The Public Services Ombudsman, Michelle Morris, is today publishing the final 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.
Terms of Reference: Independent Review of PSOW’s Investigation of Code of Conduct Complaints
Background
The office of the Public Services Ombudsman for Wales was established in April 2006 by the Public Services Ombudsman (Wales) Act 2005. In 2019 this Act was repealed and replaced by the Public Services Ombudsman (Wales) 2019 Act (“The 2019 Act”). The appointment of ‘Ombudsman’ is made by the Crown and the current Ombudsman, Michelle Morris has been in post since April 2022.
The role of the PSOW is to: 1) look into complaints that something has gone wrong with Welsh public services; 2) look into complaints that Welsh councillors have breached their Code of Conduct; and 3) work with public bodies to improve public services and standards of conduct within local government across Wales.
Context
On 26 March 2024, the PSOW was informed by a member of the public that a member of staff (herein referred to as the “Former Team Leader”) had been making inappropriate and unacceptable social media posts of a political nature.
The Former Team Leader was suspended on 29 March 2024 and resigned from her role with PSOW on 3 April 2024. The Former Team Leader had been, until the end of August 2023, 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’).
Scope and Purpose of the Review
The purpose of the independent review is to look at 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. The aim of this review is to provide assurance as to whether the PSOW’s code of conduct processes, delegations and decisions in relation to the assessment and investigation of such complaints have been sound, free from political bias[1] and that lessons are learned from what has happened.
While there is currently 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 the Former Team Leader’s decision-making and potential influence on others. There is no intention for this review to reassess cases afresh or to reopen cases.
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 Former Team Leader 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.
Lead Reviewer
Dr Melissa McCullough
Melissa McCullough is the Commissioner for Standards for the Northern Ireland Assembly (since 2020) and also the Commissioner for Standards for the Jersey and Guernsey States Assemblies (since March 2023). Melissa moved to Belfast from the United States in 1994 and obtained a PhD from Queen’s University Belfast, Faculty of Medicine in 1997. She has worked as an academic in law, ethics and professionalism in the UK and Ireland since 2005. Melissa also holds the Advanced Professional Certificate in Investigative Practice, a Master’s degree in Bioethics and Applied Ethics and a Bachelor of Laws degree. Melissa served as ministerial appointed non-executive director on the Health and Social Care Board in Northern Ireland from 2009 until 2020 and is currently a member of the BMJ Ethics Committee.
Review Team
Mr John Devitt
John Devitt is a Senior Policing Oversight Specialist & Independent Professional Investigator. John is a former Scotland Yard Detective and Senior Investigator for the Office of the Police Ombudsman for Northern Ireland. John has extensive major crime investigation knowledge and experience. He has over his long career undertaken some of the most challenging, complex and sensitive investigations nationally and internationally. John currently sits as an Advisory Panel Member for the charity Inside Justice which reviews and investigates alleged miscarriages of justice. John also supports the Northern Ireland Assembly Commissioner for Standards with her ethics and standards current case work. He has been a member of the Institute of Professional Investigators since 1992.
Mr Shane McAteer
Shane McAteer is the Clerk of Standards at the Northern Ireland Assembly and has worked as a senior public official for over 20 years, with experience in supporting the development and scrutiny of public policy and legislation and in providing procedural advice, policy analysis and professional support to elected representatives. Shane has particular experience in advising elected representatives on Code of Conduct requirements and in supporting the adjudication of complaints against elected representatives. He has expertise in conduct/workplace investigation and holds the Advanced Professional Certificate in Investigative Practice. In addition, Shane has prior experience as a Third Sector CEO.
Evidence Gathering
The Review Team will each be provided access to the case management database. Aside from what is available on the case management database, the Review Team will also gather any and all written correspondence, documentation, and communications relating and relevant to the scope and purpose of the review including email, telephone, digital and hard copy information. The Review team may deem it necessary to interview team members and staff and other relevant thirds parties as may become apparent throughout the review.
Deliverables
The Ombudsman has appointed Melissa McCullough to lead this independent review and report on their findings.
The PSOW considers that Dr McCullough 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 Dr McCullough considers appropriate and issue a final report which the PSOW will share with the Senedd’s Finance Committee. In the event that Dr McCullough considers it necessary to widen the scope of this review, she will inform and agree this with the Ombudsman.
[1] For the purposes of this review, political bias will be found where there is evidence that the decision on a case was influenced by the political affiliation of the person who made the complaint and/or the member who was complained about.