HC Deb 27 January 1999 vol 324 cc447-54

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Betts.]

10.24 pm
Mr. Don Touhig (Islwyn)

I very much regret that I have had to ask for this debate. I did so because of what I believe is the indifferent response of the local government ombudsman in Wales to a serious matter that I have raised with him. Before becoming a Member of Parliament, I spent 20 years serving as a councillor, and I hold strongly to the view that local councils must be accountable for their actions. More than that, they must be seen to be accountable and they must act in an open and transparent manner. That is the only way to retain public confidence and appreciation of the valuable services provided by local councils, and the only way in which local councils can gain respect for the decisions they take.

The public must have confidence in the Commissioner for Local Administration in Wales, more commonly known as the ombudsman. As we all know, the ombudsman has a crucial role: he has the task of policing local councils and ensuring that any complaints made against a council by the public are properly investigated. I know from experience the extreme frustration felt by any individual who thinks that he or she cannot obtain a fair and impartial investigation after arriving at the belief that the local council has acted improperly. That is why individuals who have a grievance against their local council often look to the ombudsman for justice.

On the whole, the ombudsman does a good job and provides an essential public service. I will go so far as to say that I should not be opposed to the ombudsman being given even greater powers to ensure that a local council found guilty of maladministration is made to change its ways. Having said that, I regret having to express my anger and disappointment at the ombudsman, following an investigation into a complaint made against Caerphilly county borough council last year.

On 10 August 1998, the ombudsman published a report after investigating a complaint made against the council following its decision to refuse a planning application. In his report, the ombudsman concluded that the council was guilty of maladministration, because one of its members, at a meeting of the planning committee, had failed to declare an interest—that he was a friend of the principal person opposing that planning application. By not declaring an interest in the matter when it came before the planning committee, it was said by the person who called in the ombudsman to investigate the complaint, the councillor in question had influenced the committee to refuse the planning application. I add, less in mitigation than to put the fact on the record, that the appeal against the council's decision to refuse the planning application, which went to the Welsh Office, was eventually turned down.

Although only one councillor was cited in the original complaint upheld by the ombudsman, the ombudsman went on to name three other councillors on the grounds that they were members of the same local Labour party branch as the person who had opposed the planning application in the first place. I have no criticism to make of the ombudsman's decision, in so far as he was satisfied that the four councillors were in breach of the national code of local government conduct as it relates to members declaring an interest: they knew the person who opposed the planning application. Indeed, the ombudsman commented that he had a statutory duty to name the councillors involved and I do not challenge that, because the House decided to give the ombudsman that responsibility, so he is right to carry it out.

My concern is that, in his report, the ombudsman made the following statement: the decision to refuse the planning application was instigated by the local councillors in a private meeting". Let me stress, there was no private meeting of councillors. The report was wrong, and the ombudsman was wrong. Caerphilly county borough council's monitoring officer, who is the person charged with providing the ombudsman with the information necessary to draw up his report, made the following statement: the decision to refuse the planning application was instigated by local councillors at a previous meeting". That was a "previous" meeting of the planning committee, not a "private" meeting.

Despite being given the opportunity to correct the error, the ombudsman declined. The error was the reason for the following comment that the ombudsman made when he censured the council: It is of course quite natural and reasonable for councillors to discuss in private, issues due to be considered by the Council at a formal meeting. What is not acceptable, however, is for decisions on a planning application to be made prematurely in private by a small group of local councillors before the material issues have been fully considered by the appropriate committee and the arguments for and against a particular course of action have been fully aired. Such a process is unacceptable. Let me stress that there was no private meeting of a small group of councillors. It never ever took place.

The serious inaccuracy was queried with the ombudsman in a letter from the council dated 28 July last year containing its comment on his draft report. I have the letter here. On page 17, paragraph 3 the ombudsman was asked the specific question: Could you please explain the reference to a private meeting". The ombudsman replied on 31 July with a two-sentence letter that did not even acknowledge the question from the council. What is the point of circulating a draft report on a complaint against a council to the council, its officers and so on and then ignoring the comments on that draft report?

