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The shenanigans of Bristol City Council's Monitoring Officer

https://www.whatdotheyknow.com/request/bristol_city_council_independent?nocache=incoming-2482946#incoming-2482946

TL:DR version

As the situation is a bit complicated, here is a simple version.

So...yeah, we have 'quite' the situation.

Below you will find a list of questions outstanding that we just aren't sure about, and the M.O. is refusing to clarify.

There is also a list of 'provable things' of what we've seen, any one of which call into doubt the integrity of the Monitoring Officer, but altogether show that he is failing in his duty.

We had hoped to get some answers from the M.O. at the Values and Ethics committee on the 3rd of November but the M.O. failed to attend the meeting so members of the public were not able to ask verbal supplementary questions, and the written answers were non-responsive to the questions asked.

Questions Councillors should be asking

Evidence of wrongdoing

This section contains things that we are able to 'know' (reasonably for sure) of what has happened. Individually, none of them are particular damning, but taken together they show that the Monitoring Officer is

The Monitoring Officer appointed 3 independent persons

From public forum 25th September

Q. How is V&E committee involved in appointment of IPs? Is this purely the decision of the MO?

A. The appointment of the Independent Persons is carried out by the Monitoring Officer and the Head of Legal Services.

Q. Other Council's publish the criteria for appointment of the IPs, their names and CVS. Will BCC commit to this?

The Council has appointed 3 Independent Persons from outside the Council to assist the Monitoring Officer in considering complaints. This is statutory requirement under S28 of the Localism Act 2011 to appoint at least 1 independent person.

As the appointment of Independent Persons is unlawful unless ratified by the Full Council, that would appear to make the Monitoring Officers actions unlawful.

The Monitoring Officer misled the Values and Ethics Committee

During the Values & Ethics committee meeting on the 9th of October the M.O. claimed he has already appointed Independent Persons and that they didn't need to be appointed by Full Council.

The process to appoint the independent members was carried out by myself and the head of Legal Services. We advertised those roles, we undertook an interview process and we appointed a pool of independent persons.

There's no requirement in the legislation. In fact, I think it would be complete misreading of the legislation to think that that appointment would need to be made by full council.

Video is here or you can read the minutes of the meeting.

Supplementary Question – Mike Oldreive – ‘Have all requirements of Section 28 of the Localism Act 2011 been met?’

The Chair asked the MO to respond. The MO stated that Independent members were appointed by the MO and Head of Legal Services and there was no requirement in the legislation stating that the appointment was made by Full Council. *

  • Post-meeting clarification dated 20 October 2023 - The recent recruitment process for Independent Persons will require the ratification of those appointments by Full Council and it is anticipated that this will be at the next ordinary meeting of Full Council on 14 November.

The 'clarification' came after a member of the public contact BCC's Chief Executive. It is entirely possible the Monitoring Officer made an honest mistake in understanding the law.

The M.O. misled the chair of the V&E committee multiple times to avoid Public Forum

At the Values and Ethics committee on the 25th of September, the Monitoring Officer misled the chair of the committee (who is an independent member not a councillor, and so unfamiliar with the rules) into thinking that it was acceptable to skip public forum without formally moving a motion to do so.

A member of the public interrupted the meeting and insisted the Constitution of Bristol be followed.

People shouldn't have to shout down the Monitoring Officer into following the rules.

The M.O. failed to attend the Value & Ethics committee on the 3rd of November

The Monitoring Officer failed to attend the last Value and Ethics committee, which was disappointing as we'd hoped to get some clear answers at last.

Not only did he not attend, but the written answers to questions were non-responsive to the questions asked. E.g.

Q. How many Independent Persons have been involved in complaints cases since 2013? Does the Monitoring Officer consider that these appointments of Independent Persons carried out by the Head of Legal Services and the Monitoring Officer were made lawfully?

If YES, under what specific powers? Please provide a clear reference and justification.

A. There is a requirement to appoint an IP and consult with them where a complaint is investigated. There is a discretion to consult with an IP in all other circumstances, including initial analysis of a complaint. The Council consults an independent person to provide advice on the assessment of complaints. There have been no complaints that have required an investigation in the last 5 years.

That did not answer how many people were appointed, or if the M.O. thinks they were appointed lawfully.

Q. Can the Monitoring Officer explain how the members' complaints process and decisions made since 2013 if the appointments of Independent Persons are unlawful?

