6.14

The General Counsel explained that the Independent Person was involved at each stage of the process.

6.15

The General Counsel explained that if a breach was dealt with by informal resolution, and the complainant was unhappy with that, then they could recommend that it was taken to the next stage.

6.16

A Member of the Committee was happy to support the recommendation to move to a 2-stage process.

6.17

A Member of the Committee asked what the benefit was to having the Consideration Sub-Committee.

Another Member of the Committee explained that it was not ideal not having the subject Member attend the Consideration Sub-Committee as Members were unable to question the subject Member. The subject Member does attend the Hearing Sub-Committee therefore they stated that it would be more beneficial to move to a 2-stage process, removing the Consideration Sub-Committee.

6.18

A Member of the Committee asked whether a decision could be reviewed again, if new evidence was found.

The General Counsel explained that as part of the investigation, it was extremely unlikely for further evidence to arise due to how thorough the investigation was.

6.19

The Independent Person mentioned that he did not believe the process was clear for Members of the public and that the timeliness in which complaints were dealt with were typically long and exceeded the 12-week timeframe.

6.20

The Chair (Councillor Mohammed Mahroof) referred to the difficulty in raising a complaint therefore a duty of care for the complainant needed to be considered. He also referred to the timeliness of the procedure and how complainants and subject Members needed to be put at ease as much as possible through the process. He also believed that making decisions public where possible was crucial for members of the public.

6.21

RESOLVED: That the Committee

(1)  considers and comments upon the proposed changes to the current Complaints Procedure and Code of Conduct;

(2)  notes that the Monitoring Officer will present a report to Full Council with the Committee’s recommendation to adopt the revised Procedure (to include additional revisions arising from the meeting,) and that the Constitution is amended accordingly; and

(3)  refers the proposed changes to the Procedure to the Parish and Town Councils for consideration and adoption.