Despite being made aware of this considerable error, on which he based a substantial part of his criticism of the councillors, the ombudsman made no attempt to correct it. As a result of the inaccuracy, the councillors involved were the subject of newspaper stories and banner headlines which questioned their integrity and brought each of them into grave disrepute. There were headlines such as "Councillors rapped by ombudsman". The story said that the ombudsman criticised the councillors for meeting in private and predetermining the planning application. Another story was headed "Councillor: I acted improperly", and made more references to private meetings on planning matters. Another headline was "Councillors were wrong." Again, the story contained references to the councillors holding a "private", not a "previous", meeting of the planning committee. Another story with the headline "Rapped over the knuckles" contained further references to the councillors holding private meetings. Such meetings never took place.

I stress that I do not challenge the core conclusion reached by the ombudsman in his report. He investigated and reached his conclusions and I do not challenge them at all. I do challenge his arrogance in failing to correct a blatant and serious error in the report. More than that, I am advised that he later refused to alter the report or reissue it. He simply offered a perfunctory apology to the councillors involved, saying that a typographical error had been made. How many times have we heard the poor old typist blamed for getting it wrong?

It cannot be right to base a report's conclusion, even in part, on a typing error and not issue an amended report. Stating that there were private meetings when there were none and linking the term "private meeting" to the main findings of the report had serious consequences for the councillors and the local authority.

The suggestion that the councillors met in secret to predetermine a planning decision has had an appalling impact on the public perception of the council in general and the councillors in particular. They live in a small valley community where everyone knows everyone else. I know the councillors well. They have told me that in the churches, chapels, shops, pubs and clubs, they have all been subjected to the odd remark. People say, "What do you think about councillors having these private meetings to predetermine planning matters?" A private meeting never took place. The councillors have had their good names taken away from them without justification. I know them; they are decent people who have given years of public service.

Like all Members of the House, everyone in public life can expect to take knocks from time to time, but no public official has the right to damage another public servant's reputation unjustly. I have no criticism of the press reports of the matter. The press reported what the ombudsman had put in his report. What is at issue is the councillors' integrity and the truth of the report.

The impression remains even today that the councillors met in private to determine the planning application before it was considered by the appropriate committee. It is a matter of record that all the comments made by the councillors named in the report were made in public at open meetings that were attended by the press and members of the public. The failure of the ombudsman to correct such an evident wrong has affected public confidence in the councillors and the council. That is most unjust.

Mr. Lembit Öpik (Montgomeryshire)

Does the hon. Gentleman agree that, by and large, the ombudsman seems to be a reliable point of contact for people with complaints? Does he agree that, above all, it is absolutely vital that the ombudsman be seen to have an impeccable record of scrutiny and scrupulous decision-making because he or she is the last point of call for those who have a complaint about a local authority decision?

Mr. Touhig

I agree with the hon. Gentleman, and I have made that point. I subscribe to the ombudsman's role, but in this case he has acted unjustly. Surely his role is to serve justice, not to create an injustice, which is what he has done in this instance.

Had the ombudsman corrected the error, I would not be raising the matter tonight. At no stage has he shown a willingness to correct the error. He is not prepared to publish a new report. He did not correct the error when the council's head of legal services wrote to him querying the reference to the private meeting. In fact, when he replied, he dismissed the error as if it were a peripheral matter, and he has not corrected it since.

I appreciate that my hon. Friend the Under-Secretary has limited powers with which to deal with the ombudsman, who must be seen to be distanced from the Government as well as local government, but perhaps he might ask the ombudsman in for a cup of tea and a chat and point out to him that there is an evident injustice in this case which he needs to put right. He should not be allowed to make such a serious error without redress. I am certain that, if the shoe were on the other foot and the ombudsman were investigating a similar error by a local council, he would have plenty to say, and rightly so.

The ombudsman is a public servant responsible for upholding the rights of individuals to complain against the actions of local government by investigating those complaints and making a judgment. However, the ombudsman needs to be told that he does not truly enhance justice and fair play or the rights of the individual making the complaint if he infringes, indeed ignores, the rights of those being investigated and delivers an injustice to them.

