Abolish this kangaroo court
Bubble — By Rene Kinzett on August 15, 2010 7:00 am
The vague remit of the Ombudsman is leading to investigations based on little more evidence than the Inquisition sought
THE case of Cardiff Liberal Democrat councillor John Dixon has highlighted yet again the mess of the bureaucratic and undemocratic local government standards regime here in Wales.
The office of the Public Services Ombudsman for Wales has been in existence since 2006 and it is charged under the Public Services Ombudsman (Wales) Act 2005 to investigate breaches of the Code of Conduct by members of local councils in Wales. Before the PSOW came into existence, it was the Commission for Local Administration in Wales which had the duty to investigate complaints against elected members. The Local Government Act 2000 introduced the Code of Conduct of Local Government Members and it is under this code and its rules of expected behaviour by elected members that so many councillors are now being investigated.
The Code of Conduct should have been worded to prevent the kind of bullying, abuses of power and damn near corruption that has in the past blighted some of our local councils. Instead, the vague, catch-all language has been misused by citizens with a grudge, politicians with thin skins and incompetent council officers to try to gag, bully and emasculate elected councillors up and down the UK. Anyone can make a complaint about any councillor; you don’t have to live in the ward/division or even the local authority area that the councillor serves. You can be a fellow councillor who has taken umbrage at something said in the Council Chamber, the press or in a leaflet. You can be a resident who does not like the fact that the electorate chose someone other than their favoured candidate. You can even be a phenomenally wealthy group of individuals who believe that:
75 million years ago a tyrant named Xenu ruled the Galactic Confederation, an alliance of 76 planets, including Earth, then called Teegeeack.
To solidify his power, Xenu instructed his loyal officers to capture beings of all shapes and sizes from the various planets, freeze them in a compound of alcohol and glycol and fly them by the billions to Earth in aircraft resembling DC8s. Some of the beings were captured after being duped into showing up for a phoney tax investigation.
One might think that John Dixon’s tweet, that he hoped the “stupid” wouldn’t rub off on him as he passed a Church of Scientology, may have been a wise and protective mantra. One may also charitably believe that his remarks may have been insulting to the Scientologists and their frankly – for most of us – leftfield set of beliefs. However, what on earth is this to do with an unelected and unaccountable bureaucrat? If the content of the tweet was libellous, then let the Church of Scientology muster their considerable wealth and sue Cllr Dixon. If the tweet was likely to cause a breach of the peace or else fell foul of the various incitement or other criminal laws, then let the police investigate the matter.
However, it was left to a complaint (by the Church of Scientology) to the “whingers post box”, AKA the Public Services Ombudsman for Wales. Don’t get me wrong, there is most definitely a need for an office to investigate claims of maladministration brought by members of the public who feel that the local authority, the local NHS or other public bodies have not followed procedures properly or else have shown them extremely poor levels of service. But why do we need a whole raft of public servants to investigate the bizarre claims of politically-motivated individuals who, not content with losing the argument at the ballot box, want to try to undermine elected representatives via the Code of Conduct?
The Code of Conduct for Local Government was a knee-jerk reaction by the previous Labour Government. The aim may have been to prevent corruption, to ensure that elected councillors did not misuse or abuse their positions in terms of offering help to applicants for lucrative planning schemes and so forth. But the provisions of the Code and the resultant investigative apparatus (in Wales the PSOW and Standards for England the other side of Offa’s Dyke) take this well intentioned proposal and has turned it into a Kafkaesque nightmare, where elected officials can have their every utterance taken down and used against them in some quasi-judicial process. A process which defies rules of natural justice and denies defendants the usual protections of a tribunal, including the denial of the right to confront one’s accusers in public forum. Indeed, in a recent decision concerning the accusations levelled against 32 members of the opposition on Swansea Council, the PSOW wrote to the accused telling them that while the proceedings has been dropped, the case would be kept on file and would be taken into account and used against any member should further allegations be made against them.
