Statement from Public Services Ombudsman for Wales
The Public Services Ombudsman, Michelle Morris, is today publishing the draft Terms of Reference for the independent review of the Ombudsman’s Councillor Code of Conduct work. The review will be conducted to provide assurance that its processes, for considering complaints that councillors have breached the councillor Code of Conduct, are sound and free from political bias. It will also identify lessons that can be learned from what has happened.
The Ombudsman expects to be able to give details of the person who will lead the review shortly.
The Terms of Reference are being shared with the Senedd Finance Committee. They will be finalised after the Finance Committee’s consideration and in discussion with the independent reviewer.
Draft Terms of Reference
Review of the PSOW’s processes for the assessment and investigation of complaints that members of local authorities, fire and rescue authorities, national park authorities and police and crime panels in Wales have breached their Code of Conduct, to ensure that they are sound, free from political bias and that lessons are learned from what has happened.
Context
On 26 March 2024, the PSOW was informed by a member of the public that a member of staff had been making inappropriate and unacceptable social media posts of a political nature.
The member of staff was suspended and then resigned from her role with PSOW. The former member of staff was a team leader, who, until the end of August 2023, had been leading the Code Team assessing and investigating complaints that local councillors had breached the Code of Conduct for councillors in accordance with the Local Government Act 2000 (‘LGA 2000’).
The aim of this review is to provide assurance on whether the PSOW’s Code of Conduct processes, delegations and decisions have been sound, free from political bias and that lessons are learned from what has happened.
While there is no evidence that the Former Team Leader expressed her personal views or influenced others in the office, PSOW recognises that any review also needs to provide assurance on this point.
Code of Conduct complaints which are not investigated
From 1 April 2021 onwards, the Code Team was responsible for the assessment of Code of Conduct complaints and making decisions on which complaints should not be investigated. Prior to this date these assessments were made in a different team which was not managed by the Former Team Leader.
On 1 September 2023, as happens from time to time in accordance with the operational needs of the office, the PSOW rotated team leaders and the Former Team Leader moved to manage a different team in PSOW. On this occasion, the rotation occurred as a result of the retirement of a team leader who managed a Public Service Complaints Investigation Team.
From 1 September 2023 until 22 October 2023, the Code Team had no team leader, pending the new team leader taking up this role on 23 October. During the time when no team leader was in position, a more senior manager oversaw the work of the Code of Conduct Team. She was, from time to time, assisted by the Former Team Leader.
This review will consider assessment decisions taken by the Former Team Leader and the Code Team from 1 April 2021 until 22 October 2023.
The PSOW applies a two stage test when deciding whether a complaint should be investigated. Firstly, whether the evidence provided suggests that a breach of the Code of Conduct has occurred, and, secondly, whether an investigation is required in the public interest.
As the Former Team Leader did not manage the Team which took assessment decisions on Code of Conduct cases before 1 April 2021, this review will not consider assessment decisions taken before 1 April 2021.
Code of Conduct complaints – cases which are investigated
Decisions to start an investigation under section 69 of the LGA 2000 are taken by the Director of Investigations/Chief Legal Adviser.
Decisions to discontinue an investigation before its completion are taken by the Director of Investigations/Chief Legal Adviser.
On completion of an investigation, the PSOW’s role is to decide which of the following findings under s69(4) of the LGA 2000 is appropriate:
a) that there is no evidence of any failure to comply with the code of conduct
b) that no action needs to be taken in respect of the matters which are the subject of the investigation
c) that the matters which are the subject of the investigation should be referred to the monitoring officer of the relevant authority concerned for consideration by its standards committee, or
d) that the matters which are the subject of the investigation should be referred to the president of the Adjudication Panel for Wales for adjudication by a tribunal.
Decisions that there is no evidence of a breach of the Code (as outlined in (a) above) or that no action needs to be taken in respect of the matters investigated (as outlined in (b) above) are taken by the Director of Investigations/Chief Legal Adviser.
Cases which the Former Team Leader investigated during the period from 1 April 2019 (when the Former Team Leader became responsible for the oversight of Code of Conduct work) until 23 October 2023 and which the Director of Investigations either decided to discontinue or close because there was no evidence of a failure to comply with the code or no action needed to be taken, will be considered as part of this review. Although the Former Team Leader did not make the final decision on these cases, all cases which the Former Team Leader investigated whilst in a management role overseeing Code of Conduct casework for PSOW, will be considered as part of this review.
Decisions to refer a matter for hearing to a standards committee or the Adjudication Panel for Wales under c) or d) above, are taken by the Ombudsman.
These cases are then subject to an independent hearing, in which the investigation may be challenged and scrutinised and witnesses may be called before the relevant standards committee or Adjudication Panel for Wales reaches a decision on whether the councillor complained about has breached the Code of Conduct, and if so, whether a sanction should be imposed.
A councillor may appeal against decisions taken by a standards committee to the Adjudication Panel for Wales.
A councillor may appeal against decisions taken by the Adjudication Panel for Wales to the High Court.
The Adjudication Panel for Wales and standards committees are independent of the Ombudsman and take decisions on cases independently of the Ombudsman. Cases referred to either a standards committee or the Adjudication Panel for Wales have already been reviewed by those bodies. Decisions of those bodies are appealable: that is there is a statutory mechanism in place which allows a councillor subject to a decision of those bodies to seek a further review of those decisions. The Ombudsman has no power to alter a decision of a standards committee or the Adjudication Panel for Wales. The only way in which such decisions can be challenged or altered is via the statutory appeal process. Accordingly, the review will not include these cases.
In summary – Matters to be reviewed
The Ombudsman has appointed X to lead this independent review and report on their findings.
The PSOW considers that X should have a wide scope for comment and should seek to:
- Review the PSOW’s Code of Conduct processes and delegations to ensure that they are appropriate, fair and impartial and free from political bias.
- Review the decisions taken by the former team leader and her Team not to investigate Code of Conduct complaints from 1 April 2021 to 22 October 2023, to ensure that the PSOW’s two stage test was applied properly and decisions were free from political bias (673 cases).
- Review cases where the former team leader was the ‘case owner’ which were investigated and closed without a referral to a standards committee or the Adjudication Panel for Wales from 1 April 2019 to 22 October 2023, to ensure that there is no evidence of political bias in the handling of these cases (11 cases).
- Establish whether there is evidence that the team leader expressed her personal views on political matters akin to her social media posts in the office and/or inappropriately influenced other staff members, in the performance of their duties under the Local Government Act 2000.
- Make any recommendations which X considers appropriate and issue a final report which the PSOW will share with the Senedd’s Finance Committee. In the event that the X considers it necessary to widen the scope of this review, X will inform and agree this with the Ombudsman.
These draft Terms of Reference are subject to agreement and amendment by the person appointed to undertake the independent review