Videos explaining how the Adjudication Panel for Wales works
Introduction to the work of the APW
Welcome to the website of the Adjudication Panel for Wales. We hope that you will find this series of videos helpful in explaining the work that we do, if you attend any of our hearings what to expect, and the environment in which we work. You will also find written information on our website and you can contact the registrar if you would like information posted or emailed to you.
The adjudication panel for Wales deals with issues as to whether councillors from County Borough or community councils, or members of fire authorities or national park authorities, have breached the Code of Conduct through their actions. If we find that they have so breached the Code of Conduct, the APW then decides what action if any to take. We have an obligation to ensure that those holding office comply with the Code of Conduct, but we must also protect local democracy and freedom of expression. These obligations at times can conflict with each other which is why the APW membership comprises of both legal and lay members who consider and apply the law in order to ensure a fair hearing outcome is reached.
We deal with two types of hearings – case tribunals (these hear direct references from the Ombudsman alleging that a councillor has breached the Code of Conduct) and appeal tribunals (these hear appeals from the decisions of standards committees about breaches of the Code of Conduct they have found and/or the sanctions they have imposed).
Process for a reference from the Public Services Ombudsman for Wales
A reference from the PSOW is sent directly to the President of the Adjudication Panel for Wales. This is done by way of a report prepared by the PSOW following a detailed investigation. Once the reference has been made to the APW, it is required to determine whether or not there has been a breach of the Code of Conduct, and if so what action if any needs to be taken. We appreciate that from time to time a councillor may feel that the ombudsman should not have made the reference; however, any complaints of this nature are best dealt with by way of judicial review to the High Court as the APW is required to deal with the reference if the provisions of the Local Government Act 2000 has been followed.
The first step upon receipt of the reference is for the councillor or member (called the “councillor” for the purposes of this document) to be sent a copy of the PSOW’s report by the Registrar of the APW and given an opportunity to respond. Upon receipt of that response, or failure to make a response by the deadline, the president will appoint a three-person panel to deal with the reference. That panel is chaired by a legal member and is responsible for managing the case to ensure that a timely and fair hearing takes place as close as possible to the relevant authority involved.
The panel will issue a series of directions, called a listing direction, with which both the councillor and the PSOW are required to comply. Both the councillor and the ombudsman are able to submit evidence to be considered by the panel and suggest witnesses from whom the panel may wish to hear at the hearing. However, the final decision as to which witnesses will be called if any is a matter for the panel, and if necessary witness summons can be issued to require the attendance of any person who can give relevant evidence at the hearing. The panel in these cases are called case tribunals.
Process for an appeal
The process of dealing with an appeal is slightly different to that when a formal reference has been made by the PSOW. The APW is able to review afresh whether or not the councillor has breached the Code of Conduct and whether the sanction imposed by the standards committee is appropriate. We cannot require the standards committee to change its sanction – we can only make recommendations. It is unusual for a sanctions committee to not follow the recommendations of the APW.
The first step is that the councillor has to apply for permission to appeal from the President of the APW. The President will consider the matter personally unless she is absent (it will then be delegated to another legal member of the APW to decide). Permission to appeal will be granted unless the President considers that the ground of appeal has no reasonable prospect of success. This is a test with a fairly high threshold, and appeals that have little prospect of success will be permitted to go to a full hearing. The councillor is required to complete a form to get permission to appeal and should also send a copy of the decision of the standards committee and any evidence which they say supports their application.
If permission to appeal is granted, the Registrar of the APW will send a copy of the application and the decision to grant permission to the PSOW for his comments. Upon receipt of the PSOW’s response, the President will appoint a three-person panel to consider the appeal. That panel is chaired by a legal member and is responsible for managing the case to ensure that a timely and fair hearing takes place as close as possible to the relevant authority involved. The panel will issue a series of directions, called a listing direction, with which both the councillor and the PSOW are required to comply. Both the councillor and the PSOW are able to submit evidence to be considered by the panel and suggest witnesses from whom the panel may wish to hear at the hearing. However, the final decision as to which witnesses will be called if any is a matter for the panel, and if necessary witness summons may be issued to require the attendance of any person who can give relevant evidence at the hearing. The panel at these hearings are called appeal tribunals.
It is worth pointing out that the sanctions that can be imposed by a standards committee is lower than those that can be imposed by the APW when dealing with a reference by the PSOW at a case tribunal. Sanctions committees can only suspend a councillor for up to 6 months or up to the remainder of their term of office is shorter, which limits any recommendation by an appeal tribunal in the same way.
How hearings work
Hearings take place in public unless it is in the interests of justice for all part to be in private. As justice is generally required to be carried out in public, the tribunal will seek to limit any private sessions to the bare minimum required in order to ensure that the public can see our decision-making process as much as possible.