Before the John Dixon case blew up and was even reported in The Times by Danny Finkelstein, I was wondering whether the Ombudsman had something of a fixation on Swansea, given the number of odd complaints the office has decided to investigate over recent years. Back in 2004, the Ombudsman investigated the nonsense claims against the leader of the Labour opposition for being beastly to the newly-elected LibDem-Con-independent administration during the first council meeting following the elections. More recently, my own comments regarding the age profile of Swansea Council has put me in hot water and I am now facing proceedings following the complaints from a Liberal Democrat and an independent councillor. Not only am I to face questioning as to whether I am guilty of age discrimination, but the use of the term “useless” to describe the performance of two less-than-successful Swansea Council cabinet members, has been judged to be unacceptable by the Ombudsman.
Why can we not get to a sensible situation whereby each local authority in Wales is given responsibility by WAG, perhaps through the new Local Government Measure currently being consulted on, to set up more powerful, visible and proactive standards committees? The current role of a standards committee on any of our 22 local authorities is to basically hear cases against councillors after the Ombudsman has investigated the matter and then only if he thinks that the standards committee is the right body to judge the matter. The standards committee does not write the Code of Conduct, it is not currently the recipient of complaints under the code and it has no power to investigate or consider any complaint against a councillor save for the direction of the Ombudsman. The committees have no real role in promoting good governance within their authorities and their make-up (with more “administration” members than opposition and the independent members appointed by majority voting by each council) can often lead to cries of “foul” by those judged harshly by the committee or else by those who feel undue leniency has been shown to others.
There seems to be a glimmer of hope on the horizon for the future of our local democracy. The Conservatives pledged to abolish Standards for England in their pre-election Green Paper on localism and decentralisation called Control Shift. The pledge has been reiterated by the Minister for Local Government Andrew Stunnell MP in the House of Commons. My hope, and indeed my public call, is that the Welsh Assembly Government and Westminster can agree to end the power of the PSOW to interfere in legitimate political debate as soon as possible by stripping it of the duty to investigate Code of Conduct complaints.
Tags: local government, Swansea
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14 Comments
Rene Kinzett is absolutely right to argue that the Code of Conduct has been totally misused. It even applies to councillors after they have decided to retire from politcs as I found out to my cost. An employee of the Council made a malicious complaint about me almost two years after I retired from active politics. Initially I refused to answer the allegations because they were so absurd and from someone who when I had been the Council Leader had produced a website which was used to publish malicious comments about me. Back came the letter from Bocam Park that if I didn’t answer the allegations contempt of court proceedings would been initiated agianst me. It took me about three days to produce a full rebuttal of the allegations. Fortunately I had kept all the evidence. As I result the Ombudsman not only dismissed the allegations but also unusually produced a public interest report criticising the individual who made the false allegations. But what if I hadn’t kept the evidence? It would then have been my word against his and the odds are that I would have found myself in from of the Adjudication Panel for Wales. If I had employed a barrister in order to defend myself as I know some councilors have been forced to then I would be responsible for the costs.
I’ve always found it amazing that we must be the only western democracy that has established a system whereby unelected individuals can debar democratically elected politicians from office. Recently two Ynys Mon councillors have been suspended from office without a murmur of protest. In USA or Europe this act would have been seen as constitutional outrage. I wonder, for example, how the Ombudsman would deal with a politician who described another as ‘ a sniffling little grub’. Probably that would have merited at least 3 months suspension from office. Who made that remark? It was a classic Julia Gilliard comment about the Liberal opposition Leader in Australia Tony Abbott. In fact it is this very style of straoight forward ralking that had made Julia Gillard popular with so many Australians. As I explained to a journalist friend of mine last week, she is lucky that her parents emigrated to Australia.
