Adhering to the code

Northern Ireland Local Government Commissioner for Standards, Marie Anderson, talks to David Whelan about the difficult task of balancing both investigation and adjudication responsibilities within the office, a year on year increase of complaints and her focus ahead of the 2019 Local Government elections.

In April 2016, Marie Anderson took up post as Northern Ireland’s first Public Services Ombudsman following the introduction of the Public Services Ombudsman Act (Northern Ireland) 2016. The Act made provision for abolishing the offices of the Northern Ireland Commissioner for Complaints and the Assembly Ombudsman for Northern Ireland and creation of the Northern Ireland Public Services Ombudsman, including the role of the Northern Ireland Judicial Appointments Ombudsman.

Unlike other regions of the UK, Northern Ireland’s complex model created an Office of the Northern Ireland Local Government Commissioner for Standards, with authority to both investigate and adjudicate on allegations that councillors have breached the Northern Ireland Local Government Code of Conduct for Councillors.

Described by Anderson as a “single centre of excellence for investigations and adjudication,” the Commissioner believes that the regime established in 2014 provides the “right framework” to help achieve the aim of ensuring councillors meet the standards of conduct that the public expect.

“These ethical standards arrangements are unique to Northern Ireland and not only help to achieve good governance and encourage good practice, they also result in significant savings to the public purse. I hope and expect that this will continue to be the case,” she says.

Explaining the complexity of holding authority for both investigation and adjudication, Anderson highlights operations in Wales, whereby the Ombudsman investigates and makes recommendations, depending on the nature of the breach of the code, to either a standards committee, which can deal with minor breaches, or an adjudicating panel, which deals with more serious cases.

In Northern Ireland, however, appropriate separation between investigations and adjudications is achieved through Anderson delegating authority to conduct the investigation of those complaints to the Deputy Commissioner and his staff in the Local Government Ethical Standards (LGES) directorate.

“My role as Commissioner is to adjudicate on cases which have been investigated and forwarded to me by the Deputy Commissioner. When a matter is referred to me I may decide whether or not to hold an adjudication hearing, which are held in public unless there are good reasons to hear the matter in private,” she explains.

The Commissioner’s powers are extensive and include the ability to censure, to suspend for up to one year and to disqualify for a maximum of five years. In the five years since the office was established, coinciding with reform of local government in Northern Ireland, the office has received just under 200 complaints, 14 of which have referred for adjudication.

As Anderson highlights, the number of complaints has risen year on year to the point where there were 64 complaints under assessment/investigation in 2017/18 compared to just 14 in 2014/15. This she believes, can be largely attributed to “increased visibility” of the office.

“I think that has come largely through the adjudications, which are held in public and get significant media interest. These have increased visibility and awareness,” she says.

The Commissioner also points to a recognisable shift in the profile of those making complaints to her office, highlighting an increase in the volume of complaints from the public. Compared to a 50 per cent split between the public and councillors in the early years of the office, last year saw 60 per cent of complaints emanate from the public, 24 per cent from councillors and around 16 per cent form others such as MLAs, Chief Executives and officials.

Highlighting that adjudication is a judicial process, Anderson says: “There is a lot of rigour in the adjudication. As well as the adjudication itself there are procedural matters such as adjournments and applications to be heard in private. Then there also has to be the written decision.”

The Commissioner outlines that the increased number of complaints has led to an additional investigator being added to an existing small team within the office, to ensure that investigations are dealt with efficiently.

Greater efficiency is something that Anderson and her office are striving towards. As a result of feedback on the office’s processes in completing investigations, Anderson recently reduced the 48 week target of completing a complaint down to 40 weeks. She estimates that currently over 75 per cent of cases are meeting the new target and adds that in aiming to reach even greater levels of efficiency, the matter will be kept under review. 

However, she is keen to stress that the office’s focus is as much about preventative action, as it is on reacting to complaints: “Of equal importance to our investigation and adjudication work is the need to educate councillors about the rules and obligations under the code,” she explains. “I believe more work is still to be done on promoting good behaviour and in publishing guidance.”

Recognising that the standards framework presents challenges for councillors, councils and chief executives and the importance of stakeholders’ development in their understanding of the code, communication and training initiatives introduced by Anderson include updated guidance on the code, social media guidance and co-ordinated training programmes in association with NILGA. Anderson also emphasises the importance of case summaries in providing useful information, raising awareness of the learning points within decision notices.

The Commissioner reveals that she has recently applied to the Department for Communities for additional resources specifically related to “good practice and to ensuring guidance is updated in a timely fashion”.

Greater powers

In addition to investigating complaints made to her office in writing, Anderson also possesses quasi-own initiative powers, meaning the office can commence an investigation if, during, the investigation of a complaint, a further potential breach is identified. However, a number of recent cases have brought to focus the absence of ‘own initiative’ power, which would allow the office to conduct investigation without self-referral or complaint.

The Commissioner says that while she would “welcome” those powers, the fact that all powers are subject to judicial review means that she would expect them to be “sparingly” and only after “careful consideration”, only when the conduct is “egregious and of a serious nature”, or where there is good reason why someone may not want to come forward with a complaint.

Of equal importance to our investigation and adjudication work is the need to educate councillors about the rules and obligations under the code.

Of the 14 cases referred for adjudication in the last five years, three have been the subject of high court appeals.

The Commissioner believes that any extension of powers would require further resources: “Own Initiative investigations require dedicated resources. From an Ombudsman perspective we’re already experiencing an 82 per cent increase in the number of complaints since 2015/16, as well as a significant increase in inquires and with only three senior investigators I believe I would need a dedicated resource.”

Of course, as Anderson highlights, even if public opinion were in favour of the power extension, such a move is impossible while there is an absence of an Assembly to legislate for the move.

Election 2019

Turning to the impact of an election year on the Office’s workload of dealing with complaints, Anderson admits that the increase has not been as significant as may have been expected.

“While there has been an increase, there was a concern initially that the code may be used by councillors for political motives. If that had been the case, I would have expected a greater hike in complaints this election year. However, as stated previously, the increase can be traced to complaints by members of the public.”

Another initial concern that has been debunked is that complaints made to the office would centre around those additional powers devolved to local authorities under the reform of local government, such as planning.  Anderson highlights that, in relation to the code, this has not been the case: “The majority of complaints have revolved around the two main issues of obligations as a councillor (to act lawfully and not bring the council or position into disrepute) and on behaviour towards others (showing respect and consideration for others).”

The Commissioner recognises the level of involvement social media has, and can potentially have, on complaints in these areas.

“I think people use social media and feel it is a private space. It is not. If it is clear that a councillor is acting in their role or can be identified as a holder of the role, then there is the potential for a complaint and an investigation under the code.

“The key message for councillors around the use of social media is that although it may seem like an informal means of communication, all of your communications can be the subject of an investigation under the code.”

Looking to the year ahead, Anderson outlines that there remains a challenge in balancing the investigative and adjudicative roles of the office and in balancing work on the local government front with her role as Public Services Ombudsman.

A focus, she states, will be on the role of educating new and existing councillors, particularly in the areas of conflicts of interest, which Anderson intends to allocate resources towards.