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Environment and Infrastructure Policy Review Committee PP 2016/0065 ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE SECOND REPORT FOR THE SESSION 2015-2016 Statutory Procedure for Complaints Against Local Authorities ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE SECOND REPORT FOR THE SESSION 2015-2016 Statutory Procedure for Complaints Against Local Authorities There shall be three Policy Review Committees which shall be Standing Committees of the Court. They shall scrutinise the implemented policies, as deemed necessary by each Committee, of the Departments and Offices indicated in this paragraph together with the associated Statutory Boards and other bodies: • Environment and Infrastructure Committee: Department of Environment, Food and Agriculture; and Department of Infrastructure; Each Policy Review Committee shall in addition be entitled to take evidence from witnesses, whether representing a Department, Office, Statutory Board or other organisation within its remit or not, in cases where the subject matter cuts across different areas of responsibility of different Departments, Offices, Statutory Boards or other organisations. The Policy Review Committees may also hold joint sittings for deliberative purposes or to take evidence. The Chairmen of the Policy Review Committees shall agree on the scope of a Policy Review Committee’s inquiry where the subject cuts across the respective boundaries of the Policy Review Committees’ remits. Each Policy Review Committee shall have – (a) a Chairman elected by Tynwald, (b) two other Members. Members of Tynwald shall not be eligible for membership of the Committee, if, for the time being, they hold any of the following offices: President of Tynwald, member of the Council of Ministers, member of the Treasury Department referred to in section 1(2)(b) of the Government Departments Act 1987. The Policy Review Committees shall be authorised in terms of sections 3 and 4 of the Tynwald Proceedings Act 1876 as amended and of Standing Orders to take evidence and to summon the attendance of witnesses and further to require the attendance of Ministers for the purpose of assisting the Committee (or Committees, if sitting jointly). The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984. Committee Membership Mr T P Wild MLC (Chairman) Mr G D Cregeen MHK (Malew and Santon) Mr D J Quirk MHK (Onchan) Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas IM1 3PW (Tel 01624 685520, Fax 01624 685522) or may be consulted at www.tynwald.org.im All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas IM1 3PW. Table of Contents I. BACKGROUND: COMMITTEE MEMBERSHIP AND THE INVESTIGATION............ 1 II. SCOPE OF THE INVESTIGATION ...................................................................... 3 III. INVESTIGATION OF THE LACUNA ................................................................... 3 IV. THE TYNWALD COMMISSIONER FOR ADMINISTRATION................................. 5 V. RECOMMENDATIONS OF THE SELECT COMMITTEE ON LOCAL AUTHORITIES: MEMBERS’ INTERESTS..........................................................................................11 VI. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS...............13 WRITTEN EVIDENCE .............................................................................................15 APPENDIX 1 1ST DECEMBER 2014 - LETTER OF REFERRAL FROM MR D QUIRK MHK INCLUDING COPY OF LETTER FROM MR JR HAMILTON 17 APPENDIX 2 10TH DECEMBER 2014 – EMAIL FROM MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 23 APPENDIX 3 8TH JANUARY 2015 - LETTER FROM MR D QUIRK MHK INCLUDING COPY OF LETTER FROM MR JR HAMILTON INCLUDING LEGAL OPINION FROM MR S GOLDBERG 27 APPENDIX 4 18TH FEBRUARY 2015 - LETTER FROM MR NJ BLACK, CHIEF EXECUTIVE DEPARTMENT OF INFRASTRUCTURE 37 APPENDIX 5 25TH FEBRUARY 2015 - LETTER FROM MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 43 APPENDIX 6 17TH JUNE 2015 - LETTER FROM MR JLM QUINN, ACTING ATTORNEY GENERAL 47 APPENDIX 7 22ND DECEMBER 2015 - LETTER FROM MR D QUIRK MHK, ENCLOSING A COPY LETTER FROM MR JR HAMILTON TO MR W GREENHOW, CHIEF SECRETARY ISLE OF MAN GOVERNMENT 53 APPENDIX 8 AUGUST 2009 – COUNCIL OF MINISTERS CONSULTATION ON THE TYNWALD COMMISSIONER FOR ADMINISTRATION A DRAFT BILL 59 APPENDIX 9 JULY 2010 – SUMMARY OF RESPONSES TO THE CONSULTATION ON THE DRAFT TYNWALD COMMISSIONER FOR ADMINISTRATION BILL 109 To: The Hon Clare M Christian, President of Tynwald, and the Hon Council and Keys in Tynwald assembled ENVIRONMENT AND INFRASTRUCTURE POLICY REVIEW COMMITTEE SECOND REPORT FOR THE SESSION 2015-2016 Statutory Procedure for Complaints Against Local Authorities I. BACKGROUND: COMMITTEE MEMBERSHIP AND THE INVESTIGATION 1. The Committee was established in 2011 with a remit to scrutinise the implemented policies of three Departments including the Department of Infrastructure. The remit of the Committee was written into the Standing Orders of Tynwald Court by resolution in May 2011 with effect from October 2011. Members were first elected to the Committee in November 2011. 