During my political career I have been called many things. Sometimes by the opposition but often by members of my own party. It’s part of politics and my attitude was always if you can’t take it you shouldn’t dish it out. I’ve been called a ‘gangster’ by a Plaid Councillor and illegitimate and ignorant by a female Labour councillor from the Rhondda who was in her late 70s. As I explained to her the part I objected to was ‘ignorant’. It all just made me laugh. It was part of the fun of politics. How the Ombudsman would have reacted to a speech I made in Mid Glamorgan Councty Hall in the early 1990s pointing out the contrasting life stories of two teenagers who had been found guilty of arson I dread to think. One had been sent to Rampton and the other became a Tory government minister. I can still hear the laughter from the Labour benches. We all used to laugh when Plaid’s late great Ted Merriman used to interrupt speeches by the sole Tory on the Council and another great guy Peter Hubbard-Miles with cries of ‘The Pink Panther is on the cider again’. It was often even funnier in the Labour Group where debates sometimes ended up in fisticuffs. My oldest daughter first heard the word ‘b******’ as a little girl when one Labour councillor didn’t see her in the member’s room and described me in those terms to another. He went on to be awarded an MBE for services to local government which was another laugh.
The irony, of course , of all of this is that the politicians responsible for drawing up a Code designed to clean up local government thought nothing of misusing their own expenses system . At the end of the day unless a politician has committed a criminal offence then the only judge and jury regarding their conduct should be the electorate in any self respecting democracy.
“I’ve always found it amazing that we must be the only western democracy that has established a system whereby unelected individuals can debar democratically elected politicians from office” said Jeff Jones. Until reading this article I had no idea such injustice could prevail. This Code of Conduct seems to defy the principles of democracy and natural justice and should be repealed or significantly amended.
Daran
I was as ignorant as you on this matterand this is an example of someone outside the judiciary having absolute power against which it is very difficult to appeal.
It is also another example whereby legislation has been so poorly defined and almost unlimited in its application that it is used for purposes that it was not originally designed. This may be one of the consequences of more of our politicians having come up the poilitcal route rather than having come into politics from being barristers, solicitors, businessmen etc. Thus many of our current politiciians do not have the skills or relevant experience required for the rquired scrutiny of Bills at the committee stage.
I am alarmed at the seeming use by the Ombudsman of the “Not Proven” verdict, something that I thought had no basis in the laws of England & Wales but which seems to be slipping in by the back door.
Surely we must return to the bsais that whatever is said in any Council Chamber/Assembly/Committee/Parliament cannot be held as actionable but s subject to moderation by the Speaker/Chair etc.
Outside of these places, surely our libel and slander laws are sufficient and do not further amplification by any other party. The use of this legislation seems to dampen the use of free speech and to amplify political correctness. If any of use feel that something/someone is wrong or mistaken then we should have the unhindered right to say so. After all, is it not what we fought WW2 for, and are not our soldiers in Afghanistan dying today for that same freedom?
“I’ve always found it amazing that we must be the only western democracy that has established a system whereby unelected individuals can debar democratically elected politicians from office.”
… another good development under Labour rule, Jeff?!
It’s mad and dangerous that Cllr John Dixon should have to go through this. One of the good things to come from the Con-Lib government in London will be to roll back this kind of excess which Labour brought in.
Thanks for the comments. I am a bit lost though, in terms of the legislative competence in this area. The 2005 Act was an amendment to the 2000 Act, essentially replacing the old investigative body with the PSOW. So the legislative framework for standards in local government for Wales is Westminster-based. However. does the 2006 Govt of Wales Act now mean that all provisions of the 2000 Act (and therefore the 2005 Act) fall under the legislative competence of the Assembly? Could the Assembly abolish the PSOW or its role in the standards regime, or would the matter still need to be dealt with in Westminster?
I think you are too charitable. I don’t believe for one moment that New Labour actually cared about any of the supposed or real irregularities of local government: that was just their spin; we all know how accomplished they were at that. In any democratic system, there are going to be members you would rather weren’t there, either in terms of their opinions or in terms of their behaviour; try to eliminate such members, and one eliminates democracy. They must have been remarkably stupid if they honestly thought that their pretext worked. And when seen in a wider context, I don’t actually believe that they were stupid: this was of course the government that brought rhetoric about “postcode lotteries”, several thousand targets, an Infrastructure Planning Commission, and tied funding to “partnerships”; in all of this, there was an on-going theme of centralization and ensuring that people were legally obliged to behave as if they were New Labour even if they weren’t. How convenient therefore to find a way to replace councils will local delivery agencies and censure those who refuse to be New Labour apparatchicks! This was no mistake: it was deliberate, malicious, and sinister.
