TRA responses to consultations

Consultation on Local Authorities (Model Code of Conduct) Order

These comments are submitted on behalf of Trevor Roberts Associates. We are a consultancy which specialises in providing training to councillors involved in planning. We have been engaged in this activity now for about 15 years, and are the “market leaders” – we have conducted training sessions for councillors in about 150 English authorities, as well as many authorities in Scotland and Wales. We conduct briefings on planning policies and procedures, including especially the probity dimension.

In this capacity, we wish to comment specifically on the Government’s proposals for a modified Code of Conduct. We have focused our comments especially on declarations of personal and prejudicial interests, where we feel that elements in the proposals could cause a lot of confusion and indeed serious problems for Planning Committees making decisions on planning applications etc. We have deliberately provided some illustrations in our responses to indicate how things could go wrong.

We have deliberately not offered comments on other parts of the Code, where we have no specialised experience or remit. Generally we see the proposed revisions as beneficial, but there are a significant number of terms used which need specifying more precisely.

Bullying

We support the introduction of something specifically on bullying. We have encountered in our review work various examples of pressure being exerted by councillors on officers which amounts to bullying. Ditto the provision to protect against intimidation of complainant, potential witnesses etc.

Question 4 – registration/declaration of gifts and hospitality

A £25 gift/hospitality level seems low – this will need to go into the register of interests and be specifically referred to at meetings where necessary for five years, which appears disproportionate and potentially disruptive. It does not tie in with the attempts elsewhere to reduce the number of declarations. Maybe a higher limit and exemption for “civic” hospitality would be enough.

Question 5 – definition of relationships

The “close personal association” provision is good in principle, but really needs a precise and clear definition. We would prefer this definition to be in the Code itself, and for the definition of relative to remain in the Code. While it is understandable that the Government is hoping to avoid the Code itself becoming too detailed and inflexible, so much relies on the application of key details of this nature, and this is an instance where non-statutory guidance outside the Code could lead to trouble.

Definition of personal interests

There is no mention of County Councillors – there should be a reference to the County Council Electoral Division.

The focusing down of personal interests makes sense – in the main it will become an interest which is greater than the majority of people in a ward. So the councillor who has small children would continue to have a personal interest in an application for a nursery in his/her immediate locality, but vaguer or wider interests would not be covered. There is however considerable confusion in the various definitions and references here.

Declaration of interests/proposed public service interests

These proposed provisions are potentially highly confusing, and their application in development control and similar decision making could cause many problems. We have a number of observations on the proposals.

  1. Personal interests now extend to those who employ or who have “appointed” a member – “appointed” is a very imprecise term.
  2. If a councillor has a non-prejudicial personal interest, it currently has to be declared but does not prevent them from speaking/voting. This arrangement would continue, but not for the new “public service interests”, which would only need to be declared if a member speaks. So a member can vote on an issue where he/she has a public service interest but where he/she has not spoken. Since all of these interests would be in the register of interests, this is hardly world shaking – in effect a councillor reminds people of where he/she is coming from only if he/she chooses to speak. In our wide experience of observing Planning Committees, the standard declaration of interests (mainly Parish Council membership) at the start of meetings is not a major problem – it is usually a relatively brief formality. If this is replaced now by a reference when a member speaks, it is going to be important (a) that they remember to do it and (b) they do it right ie say “before speaking I need to declare a public service interest in that I am a member of xxx Parish Council”, not “as a member of…” or “on behalf of…”. It also means that members may be voting on matters where they have an undeclared (because they have not spoken) personal interest. All this seems to introduce rather pointless and confusing, potentially controversial, distinctions. The current arrangements for a standard declaration of all personal interests at the start of the meeting would solve this and seems preferable.
  3. The public service interest (which is a form of personal interest) is to be regarded as prejudicial where the matter relates to determination of a planning permission (and some other circumstances). The wording of the code is significant here, and the proposed formulation uses vague phrases such as “relates to”, “financial affairs” etc. We would assume that an interest of this sort would only become prejudicial if the application concerned the other body directly and fundamentally eg the Parish Council or Police Authority itself had applied for permission, not merely commented on an application – but this is by no means clear.
  4. Currently a Planning Committee member who is also a member of a Parish Council or other public body which has commented on an application is normally able to speak and vote on planning applications provided he/she declares a personal interest. So under the proposed Code the “say and stay” option appears to be retained, with only the necessity to declare the interest if the member chooses to speak. He/she would however be able to vote without making a declaration if he/she does not speak. This is likely to be especially confusing. A standard declaration at the start of the meeting is preferable.
  5. The definition of “pubic service interest” in the draft code refers to public authorities and to bodies where the member has been appointed or nominated by his/her authority. It also refers to “relevant” bodies. This is very unclear. Charities, voluntary bodies and lobbying organisations should be excluded. On page 16 there is a reference to “….those who have public sector interests ie who are members of another authority or a charity or lobbying body, and for those who are attending meetings to make representations”. Many charities and lobbying bodies do not have “public interests”. When promulgating the equivalent version of the current Code, the Government very deliberately and explicitly rejected their inclusion in the exemptions for members of public bodies and this exclusion should continue. If it does not there will be a scramble from all sorts of outfits to recruit councillors who will be able to speak on applications by merely declaring a personal interest; to vote on applications without saying anything if they choose not to speak; and to address a committee making “representations”. This is potentially disastrous for Planning Committees.
  6. The provisions would allow members with prejudicial interests to address the committee eg advocating that a planning permission be refused. There is no specification of the nature of this address, so a member could presumably address the committee on behalf of his/her constituents, or on behalf of his/her own planning application, or against a planning application next door which affects the value of his/her property. All this needs to be clarified.
  7. The right to address the committee could involve councillors not on a planning committee, or those on a planning committee who “change hats” (we would suggest for the whole meeting, not just for the one item, although this is again something which is unclear). Currently many councils allow a ward councillor to address the Planning Committee. Under the draft code, this address would be followed by withdrawal, something that is not currently normally required. If such a provision is introduced, we would support such a withdrawal, whether the councillor is or is not a member of the committee – once the councillor has had his/her say they should not hang around to see what others say or do ie they should leave before debate, not just before a vote. It needs to be remembered that this provision would not apply to members of the public, who will be able to stay after they have had any public address. It would not be new that councillors are subject to a greater restriction than a member of the public – but it would be a more extensive and more obvious restriction than currently applies.
  8. There should not be any discretion in determining whether a member with a prejudicial interest should be allowed to address a meeting – there should be clear rules which allow or do not allow it.