For more background information:
From Graeme Harrower (member for Bassishaw) 3 July 2019
Subject: Dispensations Sub-Committee fails the test
To All Members of the Court of Common Council
This afternoon I sat in the "public gallery" for a meeting of the Dispensations Sub-Committee of the Standards Committee. This sub-committee considered test dispensation requests made by four resident councillors from three wards.
What was the test?
On 7 June, Mark Bostock, a resident councillor for Cripplegate ward, made a dispensation request to the Standards Committee. The text of his email is set out in the document pack for the sub-committee meeting today, but for convenience it is reproduced below. The terms of the general dispensation he was seeking reflected what City residents had called for in their petition two months ago. His request was therefore a perfect test of the current dispensations policy.
Three other resident councillors subsequently submitted dispensation requests in terms similar to Mark’s, reinforcing this test of the policy.
How was the test failed?
The Dispensations Sub-Committee refused to grant any of the general dispensations sought.
At the beginning of the meeting, the City Solicitor advised the sub-committee that "policy is a relevant matter, but you can depart from it”. The sub-committee, though, showed no inclination to depart from the current dispensations policy.
Most of that policy goes far beyond what the law requires, and can be justified only on the basis that it “maintains public confidence in our decision making”. When the petition was presented two months ago, however, it was clear that the policy had the opposite effect, as Mark pointed out in his email (below). The petition contained a declaration of no confidence in the current standards regime, and indicated what dispensations policy would maintain public confidence. That indication was reflected in the four test dispensation requests.
The sub-committee refused these requests because they did not comply with a policy that had been shown to be fundamentally flawed two months earlier. That is as logical as it would have been for the owner of the Titanic to have taken bookings two months after the ship had sunk.
A member of the public sitting next to me observed at the end of the meeting that the sub-committee had not addressed most of the points made in the requests for general dispensations. Members of the sub-committee referred to these requests as having “no parameters” and being for a “blank cheque”, but that was plainly not so. None of the four councillors sought a dispensation for a matter that affected them uniquely or more than any of their constituents, but this fundamental point was not discussed by the sub-committee at all.
The chair of the sub-committee remarked twice that representing constituents was not a “sufficient” reason for a councillor to be granted a dispensation. That does not seem to accord with the statutory ground for a dispensation being granted “in the interest of persons living in the authority’s area”.
Another member was concerned about granting a general dispensations because that would involve a judgment being made by an individual councillor, and not by the Dispensation Sub-Committee. On this point I refer to the final paragraph of Mark’s email (below).
What should happen next?
The chair of the Standards Committee has refused to take any action in response to the petition until the scheduled meeting of that committee on 4 October, for two reasons:
(a) to allow time for the current dispensations policy to be “tested”; and
(b) to receive a report from officers at that meeting.
Regarding (a), the policy was tested even before it formally took effect on 1 March, and failed. The refusal to grant a dispensation to a resident councillor to vote on a planning matter concerning three trees owned by a local authority was ridiculed by several councillors at the relevant Planning Committee meeting. The policy was today comprehensively tested against what the public want, as expressed in the petition, and failed comprehensively. There is no point in repeating the pattern of test and failure over the next three months.
Regarding (b), what is relevant to the dispensations policy is public confidence, not officers’ confidence. In any case, the dispensations policy is - in the words of the City Solicitor - “a political issue to be determined by members within the legal framework” [which is permissive for the sake of democracy]. So there is no point in waiting three months for an officers’ report.
The obvious next step is one that should have been taken two months ago, namely, for the Standards Committee to meet and address the residents’ demands for “immediate and fundamental reform”.
Finally, it is worth considering how and why the Dispensations Sub-Committee that met today was composed.
How was the Dispensations Sub-Committee composed?
A Dispensations Sub-Committee is convened to consider requests for dispensations, and is composed of:
- three of the twelve elected members of the Standards Committee; and
- one of the (currently) three co-opted (i.e. unelected) members of that committee.
The Dispensations Sub-Committee that was convened for the purposes of today’s meeting included two elected members, Caroline Addy and Jeremy Simons, and one co-opted member, Judith Barnes, who did not attend. All three had sat on the Standards Committee when the current dispensations policy was developed. They were part of a committee that saw nothing wrong with denying resident councillors the right even to speak on matters which affected their constituents and in which they might have a declared interest. The committee was compelled by the Court to change this aspect of the policy last December, but the rest of the policy remained largely in place, based on a misperception of "public confidence”.
The third elected member of the Dispensations Sub-Committee was Mary Durcan, a resident councillor for Cripplegate ward, who joined the Standards Committee after the current dispensations policy had been introduced. At the Cripplegate ward mote in March, when the petition was signed by all her constituents present, she signed it herself. At the meeting of the Dispensations Sub-Committee today, however, she voted to refuse the general dispensation requests, although they reflected precisely what the petition called for.
Why was the Dispensations Sub-Committee so composed?
Three of the new members of the Standards Committee who have consistently supported standards reform - Randall Anderson, Barbara Newman and Henry Colthurst - were deemed not to be eligible to be members of the Dispensations Sub-Committee that met today, because:
(a) the terms of reference of the sub-committee (approved last October) exclude from its membership any member of the Standards Committee who sits on a committee that will consider matters to which the dispensation request relates; and
(b) they sit on the Planning Committee.