There are many in Wales who voted for MPs who supported this affront to democracy. Yet the natural inclination of these people seems not to be to admit that they made a mistake; instead they tribally seek to justify voting for their grandfather’s choice of party, wishing the evils it has wrought into mere mistakes and illusions, like a religionist trying to excuse scriptural nonsenses and barbarism. This is nothing but Stockholm syndrome.
But even the New Labour regime were not able to fully impose their “modernization” on the House of Commons. Despite efforts to the contrary, there still exists there a meaningful way of ensuring that decorum is kept: the Speaker, elected by the members, will keep order; if members violate the rules of order, they will be named, but there is a basic tenet that orderly opinions are privileged. There are various things I dislike about this system, including the trivial taboo about the word “lie” (as in falsehood), but most of all the disenfranchisement of the constituents of the Speaker (and for that matter, of all frontbenchers, and this problem is worse still in the Assembly, as it has too few members*) — it would be far better if he served as MP for a special emeritus seat — but at least there we have a proper and prompt model for ensuring basic standards of decorum whilst allowing democratic freedom of thought.
Yes, the situation is repairable, and yes, the starting point is to abolish the Ombudsman and the various standards boards and committees; but we should never forget the repugnant behaviour — far worse than the most corrupt of councillors — of the Labour Party in creating this mess.
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* For instance, Monwysion frequently ask where their AM is in dealing with the ongoing local government mess there: the answer is that he is prevented by the collective responsibility of the cabinet from holding the local government minister to account.
I wish certain individuals would realise that I’ve never been a ‘my party right or wrong ‘ sort of person. I have always believed, however, despite its faults that the Labour party is the only party that can bring practical inprovements for the majority of UK citizens in what is an essentially conservative society.
Unfortunately for the Labour Party and the UK as a whole an opportunity for change in 1997 was thrown away because the party was effectively hijacked by a small group of individuals who just didn’t understand the radical tradition in British politics. Iraq and Afghanistan were disasters waiting to happen as anyone with any historical background would have understood. Unfortunately winning elections on low turn outs became a substitute for real change. I’ve always been someone who has called it as it is and will continue to do so. It meant that I was never likely to ever be an MP or even an AM. But so what, I’ve never been prepared to change for political advancement. I’m not even going to vote in the Leadership election because I don’t think on the basis of what I’ve seen over the past few months that any of the candidates have got what is needed to take the Labour Party into the 21st century. I hope that I’m proved wrong by whoever is successful.
Back to the issue of this article. It isn’t just the Labour party which is at fault. Ironically only the Tories who have come out with the idea of abolishing the Code of Conduct. I can’t for the life of me understand,for example, why no one in Plaid Cymru given that it is the constituency represented by its Leader hasn’t come out against what is happening in Ynys Mon. The Assembly is really treating the councillors represnting the island like naughty children instead of mature adults. Democracy has gone out the window and the Council is being treated as the British would treat an errant Indian state during the Raj. At great expense to the taxpayers the Assembly has imported an ex local government officer from England who is getting no where and will achieve in my opinion very little except increase his own bank balance. The only people who can solve the political problems of Ynys Mon council are the people of the island. Yet no one is saying a word when as I mentioned in my early posts voters are denied democratice representation for months by a small group of unelected individuals. If I were a councillor on Ynys Mon I would together with others resign my seat and force a number of by elections on the issue of ‘Who Runs the Island?’ . If voters on the Island want decisions which effect their lives made by effectively unelected Commissioners appointed by the Assembly and an ex local government officer who is just passing through at least they should be given the chance to say so through the ballot box.
It’s a pity the PSO doesn’t investigate the important complaints/issues eg the failures of Swansea Social Services before a tragic failing and then runs for the hills afterwards?
Whilst it appears councillors almost always have to face an investigation after complaint the “executive” appears not always to be so troubled when faced with a complaint. The most common excuses are – matter is before the court or even better the ‘internal’ complaints system can deal with complaint which ultimately has a final complaint to the PSO! Where is the logic in that?
But then where are the councillors to press these complaints against poor services/standards? Too busy fending off complaints against themselves or scared of a complaint by one of the alleged errant council employees/director of service?
