Agenda item

The Interim Director of Legal and Governance reminded the Committee that at the last meeting, the Committee had authorised him to make some changes to the proposed revision to the Code of Conduct complaints procedure and that the documents before Members were the result of those changes.

He explained that at the last meeting he had stated that – in response to a member’s explicit concerns about the inclusion of an appeal process within the procedure, there was no evidence from anywhere else that such a process existed – certainly not within the procedures he had either developed or helped develop, nor in those he had had any experience of.

He drew Members attention to the report commencing at 2.7 and assured the Committee that there were sufficient safeguards within the process to ensure that there would be no need for a Member to feel that they were being denied justice if, at the end of the process, a Hearings panel upheld the allegation(s) because the process to that point was robust, open and simple.  The Monitoring Officer would review the claims informally first to see if the matter could be resolved, if not an Assessment Panel drawn from members of the Adjudication and Review Committee would consider it further and if it was of the opinion that there were grounds for a formal hearing, that would be undertaken by a Hearings panel also drawn from the Adjudication and Review Committee, but different from the Assessment Panel. 

He was mindful of the fact that there were only 10 Members available in the Committee and also that the largest objection to the process currently in use was that it was open-ended and this tended to delay and even frustrate natural justice.  This process was strictly time managed and if it was extended by the addition of an appeal procedure, there would be delay, cost and the difficulty in finding an appropriate Appeal Panel.

Councillor Burton asked for permission to present his objection to the procedure being adopted without an appeal mechanism and spoke about the right of an accused to appeal, citing processes (like parking offences) where there were appeal processes to ensure that the innocent were not penalised through process error or other mistake.  He contended that it was an important legal principle enshrined in law since Magna Carta and to remove it from the process would be to render that process flawed and open to abuse.

A Member observed that Magna Carta provided for trial by one’s peers – and the process as set out in the report provided for that.  Another member observed that appeals procedures did not exist in all places, citing clubs disciplinary procedures for their members.  The club’s disciplinary board determined the decision from the facts and set the penalty.  There was no appeal process there and this was identical in form to that.  Where appeals processes were in place they were more often for general matters (like parking fines).  It was conceded that the judicial procedure had an elaborate set of appeals processes built into it, but the justice system was very slow and very expensive and did not equate to what was being proposed here.

Councillor Burton responded by asking about the process when the Standards Committee existed, asking for confirmation that an appeal process existed then.  The clerk replied that in those days there was an external body to which appeals could be made: the Standards Board of England, but this had been abolished by the Localism Act, the same legislation which had abolished the need for Standards committees and which had, effectively made each authority responsible for its own members’ behaviour monitoring.

Councillor Tucker asked leave to speak and, having verified from the Constitution that, as a Group leader he could indeed address the Committee, he stated that he wished to fully support his colleague’s contention that the process being considered ought to have an appeal procedure within it to ensure that Members, alleged to have broken the Code of Conduct, could argue their innocence if the hearing Panel found against them.  Without it, the process was open to abuse.

A Member suggested that whilst not ideal, perhaps – if another Council agreed – an appeal could be made to its members.  Councillor Burton thought this would be a good idea and not likely to be too costly – though he argued that material cost should not be a considerations in the balance of an honest decision

The Interim Director of legal and Governance considered that it would be impractical to try and set up such a process and doubted whether it would even be possible to find an authority which would agree to undertake such a task.  Would another authority want havering councillors to judge its own Members? Would Havering Members be happy to submit themselves to the decisions of those of a different authority?  Could those decisions be enforced anyway?

Another Member expressed the opinion that the process before the Committee looked robust enough.  Officers needed to have the trust and confidence of Members otherwise the whole process would cease to function.  He added that no system, whatever it was, was going to be perfect, this appeared to be good and it needed the good-will of both Members and officers to make it work properly.

Having discussed the matter at length, the issue of whether to accept the recommendations as set out in the report was put to the vote.

In favour of the motion: Councillors: Joshua Chapman, Roger Westwood, Jason Frost, Ray Best, Barbara Matthews, John Mylod, Alex Donald, Brian Eagling and David Johnson

Against the motion: Councillor: Michael Deon Burton

The motion was CARRIED by nine votes to one.

1.      The Committee approved the arrangements for dealing with allegations against Members as set out in the appendix to the report and

2.    Referred the report to the Governance Committee to include the arrangements in the Council’s Constitution:

Councillor Burton expressed his thanks to the Committee for allowing him to present his arguments in favour of an appeal process at length to it and that although he did not agree this was the model he would have preferred he accepted that it was the will of the Committee and accepted its decision.