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Standard Conduct?

Standard Conduct?We recently had reason to look at the 'Standards Board for England' website, and as part of our research, we followed a link to the Tribunals section of the 'Adjudication Panel for England' (APE)

The APE is an independent judicial tribunal established by the Local Government Act 2000 as a disciplinary body to hear and decide cases concerning the conduct of local authority councillors.

Browsing the pages, we came across an interesting entry. It read....

APE0410, Hayhurst, Fylde Borough Council, 03-Feb-'09 10:00am, 2 days, The Dalmeney Hotel Lytham St Anne's.

So it looks as though Councillor Paul Hayhurst is being hauled in front of a two day hearing for some terrible thing he has done at Fylde.

We wondered what it could be, and set off to investigate. What is this awful thing he has done that warrants a two day national tribunal being set up to examine him? Was it embezzlement? Has he stolen taxpayer's money? Had he got one of his pals a planning permission worth a few million? Has he fixed a special favour for someone? Are Brown Envelopes involved?

We were surprised, because although we often disagree with him - sometimes in the past very vigorously - we do know him to be one of the most personally honest and up-front councillors we have ever met.

We were even more surprised when we found out his 'crime'

It appears he is alleged to have publicly called for the resignation of cabinet members and Fylde's Chief Executive at the dreadful 3rd March budget meeting where, after huge losses due to financial incompetence, the decision to close our swimming pools was taken.

Yes, really.

That's what it's about.

What a mountain out of a molehill.

How on earth can something that's likely to cost tens - if not hundreds - of thousands of pounds ever have been allowed to get this far?

We thought we should look into how it has come about.

BACKGROUND
To understand the logic, you have to go back to widespread concern about Government sleaze and the "cash for questions" debacle, after which Parliament asked Lord Nolan to set up 'The Committee on Standards in Public Life' to investigate how things could be done better. Everyone thought this was a good idea. It began work in 1994, and came up with some quite sensible recommendations.

In fact it did such a good job that Government extend the remit to look at Local Government. The Committee's recommendations eventually spawned a body called the 'Standards Board for England' and, over the last 9 years or so, that has done what all such bodies do.

It has taken a perfectly good idea and allowed it to be ruined and strangled by red tape and the dead hand of administrative procedure.

The 'Local Government Act 2000' (which has been a disaster for democracy in the wider sense) introduced sweeping reform of Local Government including cabinet governance and directly elected mayors, both of which concentrate power in too few hands. But Part III of that same Act set out an 'ethical framework' for local government's 116,000 councillors in England and Wales.

Nolan envisaged local regulation of councillor conduct, but the Government did not accept this idea and introduced national regulation. So the Standards Board for England was formed in March 2001 as an autonomous public body, independent of the Crown. (Nice little observation for our Euro sceptic readers there, who will see such independence as intentional creeping Federalisation and a consequential diminution of the powers of our Monarchy)

Since then things have gone downhill.

There are now elaborate Codes of Conduct in every council that councillors must adhere to, with clauses and sub-clauses and so on. Unacceptable conduct and behaviour for councillors is now more or less nationally defined.

But the Standards Board is constantly updating the 'guidance' (for which read instructions) it gives, and setting precedents, and extending its sphere of influence, and widening the scope of its activities.

In parallel with this, it has established an equally elaborate set of institutions responsible for investigation, policing, and compliance with the 'guidance' it produces.

For example, it is currently consulting on whether to add things that councillors do in their 'private' lives to the list of 'indictable offences' they can be reported and investigated for as councillors. Quite soon we expect to see the Standards Board merge with the Audit Commission to become Government's bully-boy enforcer of everything that borough, town and parish councils may and must do. Local Government will be no more.

In its first 12 months of operation, the National Standards Board had just short of 3,000 complaints to deal with. We understand many of these were what we would call 'playground' complaints (eg "He called me a liar") - part of the natural rough and tumble of robust debate. The fault here is that the Standards Board's guidance setting out what constitutes 'misconduct' is so broad that - like the speed cameras - it is almost impossible not to be caught from time to time.

As a result, quite minor 'offences' are caught in the net and must be treated with a seriousness they probably don't deserve. However, when the rules explicitly prescribe standards of behaviour, they must be followed - or the whole system is brought into disrepute. Like justice, there can only be one judgement of culpability, yes or no. It is only the severity of the punishment that may vary according to the nature of the 'crime'.

The caseload continued to increase, and by 2002, another 3,500 cases had landed on the Standards Board's mat. In 2004 it was receiving 300 complaints a month - around 30% to 45% of which were referred for investigation.

In 2003, the average time taken from complaint to completing an investigation was eight and a half months. (With 3,600 complaints a year, that's an average of something like 720 investigating man-years every calendar year). In fact, many cases took well over a year. We heard anecdotal evidence that a backlog of cases 18 months long were waiting to be heard.

The Standards Board was swamped, and something had to be done.

So in May 2008 - instead of changing its 'guidance' to ensure only the most serious misconduct could be reported - the Standards Board relinquished responsibility for first level action to Borough Councils, who each formed (or reformed) Standards Committees of their own.

This, of course, shifted some of the time (and investigation cost) onto council taxpayers. At Fylde, a one-off  sum of 10,000 for 2008/09 was quietly slid into the "Medium Term Financial Strategy" at the Cabinet meeting last week as an ongoing budget item for the future to fund "independent legal advice on behalf of the new Standards Committee". That's now become 10k a year less to spend on real services of course.

Now, any complaint about a councillor goes first to the local council itself, and only if it is 'serious' does it get referred to the National body. We may well look at this local aspect in a future article, but to return to the main part of this article, Councillor Hayhurst's case predates the May 08 deadline so he is being 'prosecuted' by the national Standards Board at the Tribunal.