Jeff, thanks for your contribution to this debate and I know so many South Wales Labour Party Councillors and activists who share your position – not “my party right or wrong”, but who are constructively critical of their Party, government and administration generally. You and I share a commitment to democracy, to the primacy of the ballot box and are against the creeping bureaucratic approach currently being taken by the WAG Coalition Government. I think we have a real opportunity here to muster the coalition of radical Labour, progressive Conservatives and democratic Nationalists to overturn the nonsense of an over-policed “standards” regime for local government members in Wales. I do honestly believe that nobody could have predicted how the PSOW would have interpreted their role or how the Code of Conduct would have come to be used in this pernicious fashion by complainants. I am willing to accept that a mistake was made and to work with whomsoever wishes to rectify. I also understand that it is indeed under the legislative competence of the Assembly to put these matters right. Lets build a consensus on this and move the agenda forward.
James, of course Cabinet members are bound by collective responsibility and rightly so.
There are, however, four regional Assembly Members representing Ynys Mon. Perhaps one of them might take up the Monwysion cause? They are Brynle Williams, Mark Isherwood, Eleanor Burnham and Janet Ryder and they represent collectively three different political parties.
This is an interesting debate- thanks Rene. I think we can all agree that the case against John Dixon has illustrated the failings of the current system, and should never have seen the light of day. One thing that has not been mentioned is the role of Cllrs in perpetuating this problem. Across Wales I’d hazard a guess that the vast majority of complaints against Cllrs are made by Cllrs of opposition parties.
This is certainly the case in Cardiff, where the Liberal Democrat administration has been as guilty as anyone (if not more) in reporting opposition cllrs to the ombudsman in the heat of robust political debate. (I think John Dixon is probably an exception to this rule – respected by colleagues from all parties for his integrity). The point is, that Cllrs have a responsibility here. We can’t moan that we are not able to enjoy the cut and thrust of political debate for fear of being reported to the Ombudsman, while at the same time submitting complaints against our opponents. We have a duty to set an example.
There is perhaps a glimmer of hope in Cardiff at least, where during a recent debate on social media there seemed to be cross party agreement that things have got out of hand, that we all need to resist the apparent urge to tell tales and incidently where I lost count of the number of times the word ‘stupid’ was used-tongue in cheek of course! Fingers crossed a common sense approach will prevail. Without the complaints being made in the first place, we wouldn’t need to have this discussion.
In Torfaen I saw close up the absolute dogs dinner that the code of conduct can bring. With party political ‘reporting’ done to the other side, then those who cried wolf about being reported doing exactly the same back. Some councillors have even had anonymous leaflets dropped in their ward ‘reminding’ people that all the Ombudsman took no further action ‘they still broke the code of conduct’.
I must admit, as a candidate in 2012 I am very, very nervous under the current system. I have seen friends been reported to the ombudsman to provide a smokescreen for others who were found guilty and censured, only to be cleared. The shit sticking must be very stressful. Given my propensity to, how shall I say it, offer my opinion very strongly, I am generally going to have to go on online hiatus. I don’t believe that serves my political work well to be honest but there you are, particularly given that I use the internet as a candidate very effectively with my core vote, which is in there 20s.
Firstly, I think the criterion for reporting someone needs to be far tighter. Getting a Councillor’s family member to dob in 10 councillors in one time is not acceptable, nor is the defeated candidate doing so. I am not saying they should be barred from doing so – but the local papers just stick a picture of the councillor on the front page, dress them down, then report the actual verdict a few months after as an afterthought.
The problem is that ‘reporting someone’ has become a political attack tool in itself. Is there a way where the reportee is held accountable also?
Jeff Jones returns to this theme in this morning’s Western Mail
http://www.walesonline.co.uk/news/welsh-politics/welsh-politics-news/2010/08/19/call-for-action-on-suspension-of-councillors-91466-27092156/
And a blog post from LibDem AM Peter Black in support of cross-party calls for reform of the standards regime for councillors in Wales: http://peterblack.blogspot.com/2010/08/giving-councillors-freedom-to-be.html