Written evidence from the Adjudication Panel for Wales (WW13)

Summary

· The legislative framework within which the Adjudication Panel for Wales operates was established by the Local Government Act 2000 ("the 2000 Act").

· While there was a great deal of commonality between the local government ethical frameworks for England and Wales introduced by the 2000 Act, there were a number of important differences reflecting the differing circumstances in Wales.

· In the case of police authorities in Wales, the legislative framework appears muddled and to make little practical sense. It is the Adjudication Panel for Wales' understanding that this is largely a consequence of responsibility for policing in Wales being reserved to the UK Government.

· There has been further divergence in the operation of the ethical frameworks in each country arising from changes in England introduced by the Local Government and Public Involvement in Health Act 2007. Devolution has enabled the Assembly Government to adopt different approaches to match the circumstances and needs of Wales.

· The fundamental reform of tribunal services in England has not, to date, been mirrored in Wales. While this may be a natural consequence of devolution - the Assembly Government would no doubt point to other priorities - there are potential benefits from reform that are not being realised in Wales.

Introduction

1. The Adjudication Panel for Wales ("the Adjudication Panel") is grateful for the opportunity to contribute to the Welsh Affairs Committee's inquiry. The Committee's general call for evidence published on 23 October 2009 sought submissions on a number of aspects of devolution, including the relationship between Whitehall departments, the Wales Office, the Welsh Assembly Government and the National Assembly for Wales. The Adjudication Panel has no direct knowledge or experience of these matters and, consequently, is unable to submit evidence upon them. However, the Adjudication Panel is pleased to respond to the specific request from the Committee (dated 15 December) to hear "from the ombudsmen services in Wales, and how devolution has led to divergence in policy and legislation."

2. A background note on the role of the Adjudication Panel is below. However, the Committee will wish to note that while the Panel is an independent statutory body, it does not provide a service akin to that of an ombudsman.

Role of the Adjudication Panel for Wales

3. The Adjudication Panel was established as part of the new ethical framework for local government in England and Wales put in place by the Local Government Act 2000.

4. The Panel has two statutory functions:

i. To form "case" tribunals to consider reports from the Public Services Ombudsman for Wales following the investigation of allegations that a member of a local authority[1] in Wales has failed to comply with his/her authority's code of conduct; and

ii. To consider appeals by members against the determination of their authority's standards committee that they have breached the code of conduct.

5. Where a case tribunal finds there has been a breach of the code of conduct, it has powers to suspend a member for up to one year, or to disqualify them from holding office for up to five years. An appeal tribunal's powers of sanction mirror those of the standards committee and range from a censure to a suspension of up to six months.

The Legislative Framework

The Local Government Act 2000

6. As stated above, the ethical framework for local government in England and Wales was established by Part III of the 2000 Act. While, when first established, there was much in common between the respective frameworks for the two countries, there were also some important differences. These and further divergences of approach introduced subsequently are described below.

7. In essence, the framework comprises:

· a set of general principles of conduct (derived from the "Seven Principles of Public Life"[2]) and a statutory model code of conduct.

· Local standards committees to advise members and authorities on standards of conduct.

· The investigation of alleged misconduct by the Public Services Ombudsman for Wales (and its predecessor body), the Standards Board for England or an authority's monitoring officer.

· The adjudication of such investigations by local standards committees or, generally in more serious cases, the relevant Adjudication Panel for Wales or England.

Differing Approaches Between Wales and England

8. The (then) National Assembly for Wales moved quickly to implement the legislative framework fully following commencement of the provisions of the 2000 Act. Importantly, this included subordinate legislation to enable the Public Services Ombudsman for Wales to delegate the investigation of allegations of misconduct to local monitoring officers and for their adjudication by local standards committees. This meant that the Ombudsman and the Adjudication Panel could concentrate on more serious allegations. By comparison, all allegations in England had to be investigated by the Standards Board and, where appropriate, referred to the Adjudication Panel for England for decision. It is common knowledge that this created a backlog of cases which led to criticism of the operation of the framework in England at the time. In some respects, therefore, it could be said that devolution meant that the Assembly Government was not hindered by the approach in England which meant that criticism of the new ethical framework on the scale seen in England was largely avoided.

9. In framing the new legislation for Wales, the National Assembly for Wales decided that it did not wish to establish a new body akin to the Standards Board for England to undertake investigations in Wales. Instead, it was decided to expand the role of the then Commission for Local Administration in Wales (ie the Local Government Ombudsman). The functions of the Commission now form part of the functions of the Public Services Ombudsman for Wales. The Adjudication Panel understands that this approach was thought to offer a more cost-effective and proportionate solution for Wales, whilst drawing on the Ombudsman's expertise in investigating complaints about local authorities.