2. At the start of this investigation in December 2014 the Members of the Committee were; Mr Dudley Butt MLC (Chairman), Mr Tony Wild MLC and Mr John Shimmin MHK. 3. In February 2015 Mr Shimmin was appointed Minister for Policy and Reform, a position which precluded him from being a member of this committee. Mr Butt’s term of office as a Member of the Legislative Council ceased on 28th February 2015 and he did not stand for re-election. 4. At the March 2015 sitting of Tynwald Court, Mr Graham Cregeen MHK was elected to the Committee to replace Mr Shimmin. 5. At the May 2015 sitting of Tynwald Court, Mr Wild was elected to replace Mr Butt as Chairman of the Committee. A further Committee Member was therefore required and Mr David Quirk MHK was elected. 1 6. This investigation has been undertaken in response to a letter of referral sent to us on 1st December 2014 by Mr David Quirk MHK on behalf of his constituent Mr JR Hamilton.1 This was around six months before Mr Quirk was elected to the Committee. The request was that this Committee investigate the provisions in the Local Government Act 1985 for the Department of Infrastructure to investigate a complaint about a Local Authority, particularly an apparent lacuna with respect to effective remedy in the event a complaint is upheld. Mr Hamilton asked specifically that consideration be given to: An Independent Tribunal/Authority to be established with mandatory powers to investigate, report and make recommendations in relation to complaints against Local Authority Members or its Officers, on matters of wrongdoing, maladministration, misconduct or any other of their actions or comments in the process of undertaking any of their duties or functions but not limited only to failure to act, but also to the manner in which they have acted in any discussions, processes or associated matters.2 7. The apparent lacuna was identified as a result of a preliminary investigation into a complaint about the conduct of a member of a local authority, referred to the Department of Infrastructure by Mr Hamilton, via an advocate, in April 2013. 8. On the 10th December 2014 we received a copy of an email from Mr Will Greenhow, Chief Secretary, supporting Mr Hamilton’s request and asking that this Committee consider accepting the referral.3 9. On the 8th January 2015 Mr Quirk forwarded additional correspondence from Mr Hamilton which included: a copy of the relevant sections of the legal opinion of Counsel on the interpretation of the Act 4which identify the lacuna within the legislation5 10. A copy of this legal opinion provided by Mr Simon Goldberg, of Trinity Chambers, Newcastle upon Tyne can be found in Appendix 3. 11. At a meeting on 28th January 2015 we began an investigation. 1 Appendix 1 - Letter from Mr D Quirk MHK 2 Appendix 1 - Copy letter from Mr JR Hamilton 3 Appendix 2 4 ss 4 - 5 Local Government Act 1985 5 Appendix 3 2 II. SCOPE OF THE INVESTIGATION 12. This investigation included consideration of the apparent lacuna in sections 4 and 5 of the Local Government Act 1985. 13. This investigation did not consider the original complaint of Mr Hamilton against a local authority, apart from reviewing progress with the recommendations of the Select Committee on Local Authorities: Members’ Interests6 which was set up following a Petition for Redress of Grievance on the subject submitted by Mr Hamilton on Tynwald Day 2011. III. INVESTIGATION OF THE LACUNA 14. We asked the Department of Infrastructure and the Isle of Man Government Chief Secretary, Mr Will Greenhow, how they perceived the apparent lacuna and what solutions they would propose. 15. The Department of Infrastructure responded in a letter dated 18th February 2015, stating: The Department, whilst noting the opinion of Mr Goldberg, does not ‘perceive’ there to be any problem with the operation of section 4 of the 1985 Act in so far as the provision clearly provides for the relevant Department to cause an inquiry (notwithstanding the element of discretion to the Department to do so) in respect to the manner in which any functions of a local authority are carried out by the authority. To the extent that a case against an Authority has been proven in respect
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