It is possible for hearings to take place on the face of the papers themselves; this is another way is simply saying that the panel will read the evidence and any submissions from the parties in order to make a decision - there is not an oral public hearing. Hearings take place on the face the papers only when the councillor requests it and the tribunal feels that it has sufficient evidence to decide the matter without hearing oral evidence, or due to a lack of response, the tribunal considers that it would not be good use of resources for it to hold an oral hearing.
It is possible for a prehearing review to be arranged by the panel where the parties are given an opportunity to appear before it and discuss matters relevant to preparing the case for a final hearing or dealing with any preliminary issues that require a decision from the panel. Such hearings will only be arranged at the discretion of the panel itself and only where it believes that such a review will assist it with the issues which it is required to determine.
Generally, hearings are held in courts or tribunal rooms run by HMCTS (Her Majesty’s Courts and Tribunal Service). There are several reasons for this. Such rooms are designed specifically to hold hearings and have all the necessary facilities, including public access, to enable hearings to be run smoothly. Security is readily available at such venues. The use of such rooms saves the Welsh taxpayer a considerable sum and is a good use of limited resources. As much is possible, we try to hold the hearing as close as possible to the relevant authority involved, though this is not always possible. This means that the distance and costs for those involved in attending the hearing is reduced to as little as possible. We also can hold virtual hearings where the hearing takes place through a cloud video platform which is accessible to the public.
Our hearings take place in three stages. The first stage is that the panel finds any disputed relevant facts that are required. The second stage is that the panel decides in light of both the agreed facts and the facts that it has found whether or not the code of conduct has been breached. The final stage is that if the panel has found that there has been a breach, what action if any will be taken. The panel’s powers range from taking no action at all, suspending the councillor from their role for up to one year or the balance of their term of office is shorter, or disqualifying the accused member from holding an office in any relevant authority for up to 5 years. The more serious the breach, generally the more serious the sanction imposed, though the panel also considers any mitigating or aggravating factors. The panel also has sanctions guidance which is available on our website or direct from the registrar which it uses as a guide when deciding what sanction, if any, to impose.
Layout of a hearing room
Generally, we use standard court and tribunal rooms.
The first person you are likely to meet from the APW is the Registrar or one of the administration staff who will serve as the clerk to the panel. Their role is to ensure that all the parties and witnesses are in the right place and to support the panel in its work. The panel will sit at the front of the room facing towards the parties and any members of the public present. The legal member sits in the middle of the three members and is referred to as the chair. The lay members sit on either side of the legal member. All members have equal votes and contribute to the decision.
If you face in front of the panel, the councillor sits on the left-hand table. If the councillor has a representative, the representative will sit next to them. The PSOW’s officer will sit on the right-hand table as you face the panel, and again if he is represented, his representative will sit next to his officer.
The members of the public then sit behind the parties and their representatives. The press are not given a special press table or gallery; however, if spaces are limited or oversubscribed, accredited journalists are given priority to ensure that they are able to report our proceedings to the wider public. While the use of mobile phones in our hearings is not permitted, accredited journalists are permitted to use mobile phones to live tweet the proceedings, again to ensure that the wider public can be as well-informed as possible about the hearing.
Example cross examination
Witnesses who give oral evidence to the tribunal do so under oath or affirmation, and can be subjected to cross-examination. This is not an opportunity to have an argument with the witness, but rather an opportunity to put parts of the case to that witness for their comment or to challenge parts of the witness’ evidence with which the party disagrees. It is an important part of the process as if the party does not challenge the witness at cross-examination about any part of their evidence with which you disagree, the panel can take the view that the party has accepted that evidence.
For those who are representing themselves or are not represented by a qualified advocate, asking questions of the witness may appear to be a challenging task. The key point is to bear in mind what it is that they hope to achieve by asking the question, and ask the question as simply as possible so that the witness cannot misunderstand. It is best to only ask one question at a time. The legal chair can help ask questions if an unrepresented councillor gets a little bit stuck or confused about the best way to do it, but they are not able to give advice.
At the end of each stage of the hearing, the parties are invited to make submissions to the panel as to why their position is to be preferred. So, for example at the end of the second stage where the panel has to decide whether or not the Code of Conduct has been breached, the councillor might want to argue that the Code of Conduct has not been breached, while the PSOW is likely to argue that it has. Submissions are a way of setting out each party’s case and its position to the panel. They might want to refer to the law, but more often than not it is more useful simply to explain their position, point out to the panel the evidence that it is seen or heard that supports their position, and say why evidence which might be seen as not supporting their position should either be ignored or have less weight put upon it by the panel.