10. One area where devolution (or perhaps lack of it) has had an impact is that relating to the ethical framework for police authorities in England and Wales. The 2000 Act presents a somewhat confusing and inconsistent approach:

· Police authority members in Wales are subject to the same code of conduct as members of police and other local authorities in England. For those members who are appointed by their local authority, this means that they need to understand two different codes. While the codes are similar, there are some important differences which have the potential to cause confusion for members when acting in their different roles.

· The power to issue guidance on conduct matters to police authorities in Wales rests with the Standards Board for England, but the investigation of alleged misconduct is a function of the Public Services Ombudsman for Wales.

· The constitution of police authority standards committees in Wales is subject to regulations made by the UK Government which are similar to those for their counterparts in England. However, while police authorities (and other local authorities) in England have local sifting arrangements for allegations of misconduct (see below), these do not apply to police authorities in Wales.

· Reports on allegations of misconduct by members of police authorities in Wales are heard by tribunals drawn from the Adjudication Panel. The regulations governing the tribunal procedures are made by the Welsh Assembly Government. Appeals by members of police authorities in Wales against the decisions of standards committees are also considered by the Adjudication Panel. However, the procedures and sanctions are subject to regulations made by the UK Government and differ from those applicable to appeals by members of other local authorities in Wales.

11. While the Adjudication Panel has no direct knowledge of the policy reasons for this approach, it understands that it is largely attributable to policing matters not being devolved to Wales. The Adjudication Panel makes no comment on the desirability or otherwise of that, but it believes that the current approach is muddled, inefficient, makes little practical sense and is unsustainable in the long term. Any changes would need primary legislation, which would require collaboration between the Assembly Government and the UK Government.

Local Government and Public Involvement in Health Act 2007 ("the 2007 Act")

12. The 2007 Act introduced a new local approach to the handling of allegations of misconduct in England. Allegations no longer go initially to the Standards Board for England, but instead must be made to the local standards committee. The local standards committee is responsible for assessing allegations and determining whether an investigation or some other action should be undertaken. The Standards Board for England role has changed as a consequence. It is now a strategic regulator responsible for, among other things, providing independent oversight of the local standards framework.

13. These changes have not been introduced in Wales and there has been no indication from the Assembly Government that it is considering a similar approach. The Adjudication Panel has no evidence to support one approach over the other at this time, but merely notes that this difference is a natural consequence of the devolution settlement.

Reform of Tribunal Services

14. Tribunal services in England are undergoing fundamental reform following the enactment of the Tribunals, Courts and Enforcement Act 2007. Over time, this will bring tribunals together within a unified two-tier tribunal structure: a First-tier Tribunal and an Upper Tribunal. Both tribunals are split into Chambers comprising similar jurisdictions. As part of the reforms, the Adjudication Panel for England ceases to have a separate existence and becomes part of the General Regulatory Chamber of the First-tier Tribunal in January 2010.

15. The Tribunals Service, an executive agency of the Ministry of Justice, provides administrative support for the tribunals' judiciary. As a single body, it will bring greater commonality of standards and efficiency to the tribunal system, resulting in a more responsive and focussed service for users. The unified tribunal system will also facilitate "cross-ticketing" of tribunal judges and members within the same chamber, enabling more effective and fuller use of their skills, knowledge and experience.

16. The reforms do not apply to tribunals operating solely in Wales, though the Upper Tribunal will hear appeals from some such tribunals. The UK Government's 2004 White Paper[3] which preceded the reforms recognised the complexity of the devolution settlement for Wales (and for Scotland and Northern Ireland) in relation to tribunal services. The White Paper indicated that the UK Government would review with the (then) National Assembly for Wales the future arrangements for all tribunals in light of the reforms in England. However, the pace of change in Wales is at best slow in comparison and the Assembly Government's position remains unclear. In 2009, the Welsh Committee of the Administrative Justice and Tribunals Council commenced a review of tribunals operating in Wales. It is understood that this will inform Assembly Government thinking on these matters.

January 2010

[1] In this context, a local authority means a county/county borough council, community council, fire and rescue authority, national park authority and a police authority.

[2] Standards of Conduct in Local Government in England, Scotland and Wales , Third Report of the Committee on Standards in Public Life (July 1997)

[3] Transforming Public Services: Complaints, Redress and Tribunals (DCA 2004)