Agenda Item No 5
The Vale of Glamorgan Council
Standards Committee : 11 April 2014
Report of the Monitoring Officer
Guidance from the Public Services Ombudsman for Wales Regarding the Code of Conduct
Purpose of the Report
1. To update members of the Committee of the exchange of correspondence between the Chairman of this Committee and the Public Services Ombudsman for Wales, concerning revised guidance on the Code of Conduct for Members following the High Court decision in the case of Calver.
1. THAT the contents of the correspondence sent to and received from the Public Services Ombudsman for Wales be noted.
Reason for the Recommendation
1. To apprise members of the relevant correspondence.
2. It was reported to Committee on 12 November 2012 that the Public Services Ombudsman for Wales ('the Ombudsman') had issued revised guidance on the Code of Conduct following a High Court decision in the case of Calver, R (on the application of) v The Adjudication Panel for Wales. In that matter, the Court had found that whilst comments which had been posted on a website operated by a Member were sarcastic and mocking, and that the tone ridiculed his fellow Councillors, because the majority of the comments related to the way in which the Council was run and the competence of the Councillors, the comments were 'political expression'. The ruling found that the Adjudication panel took an over-narrow view of what amounts to political expression and no account had been taken of the need for politicians to have 'thicker skins'. In view of the member's entitlement to freedom of expression, and the fact that the majority of comments were directed at fellow Councillors, the finding of a breach of the Code in this case was regarded as a disproportionate interference with the Member's rights under Article 10 of the European Convention on Human Rights. The Standards Committee's decision to censure the Member was therefore set aside by the High Court.
3. The impact of the ruling was that the Ombudsman would have to apply a higher threshold when deciding whether to investigate any conduct complained about which may be regarded as being political expression. The Ombudsman had advised that he would not therefore investigate when such cases of political criticism were made regardless of the tone of the exchange, and indicated that allegations of disrespectful behaviour towards officers particularly those who may hold senior positions, would also be considered in the light of this ruling.
4. In considering the contents of the report, the Standards Committee were of the view that it would be inappropriate to apply the guidance for members similarly to officers as the case of Calver primarily referred to conduct of Elected Members, and that officers should therefore not be exposed to the same interpretation as they were not politically appointed representatives of the Council.
5. The Standards Committee had requested that the Chairman of the Committee write to the Ombudsman expressing the Committee's concern at the proposed interpretation.
Relevant Issues and Options
6. Attached at Appendices A and B [Appendix A] [Appendix B] are copies of the Chairman's letter to the Ombudsman and his response. In particular, the Ombudsman noted the Committee's concerns about the extension of the ruling in the case of R (on the application of Calver) v the Adjudication Panel for Wales to disrespectful behaviour by Members towards officers, especially more senior officers of a Council. Given the implications of the Calver judgement on paragraph 4(b) of the Code of Conduct, the Ombudsman had sought external legal advice on whether there were grounds to appeal the decision and for advice on the implications of the judgement in relation to the interaction of Members with officers of the Council.
7. He had been advised against appealing the decision. In so far as a Member's interaction with an officer was concerned, the advice received was that although the general principals established by UK and European Court of Justice case law would apply, each case would be determined on its particular facts. Clearly the relationship between an officer and an Elected Member was different from that between Members and that being so, it was more likely that a breach of the Code would be upheld where a Member was inappropriately critical of an officer than where a Member was critical of a fellow Member.
Resource Implications (Financial and Employment)
8. There are no resource implications as a result of this report.
Sustainability and Climate Change Implications
9. There are no sustainability and climate change implications as a result of this report.
Legal Implications (to Include Human Rights Implications)
10. The High Court matter which has resulted in the guidance change is Calver, R (on the application of) v the Adjudication Panel for Wales.
Crime and Disorder Implications
11. There are no crime and disorder implications as a result of this report.
Equal Opportunities Implications (to include Welsh Language issues)
12. There are no equal opportunities as a result of this report.
Policy Framework and Budget
14. This report does not affect the Council's Policy Framework and Budget, and is a matter for decision by the Standards Committee.
Consultation (including Ward Member Consultation)
15. This report does not involve any consultation with other parties.
Relevant Scrutiny Committee
- Standards Committee report dated 12 November 2012 entitled 'Guidance from the Public Services Ombudsman for Wales Regarding the Code of Conduct'.
- Copy letter from the Chairman of the Standards Committee to the Ombudsman dated 3 January 2013.
- Copy letter from the Ombudsman to the Chairman of the Standards Committee dated 9 January 2013.
Mr. C. Hope, telephone (01446) 709855
Ms. D. Marles, Monitoring Officer