If we are to retain confidence in the ombudsman as an individual and in the office that he occupies, he must not be seen to be beyond criticism. Like the councils that he investigates, he makes judgments and if he gets them wrong, he has a duty to put them right.

10.37 pm
The Parliamentary Under-Secretary of State for Wales (Mr. Jon Owen Jones)

I thank my hon. Friend the Member for Islwyn (Mr. Touhig) for raising the important issue of the local government ombudsman.

Before answering the specific points that my hon. Friend has made, I should like to put on record my appreciation of the sterling work that the local government ombudsman and his staff have done and are doing in policing local government in Wales. He has responsibility for investigating allegations of maladministration involving injustice, and last year received more than 1,048 new complaints.

My hon. Friend's concern arises from the ombudsman's investigation into Caerphilly county borough council. In August, the ombudsman issued a report naming four Caerphilly councillors for their non-disclosure of private and personal non-pecuniary interests when they spoke against a planning application for the extension of a dwelling at meetings of the authority's planning committee. The four councillors supported the views of the only objector against the application with whom they were closely connected in a personal and, in one case, a business capacity. Three of those councillors were also fellow members of the same local ward Labour party as that objector. Their objections were instrumental in the council refusing planning permission for the extension in spite of the fact that officers of the council had recommended its approval.

Although the four councillors were fully aware of the identity of the objector, not one of them declared their interest in any of the planning committee meetings.

That was a clear breach of the national code of local government conduct, which is clear about when interests should be declared. It says: You should not allow the impression to be created that you are, or may be, using your position to promote a private or personal interest rather than forwarding the general public interest. Private and personal interests include those of your family and friends as well as those arising through membership of, or association with, clubs, societies and other organisations such as the Freemasons, trade unions and voluntary bodies". The code goes on to say:

If you have a private or personal non-pecuniary interest in a matter arising from a local authority meeting, you should always disclose it, unless it is insignificant, or one which you share with other members of the public generally as a ratepayer, a community charge payer or an inhabitant of the area". In this context, the councillors' association with the objector and their membership of a local ward political party were relevant issues. In those circumstances, where there has been a breach of the code, the ombudsman has a statutory duty to identify the councillors in his report.

Unfortunately, as my hon. Friend said, there was a typographical error in the ombudsman's final report, and a reference to a "previous meeting" mistakenly became a reference to a "private meeting". The error occurred during the copy typing of the monitoring officer's evidence, which was referred to in the ombudsman's final report. The typographical error, referring to a paragraph of the report which was highlighted by the press, implied that the three ward councillors had had a private meeting before the planning committee to determine the application. There was no evidence of such a meeting. I can well understand that local councillors would be aggrieved at being criticised for something that did not occur. I personally would like to record my regret that that happened.

The typographical error, however, had no bearing on the ombudsman's conclusion or his naming of the councillors. The ombudsman's decision to name the councillors would have been the same even if there had been no typographical error. The naming arose from his statutory duty and the fact that the councillors had not declared their interests during successive meetings of Caerphilly council's planning committee.

It is most unfortunate that the typographical error was not spotted before the ombudsman's report was published in its final form. However, it is important that the error does not divert attention from the ombudsman's findings in this case, which I regard as extremely serious.

Mr. Touhig

I must point out that in a letter of 28 July from Caerphilly county borough council, the ombudsman was asked the specific question: could you please explain the reference to a 'private meeting'?". The fact that there was a query over the report was flagged up with the ombudsman, but he did not bother to respond in any way.

Mr. Jones

My hon. Friend anticipates the point that I am about to make.

The findings call into question the effectiveness of the existing national code of local government conduct, which requires councillors to act properly when reaching decisions, such as determining planning applications. I expect all Welsh councils to ensure that their elected members are fully aware of the requirements of the existing national code.

My hon. Friend's specific concerns are twofold. The first is that the typographical error was pointed out to the ombudsman before the report was published, but the ombudsman declined to change it. The second is that, although the ombudsman has now accepted the mistake, he refuses to apologise.