A. See Answer to Q1

Although we have come to expect politicians to give non-responsive answers, it is intolerable that the Monitoring Officer is doing so.

Q. Section 5 of the Local Government & Housing Act 1989 requires the Council to appoint an Officer to act as the Council's Monitoring Officer. The Act provides that it is the personal duty of the Monitoring Officer to report formally to the Council on any proposal, decision or omission by the Council, which has given rise to, or is likely to, or would, give rise to, the contravention of any enactment, rule of law or statutory code of practice.

The appointment of Independent Persons by the Monitoring Officer and the Head of Legal Services is a breach of section 28 of the Localism Act 2011, Will the Monitoring Officer report formally the unlawful appointment of Independent Persons to all members of the Council, as required by statute?

A. The MO will not be preparing a S5 report. However, there will be a report to Full Council on the 14th November recommending the appointment of 3 Independent persons

The supplementary question that was going to be asked verbally, but had to be submitted in writing due to the no-show of the M.O. is:

Please can you say in very simple terms, why you believe you don’t need to write a Section 5 report?

An answer has not been provided yet.

No complaints have made it past the Monitoring Officer's gatekeeping

The Council consults an independent person to provide advice on the assessment of complaints. There have been no complaints that have required an investigation in the last 5 years.

Monitoring Officer making up his own rules

Examples of Joanna Booth and Danack cases TODO fill out

Making up his own confidential rules

e.g. Is the identity of the IP kept confidential? How does this square with transparency? To ensure the integrity of the complaints procedures, the identify of the Independent Persons is kept confidential.

TODO fill out

Thanks for reading

Everything below here is background information. If you're very interested in this topic you might find it interesting, otherwise all the good stuff is above.

Relevant legislation

There's a couple of bits of UK legislation that are relevant.

Appointment of Independent Persons

The Localism Act 2011 details the requirements for Councils and other authorities to set up a complaints process to handle complaints about members behaviour. It includes a part that say:

a person may not be appointed under the provision required by subsection (7) unless the person’s appointment has been approved by a majority of the members of the authority

Duties of a Monitoring Officer

The Local Government and Housing Act 1989 list the public duties of any person appointed to be a Monitoring Officer.

It includes this part:

it shall be the duty of a relevant authority’s monitoring officer, if it at any time appears to him that any proposal, decision or omission by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority, has given rise to or is likely to or would give rise to— (a)a contravention by the authority, by any committee, or sub-committee of the authority, by any person holding any office or employment under the authority or by any such joint committee of any enactment or rule of law...to prepare a report to the authority with respect to that proposal, decision or omission.

Which basically says that Monitoring Officer has a public duty to say when the Council either has or will act unlawfully, either through taking some action that is not lawful, or failing to take some action that is mandated to be done.

For example, appointing an Independent Person without getting the approval of majority of members for them.

Relevant documents

Here are some relevant documents that might help some people understand the situation.

An example Section 5 report

The only example of a Section 5(2) report that has be found is from 'Bournemouth, Christchurch and Poole Council'.

One part of it gives legal opinion of whether these types of report are 'optional':

Under Section 5(2) of the Local Government Act 1989 the Council’s Monitoring Officer is under a duty to report to Council, if it at any time it appears to her that any proposal, decision or omission on behalf of the Authority has given rise to or is likely to or would give rise to a contravention of any enactment or rule of law.

This provision does not give the Monitoring Officer any discretion and requires the reporting of the smallest, most inconsequential breaches of legislation, including those that cannot be remedied and for which the impact is small."

The last known appointment of Independent Person at BCC

The last time that the appointment of an Independent Person was ratified was at Full Council 10th september 2013.

It's worth noting that the appointment was for a limited time:

It was agreed that the appointee would serve for a 4 year term

It's also worth noting that the ratification happened after the proposed Independent Person was interviewed by members of the Audit Committee:

"Interviews for a position of “Independent Member (Standards)” of the Audit Committee were undertaken on 10 May by representatives of the Audit Committee and Officers and it was decided to appoint Mr Christopher Eskell to the position."

The agenda item "Appointment of Independent Persons" listed for the Full Council meeting on the 14th of November does not include any mention of the proposed Independent Persons being interview by a committee, so that would be a change in Council Policy.

Random notes

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