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The evidential documents attached to the Report at
Appendices 3,4,5 and 6 had been disclosed to the Complainant's
Solicitors on the 29th September 2004, 7 December 2004 and 23 May
2005. Appendix 1 is the Complainant's own document and Appendices 2
and 7 are background information.
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Mrs. Caren Lewis, as Investigating Officer, reached no
conclusions about the evidence nor does it make recommendations.
The only other controversial element relates to the issue of
jurisdiction. This was explained in detail to the Complainant's
Solicitors in a letter of the 29th September 2004 and also referred
to in letters of the 12th November 2004 and 23rd May 2005. The
reference, in the report, to the jurisdictional issue, cannot
have taken them by surprise.
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A copy of the procedure, which gives no right to oral
representations at a preliminary hearing was sent to the
Complainant's Solicitors on 23rd May 2005.
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The Complainant's Solicitors have in fact submitted their
own documentation which they wish to be taken into consideration.
This was submitted on Friday the 12th August 2005.
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In summary, the Monitoring Officer suggested to the
Committee that the Complainant had been provided with a reasonable
opportunity to put forward submissions, that the request to defer
should be refused, but that the documents filed by the
Complainant's Solicitors on the 12th August 2005 should be taken
into consideration in any decision by the Committee on whether or
not to proceed to a full Hearing.
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The Chair asked the Committee whether it wished to retire
to consider the request to defer. The Committee did not consider it
necessary to do so and voted unanimously to accept the Monitoring
Officer's recommendation and refused to defer.
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The Chair then welcomed Mrs Caren Lewis, Solicitor, to her
first meeting of the Standards Committee and Mrs Lewis presented
her Report as Investigating Officer, and Appendices
thereto.
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Mrs Lewis advised the Standards Committee that, in
interviewing the Complainant, it became apparent that there was a
jurisdictional issue. Mrs Lewis recommended to the Committee that
they seek the advice of the Monitoring Officer with regard to
jurisdiction and the Chair invited the Monitoring Officer to
explain the issue.
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The Monitoring Officer referred the Committee to paragraph
11 of the Complaint Form at Appendix 1 to Mrs Lewis'
report.
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The content of the form suggested that the conduct
complained of may have covered a significant period of time before
the complaint was lodged with the Ombudsman on the 12th February
2004.
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Having received the complaint, the Ombudsman referred the
matter back to the Council for investigation.
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The Council's Investigating Officer interviewed the
Complainant on the 20th September 2004 when it became apparent that
the final incident alleged occurred on the 2 January 2002.This is
confirmed by the Complainant in her Statement at Appendix
4.
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The jurisdictional concerns arising from the information
were explained in detail to the Complainant's Solicitors on the
29th September 2004.
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The substance of the legal issue is that the Standards
Committee is a statutory body under Part 111 of the Local
Government Act 2000 and, pursuant to SI 1181 (W.171) 2001,
the Committee has a duty to investigate complaints against
Councillors, referred to it by the Ombudsman,which
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allege breaches of the Member's Code. The initial filter
for all complaints is the Ombudsman.
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In this case, the complaint was lodged with the Ombudsman
on the 12th February 2004 and referred for local determination
under Sections 70(3) and (4) of the Local Government Act
2000.
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The jurisdiction of the Standards Committee is therefore
derived from the referral by the Ombudsman. The statutory Standards
Committee has no free standing or independent jurisdiction to
accept and consider complaints.
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The legislation makes it clear that the Ombudsman's
jurisdiction, and that of the Standards Committee, relates only to
breaches of the Statutory Code of Conduct for Members. All County
Councils were legally required to adopt that Code by no later than
the 23rd December 2001.
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Anglesey County Council adopted the Statutory Code at a
meeting of the full Council on the 18 December 2001. Thereafter
County and Community Councillors had two months from the date of
adoption (i.e. up to the 18th February 2002) to endorse an
Undertaking to comply with the Code. Any Councillor failing to do
so would have been automatically removed from office. Section 52 of
Part 111 of the Local Government Act 2000 was read out to Members
confirming automatic removal from office.
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In the present case, the Councillor signed his Undertaking
on the 2nd January 2002. It was date stamped received at the
Council's Legal Section on the 4th January 2002. A copy of the
relevant document was referred to at Appendix 3 of Mrs Lewis'
report.
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In his statement, at Appendix 6 of the Report, the
Councillor confirmed he signed the Undertaking on the evening of
the 2nd January 2002. There is no evidence to challenge that
information and it must be accepted.
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It is clear from the Complainant's Witness Statement that
the last incident she alleges occurred during the day on the 2nd
January 2002. There is no allegation of any incident occurring
after the Councillor undertook to abide by the Code.
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The Monitoring Officer expressed her opinion that had the
date on the Complaint Form been clear from the outset, the
Ombudsman would have rejected this complaint on the basis that he
had no jurisdiction to deal with it. The Standards Committee has no
jurisdiction either.
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The Monitoring Officer referred to a letter from the
former Ombudsman, Mr Elwyn Moseley, to the Managing Director of the
Council, dated the 14th September 2001, dealing with general issues
relating to the new Conduct regime. Quoting from the letter, the
Monitoring Officer read -
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"......... it is unlikely that I shall have
jurisdiction to consider an allegation until the New Year at the
earliest and of course even then only if the allegation relates to
conduct by a Member after the adoption of a Statutory Code and
after the Member had undertaken to abide by it."
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In the present case, the Statutory Code was adopted on the
18th December 2001. The Member undertook to abide by the Code on
the evening of the 2nd January 2002, being a few hours after the
final incident complained of.
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The Monitoring Officer advised the Standards Committee
that it was a matter for them to decide whether or not they had
jurisdiction, but she could see no legal basis whatsoever for
concluding that the Standards Committee had jurisdiction and, as
such, she advised that were the Committee minded to give further
consideration to the complaint, it was her view that the Councillor
would have strong grounds for a legal challenge to such a decision,
either by Judicial Review, or depending upon the final outcome, by
way of Appeal to the Adjudication Panel.
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Members were then given an opportunity to question the
Monitoring Officer to clarify the position before reaching a
decision.
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The Chair invited the Committee to retire to private
session to discuss any of the issues but the Committee confirmed
that this was not necessary and
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RESOLVED unanimously that the Committee had no
Jurisdiction to hear the alleged complaint and therefore would not
proceed with the matter under discussion.
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