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Officers and members should continue to be subject to surcharge, the Audit Commission has told the Nolan committee....
Officers and members should continue to be subject to surcharge, the Audit Commission has told the Nolan committee.

This conflicts with the views of the local authority associations and key professional bodies. The associations are planning to tell the committee it is unfair for those in local government to be singled out for such harsh treatment.

Surcharge forces councillors and officers ruled to have been guilty of wilful misconduct or to have acted unlawfully to pay for any public money they have wasted. It has been at the forefront of the debate over standards in local government because of the Westminster City Council homes-for-votes scandal. The inquiries have already taken more than three years, and most of those accused of misconduct face bankruptcy.

The Audit Commission's submission to Lord Nolan's inquiry into standards of conduct in local government says this idea of restitution 'is a good one and should be retained, since it encourages people to take and heed professional advice before making key decisions . . . The threat of surcharge can help officers, as well as auditors, to persuade authorities not to act improperly'.

It points out that there are important differences in the procedure for imposing surcharge, depending on whether a person is accused of wilful misconduct or unlawful expenditure. The commission's report recognises that in cases where the auditor determines the surcharge, he or she is acting as 'investigator, prosecutor, judge and jury', which is 'commonly perceived as unfair by people involved in a surcharge case'.

The anomalies and perceived unfairness should be dealt with by limiting the role of the auditor to making the case for surcharge and estimating the amount of money involved. The courts should judge the case and determine the amount of surcharge to be levied and whether or not the person concerned should be disqualified from office, the commission believes.

It wants all councils to adopt a code of conduct for staff, and encourages the idea of including the code in officers' contracts.

The local authority associations' submission is being finalised this week. It is likely to point out that the sanction of surcharge is significantly tougher than anything faced by those elsewhere in the public sector, including the government. It will probably call for the whole system to be reviewed, and at least for the rules to be changed so the auditor is no longer judge and jury.

The submission is expected to point out the need for rules affecting local government to be consolidated into one piece of legislation rather than dispersed throughout numerous Acts. This will reduce the chances of officers or members inadvertently breaking the law, the associations believe.

The submission from the Association of Council Secretaries and Solicitors backs the associations on surcharge, arguing that 'application of surcharge to local authority members and officers alone is unjustifiable and the procedures involved are unnecessarilybureaucratic and time consuming'.

CIPFA also wants surcharge reviewed.

The Nolan committee is expected to hold hearings in Scotland and Wales by the end of December, before starting its main hearings in London by February. Its report should be out by early summer.

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