THE FYLDE EXPERIENCE
Fylde actually had one of the first Standards Board cases (cases APE 31 and 32) when Michael Tomlinson was reported for alleged irregularities concerning a planning application at Newton with Scales. The Case Tribunal disqualified him for one year.

We have no knowledge of the details of that case, but 'fixing' planning permissions generally is something that ought to be seriously dealt with, preferably via the criminal process. Just as losing hundreds of thousands of pounds of public money should be censured and dealt with severely.

But this allegation against Cllr Hayhurst seems, from what we can ascertain, to have been instigated by Fylde's Chief Executive who didn't much like the idea of a call for his resignation being made in public. (That's after staff for which he was responsible reported a loss of 1.2 million of our money, - much of which stemmed from the introduction of the new CIVICA computer system that failed to adequately operate the accounting system, resulting in insufficient or no budget monitoring and no bank reconciliation at Fylde for the first six months of 2007). See 'No Accounting for Fylde', and 'Incompetence or Fraud?'

In the perverted way local government now operates, those ultimately responsible for huge losses now seem able to institute an attack on those that call for them to be publicly accountable.

If true, this would take the 'Bush Doctrine' of the pre-emptive strike to a new dimension. As soon as you feel threatened, the Commissar or whoever can bang in a complaint to the Standards Board, and let the monster consume the opposition.

So what happens now?

THE TRIBUNAL
Well, we understand the tribunal will convene at the Dalmeny Hotel on 3rd February probably around 9:30 or 10am to begin the hearing (which is expected to take two days), and it might involve barristers, evidence, witnesses, cross-examinations and the like.

Yes, really.

We also understand it is being held in public, so anyone interested can sit in the public gallery to watch and listen how the case has come about, how it has been investigated, what Cllr Hayhurst has to say in his defence, and what the decision of the Tribunal is.

We hope to be there and we aim to report the findings each day for our readers who are not able to go themselves.

But especially if you were one of the people at that dreadful 3rd March budget meeting last year, and you have some time on your hands, you might like to go along and see democracy - or what passes for it these days - in action.

According to the APE website, the first job on the day is to set out any preliminary steps and outline the likely procedure. The Chairman of the Tribunal who hears the case will also outline the procedures which will be followed on the day.

Case Tribunals usually adopt a three stage approach:

  • the Tribunal will first determine the relevant facts,
  • it will then determine whether on those facts, there has been a failure to follow a provision in the relevant Code of Conduct - and finally,
  • if a breach of the Code has been found, determine what sanction to apply.

We don't know if the public will be allowed to contribute at the Tribunal, we guess almost certainly not. However, if you were at that budget meeting held at the Rugby Club on 3 March 2008, and you saw and heard what went on, or even if you just have a view about Cllr Hayhurst, we do believe you could pass your view to the Tribunal in writing in advance of the hearing should you wish to do so.

The case number from the website is APE0410 and the contact details for the tribunal on its website are
enquiries@adjudicationpanel.co.uk
The Adjudication Panel for England, 23 Victoria Avenue, Harrogate, N Yorkshire HG1 5RD     Tel 01423 538783

THE SANCTIONS
Well, in theory Cllr Hayhurst could be disqualified as a Councillor and a new election held where he is not allowed to stand. That said, we think disqualification is most unlikely in this case.

The next most serious sanction is suspension from being a councillor for a year, or six months, or three months or whatever. This is possible, especially at the lower end; however we think it unlikely based on recent precedent.

As recently as 21 January this year, the Manchester Evening News carried a report about "an outspoken councillor who questioned whether Salford council's chief executive was up to the job"

It noted that Salford's Chief Executive Barbara Spicer had reported the Liberal Democrat group leader Norman Owen to the council's standards committee after his comments in a newspaper. This had led to an expensive probe by the Standards Board for England.

The result was that Cllr Owen was told his comments failed to treat Mrs Spicer with respect, breaking the code of conduct for councillors, but the breach was not serious enough to bring his office or the council into disrepute - and they decided to take no action.

He went on to question the cost of the investigation. The MEN reported him saying it had been "a complete waste of time and money".

It reported the Chief Executive as saying "I am pleased the matter has been resolved and that Coun Owen has expressed regret but disappointed that it could not have been dealt with earlier, between the two of us."

CONCLUSIONS
We entirely agree about the waste of money. In 2007/08 the National Standards Board spent 10,782,000, of which 10,060,000 was funded by our taxes. That included it's ministerially appointed Chairman's salary of 40k and a Chief Executive's salary of 117,361. It has 104 staff and is based in Manchester.

We couldn't find an average cost for a case, but we do wonder about how much this is all costing both in our national taxes and in Fylde's Council Tax. We could see nothing in Fylde's Members Code of Conduct that says you can't criticise a senior officer if you believe they have failed in their duty. We know many people who would actually expect this of the Councillors they elect.

We also think the Standards Board should repeal much of its 'guidance' on what is, and is not, misconduct. They should remove all the junk that gives rise to petty complaints about "failing to treat with respect" and so on, leaving personal financial benefit and fraud that cannot be prosecuted under criminal law as the only cause for complaint.

Nationally enforced standards should be about serious issues just below a criminal prosecution, not about 'pulling someone's hair'

When you add up the cost of the letters and investigation, the barristers, the statements, the interviews, and the tribunal, it will cost taxpayers another pretty penny on top of the 1.2 million FBC reported as its loss last year, and why it closed the swimming pools.

So, if you have time on 3rd and 4th February, pop along to the Dalmeny to watch the proceedings and get some value from your taxes. It's just possible there could be some fireworks that explode in directions that no-one is expecting.

We hope to bring you progress reports as the case progresses.

26 January 2009 


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