On the first point, I am satisfied that the ombudsman acted reasonably and did all that he could to ensure that there were no errors in his final report. The ombudsman circulated the draft report, for comment and for the purpose of checking its accuracy, to all those who gave evidence in this case, including the four councillors, the council's chief executive, the monitoring officer and other senior officers. He warned the council and councillors of his duty to name the councillors, given the apparent breaches of the code. The fact that there was a typographical error was not pointed out to the ombudsman. The council's members services manager did, however, raise a query as to what was meant by "private meeting".

It is understandable that the ombudsman ignored the members services manager's question. The ombudsman was at that stage unaware of the typographical error and believed, wrongly, that, as the words "private meeting" had been taken from the monitoring officer's evidence, it was a matter for the council itself to explain. The members services manager's question was not framed in a way that suggested that there had been an error or that it was an amendment to the text of the ombudsman's draft report. The monitoring officer had already written his response to the report and made no reference to any typographical error. Not one of the three ward councillors commented on the draft.

Mr. Touhig

I am grateful to my hon. Friend for giving way again. I stress that the ombudsman wrote back on 31 July in response to the letter from the members services manager, and did not respond to any of the points raised there. If he thought at that time that the phrase "private meeting" was a matter for the council's monitoring officer, he should have written back and said, "I do not know what this is about. It is a matter for you, as the monitoring officer, to discover." The ombudsman did that, but only after the matter had been raised with him again some weeks later. He did not respond to the query at all.

Mr. Jones

I understand why my hon. Friend raises that point. It is also understandable, however, that the ombudsman did not believe at that stage that the original draft of the report was in any way incorrect. The council was responsible for the comments that had been made.

For the sake of completeness, I should make it clear that, once the error was discovered after the report's publication, the option of amending and reissuing the report was not available to the ombudsman. As the ombudsman is by law "functus officio"—I must be careful how I pronounce that—once he has issued his final decision, he cannot amend it in any way, unless he is ordered to do so by the courts following, for example, judicial review. The courts are likely to order him to do so only where there is a significant error or omission.

The second issue raised by my hon. Friend was that the ombudsman has accepted the mistake, but has refused to apologise for it. I am satisfied that, after the discovery of the typographical error, the ombudsman acted properly and did everything possible to explain the position and to inform those affected by the report of the error.

It is also my understanding that the ombudsman apologised for the error. He met the leader, chief executive and monitoring officer of Caerphilly council to explain the reason for the error and to apologise. He followed up the meeting with a letter, again apologising for the error. He also asked that his letter be reported to full council, which it was, and placed with the report for public inspection. Furthermore, he sent a letter to all recipients of the final report, including my hon. Friend, pointing out the error and apologising for it.

On a point of procedure, I remind my hon. Friend that the ombudsman is not accountable for his decisions to the Secretary of State for Wales or to Parliament. He is entirely independent, above political influence, being appointed directly by Her Majesty the Queen. It is important that such independence is maintained and not put in doubt. The proper and ultimate course of action open to anyone wishing to challenge an ombudsman's final decision is to seek a judicial review of that decision by the High Court.

The failure of councillors to follow the existing code of local government conduct suggests the need for a new code that is easier to understand and to which councilors are fully signed up. The Government intend to introduce such a code—the national code of conduct for local government in Wales—as part of an ethical framework. The Government will also introduce a much tougher enforcement regime, including an independent standards commission, to take effect in the event that codes are breached.

I hope that all councils will note the ombudsman's report in this case and will take steps to ensure that their councillors are fully aware of the requirements that the existing code places upon them. The public expect, and should receive, the highest standards of conduct from their elected members. Those elected members often do a difficult job. We owe it to them to ensure that the codes of conduct are easily understood. Clearly, a mistake was made by the councillors in this case. For that mistake, they paid a heavy price—a price that was made heavier by the typographical error that occurred.

I well understand why councillors were aggrieved, and why the local Member of Parliament would see it as his duty to try to do what he could to ensure that the public understood that the error, which was highlighted in the press, was typographical. There was no private meeting, and councillors were not responsible for that error.

Question put and agreed to.

Adjourned accordingly at ten minutes to Eleven o'clock.