The rule in (a) goes beyond both law and reason. Why should a member of the Standards Committee be excluded from membership of the Dispensations Sub-Committee merely because he or she happens to sit on another committee, and the dispensation request happens to relate to a matter that will be considered by that other committee?
This rule operates mainly against resident members of the Standards Committee, because dispensation requests are invariably made by resident councillors, and resident councillors tend to sit on committees - like Community and Children’s Services and Barbican Residential - that are particularly relevant to their constituents. It is another example of anti-resident bias in the current standards regime.
Even if one accepts that this rule should be followed until it is abolished, it was not followed in this case. The three members mentioned do sit on the Planning Committee, but the dispensation requests were of a general nature, and not just for planning matters. The requests covered matters considered by any committee, including the Community and Children’s Services Committee and the Barbican Residential Committee. Mary Durcan sits on both of them, so if the rule had been followed, she too would have been excluded from membership of the Dispensations Sub-Committee. So also would its other two elected members, because they both sit on the Port Health and Environmental Services Committee, which regularly considers matters of particular relevance to residents (like noisy construction work on Saturdays, and air quality).
A standards regime that has flawed dispensation rules which are followed selectively is in obvious need of “immediate and fundamental reform”, to quote the petition.
TEXT OF AN EMAIL OF 7 JUNE FROM MARK BOSTOCK TO THE STANDARDS COMMITTEE
I am writing to request a dispensation, under section 33 of the Localism Act 2011 (the "Act”), to speak and vote on the matters in which I may have a "pecuniary interest" as described below.
I have chosen not to use the 10-page form produced by the Standards Committee for this purpose as the Act refers only to a "written request” being made, and does not require it to be in any prescribed form. The form produced by the Standards Committee, in my view, contains a fair amount of material that is not properly relevant to the consideration of my request.
For example, section A of the form asks for an explanation as to how granting a dispensation “would not risk damaging public confidence in the conduct of the City Corporation’s business.” Since the form was produced, it has been demonstrated, through a well supported residents’ petition and representations made by the City’s two largest residential associations, that:
(a) the policy of the Standards Committee which is reflected in the form has actually damaged public confidence; and
(b) the public expects their elected representatives to be free to speak and vote on their behalf, within the framework of the law.
I am advised that the law provides for a dispensation to be granted to speak and vote equally. It does not provide for a dispensation to vote to be granted “only in exceptional circumstances”, as the Standards Committee’s policy specifies in section B of their form. The law provides very broad grounds for a dispensation to be granted, including “the interest of persons living in the authority’s area” (section 33(2)(c)). A dispensation need only be granted to speak and vote on a matter in which a member has a “pecuniary interest”. The law, it seems, thus gives primacy to democratic representation over a member’s "pecuniary interest”. It is only when a member is not representing others, but is acting solely in his or her own interests, that the ground mentioned above for granting a dispensation would not apply, and a dispensation, therefore, should not be granted.
Disclosable Pecuniary interest
I have the following "disclosable pecuniary interests” for the purpose of the Act:
(a) a long lease that my wife and I hold in a flat at 815 Frobisher Crescent in the Barbican Estate; and
(b) a lease of a store in the Barbican Estate.
These interests have been published in my register of interests.
Request for a dispensation
I hereby request a dispensation for the remainder of my term of office (which ends in March 2021) to speak and vote on any matter which affects my constituents and in which I may have a “pecuniary interest”, except for a matter which:
(a) affects me uniquely or more than any of my constituents; and
(b) insofar as regards a dispensation to vote only, falls within the restriction imposed by section 618 of the Housing Act 1985 for as long as that provision remains on the statute book;
on the grounds that the grant of this dispensation is in “the interest of persons living in the authority’s area”.
There is some urgency about this request, as I shall be attending meetings of the following committees at which matters will be decided in which, it may be argued, I have a “pecuniary interest”:
(a) the Barbican Residential Committee on Monday 17 June, at which a “charging policy for car parking and stores” will be decided (as noted above, I have a lease of a store in the Barbican Estate); and
(b) the Planning and Transportation Committee on Tuesday 18 June, at which a planning application (18/00335/LBC) will be considered for the installation of replacement illuminated signs in the upper level walkway at Defoe Place (close to the residential flats at the western end of Frobisher Crescent; my flat is in the middle of the Crescent).
Each of these matters falls squarely within the dispensation requested, as it affects a number of my constituents no less than myself. In the case of (a) above, I may speak but not vote, because of the restriction on voting in section 618 of the Housing Act 1985.
In addition to the general comments made in the “Introduction” above, I wish to add the following:-
I am advised that the law provides that a dispensation may be granted for up to 4 years (the length of a councillor’s term of office). I am therefore requesting a dispensation for the remainder of my current term (21 months). This will achieve parity with many other local authorities.
If a matter arises in which I have a “pecuniary interest” and which is covered by any dispensation granted, it does not necessarily follow that I will actually speak or vote on it. In any particular case, I would use my judgment as a member as to what would be appropriate. Neither I, nor any other member, need to be directed by a small number of fellow members on the Standards Committee as to how to act as a Councillor. A majority of our members are elected in predominantly business wards. This may have caused the previous Standards Committee to have so misjudged “public perception” on which it claimed to have based most of the current policy. That committee seemed to think that the public would favour a heavily restrictive approach, whereas the opposite has now been proved to be true.