Two standard problems with two practical non-bureaucratic solutions

Predeterminiation iStock 000016468646Small 146x219Stephen McNamara looks at solutions to thorny issues relating to disclosable pecuniary interests and members wishing to express strongly held views.

Problem 1

Can a member with a disclosable pecuniary interest (a DPI) speak at all at a committee meeting?

The DCLG Guide: "Openness and transparency on personal interests - a guide for councillors" has at page 5 the very worrying assertion that a councillor with a DPI is prevented from "any form of participation [at a meeting], including speaking as a member of the public".

This assertion would appear to be based upon s. 31 (4) of the Localism Act which states that a member with a DPI "..may not…participate..in any discussion of the matter at the meeting". But the previous standards regime (as revised following Richardson v North Yorkshire (2004)) expressly gave to members the same right "so as to attend meetings make representations, give evidence or answer questions as would apply to a member of the general public" - Para 7.5 of the Explanatory Memorandum to the Local Authorities (Model Code of Conduct) Order 2007. Thus the new standards regime would appear to be far stricter and more restrictive of the rights of members than the old regime - according to the DCLG. Or is it?

The solution: s. 31(4) forbids participation in discussion. A better reading of the section takes these words seriously. Thus the section does not prevent representations, questions or statements from a member with a DPI rather it prevents them from being part of the committee discussion. So they should not be part of the committee when the item is being discussed. And best practice would have the DPI member sitting with the public and not with members at such times with the chair explaining, before the DPI member spoke, ( and for the benefit of the public and as a useful reminder to the DPI member), that whilst the DPI member may of course make representations etc that they are forbidden from participating in any discussion at the meeting but they have the same rights as a member of the general public.

Problem 2

Members are increasing likely to express strongly held views on merits before regulatory committees or attend campaign group meetings etc (see various of the pronouncements of Mr Pickles and see the recent Westminster Hall debate) - how is this best to be respected whilst at the same time minimising the risk of challenge?

Section 25 (2) of the Localism Act states: "A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because – (a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter..". And this is really a summation of recent case law on predetermination v predisposition - see, for example, R (Lewis) v Persimmon Homes Teeside Ltd (2008). But if you have, say, a highly contentious planning decision to be taken and members have been busy expressing views, and attending activist meetings, then how can you best protect your council's interest whilst respecting the democratic role of members?

The solution: I suggest that the legal position is explained to all members of the committee and that at the start of the meeting the chair sets out the legal position – (or the legal adviser sets it out) – and the chair then explains that merely because of A…D (ie what they have said previously or the meetings they have attended etc), that their mind is not closed and that further he/she wishes to make it absolutely clear that they will listen carefully to all the evidence and all the debate before reaching a final decision. The chair can then request that each member of the committee identify themselves and clarify as to whether they can approach the matter with a mind that is not closed (and the extent of what they say will vary according to their activities on the matter to be determined).

Of course, this can not be a sham – but it will force members to be clear about their role, remind them all that they have to consider evidence, argument and law before reaching the final decision, and, it is hoped, will help to reassure the public. And it should minimise the risk of a successful challenge on the ground of predetermination. (It will also enable the legal adviser to show their value)

Stephen McNamara is a consultant at Veale Wasbrough Vizards and a former Head of Legal Services at Bristol City Council. He can be contacted on 0117 314 5449 or by This email address is being protected from spambots. You need JavaScript enabled to view it..