Standard raising

Conduct issues such as bullying, personal interests and pre-determination continue to be a minefield. Owen Willcox looks at recently published guidance from the Standards Board.

The Standards Board has recently published short guidance documents on some key areas either covered by or of relevance to the statutory Code of Conduct for members. These papers deal with Bullying, Lobbying, Personal and Prejudicial interests, Predisposition, Predetermination or Bias, and the Code and represent useful short guides for members and those advising them.

Bullying

The Code of Conduct prohibits the bullying of any person, including other members, officers and the public. Bullying is characterised as offensive, intimidating, malicious, insulting or humiliating behaviour which attempts to undermine, hurt or humiliate an individual or group.

As well as being completely unacceptable behaviour, the Guidance states that it can affect the authority’s ability to provide services. Bullying can create a working environment with an atmosphere of mistrust, insecurity and fear. However, criticism of officers will not, in itself, constitute bullying. Members are allowed to express disagreement with officers and question officer performance so long as it is done in an appropriate and private way. A personal attack, or criticism that is offensive, is likely to cross the line of what is acceptable behaviour.

Those who believe they have been the victim of bullying by a member are encouraged to complain to the local standards committee. A link is provided for information about making a compliant. There is also helpful guidance about collecting evidence.

Lobbying

This is defined as the practice of influencing decisions made by government at national or local level. Many local councillors are involved in a number of groups or campaigns either as a member of a particular interest group or as an individual.

The Board offers members the following advice:

To register their interest: Membership of lobby or campaign groups should be included on the register of interests, as these are bodies “whose principal purposes include the influence of public opinion or policy”.

To declare their interest: If they are a member of a group that lobbies or campaigns about an issue that comes up for discussion or decision at their authority, they must declare a personal interest but can continue to participate unless the interest is also prejudicial.

To consider whether to withdraw from the meeting: Under the Code of Conduct members only have to withdraw from a meeting where their personal interest is also prejudicial.

The Guidance explains the test for prejudicial interests and advises that if the personal interest is not an exempt one and does affect financial or regulatory (e.g. licensing) interests, the member will have to consider the following general test for prejudicial interests: Would a member of the public, who knows the relevant facts, reasonably think your personal interest is so significant that it is likely to prejudice your judgement of the public interest?

If a prejudicial interest arises members may address the meeting on the issue to answer questions or make representations prior to withdrawing, provided that the same right was available to members of the public.

Personal and Prejudicial Interests

This Guidance paper explains what constitutes a personal interest and what the member should do if he or she has such an interest. Members must declare a personal interest, and the nature of the interest as soon as it becomes apparent, in all formal meetings before the matter is discussed. The Guidance explains the nature of a prejudicial interest.

A personal interest will also be a prejudicial interest if:
(a)    the matter does not fall within one of the exempt categories of decisions under the Code, for example, setting the council tax;
(b)    the matter affects the member’s interests financially or is about a licensing, planning or other regulatory matter that might affect their interest;
(c)    a member of the public, who knows the relevant facts, would reasonably think the personal interest so significant that it is likely to prejudice the member’s judgement of the public interest.

Finally, it explains what should be done if the member has a prejudicial interest.

A member must declare that they have a prejudicial interest and the nature of that interest as soon as that interest becomes apparent. They should leave the room unless members of the public are allowed to make representations, give evidence or answer questions about the matter. Members must leave the room immediately once they have finished speaking.

If the authority does not provide members of the public with any right to speak, the member would need to leave the meeting after declaring the nature and extent of their interest.

However, they can:

• make written representations in a private capacity.
• use a professional representative to make an application, for example a planning application.
• arrange for another member of the authority to represent the views of the members constituents.

Predisposition, Predetermination or Bias and the Code

This paper explains the difference between predisposition and predetermination.

Predisposition

Predisposition is where a councillor holds a view in favour of or against an issue, for example an application for planning permission, but they have an open mind of the merits of the argument before they make the final decision at the council meeting.

Predetermination or bias

Predetermination or bias can be a significant issue. Here a councillor’s mind is closed to the merits of any arguments relating to a particular issue, such as an application for planning permission, and makes a decision on the issue without taking them into account.

Councillors must not even appear to have already decided how they will vote at the meeting, so that nothing will change their mind. This impression can be created in a number of different ways such as press quotes, what they have said at meetings or written in correspondence.

Decision-making

The paper explains the important difference between councillors involved in making a decision and councillors seeking to influence it. Councillors not involved with making a decision are generally free to speak about how they want the matter decided.

When considering whether there is an appearance of predetermination or bias, councillors responsible for making a decision should apply the following test: would a fair-minded and informed observer, having considered the facts, decide there is a real possibility that the councillor had predetermined the issue or was biased?

In applying this test, they should remember that it is legitimate for a councillor to be predisposed towards a particular outcome on the basis of their support of a general policy, as long as they are open-minded and consider the arguments and points made about the specific issue under consideration.

The paper then addresses how predetermination or bias can arise and provides some examples and helpful guidance relating to those circumstances although some discussion of the potential overlap with prejudicial interests would have been useful.

Conclusion

The guidance on bullying is intended to remind members that bullying is both completely unacceptable and detrimental to their authority as a whole. However, it makes the point that constructive criticism (which is neither personal nor offensive) will not in itself, constitute bullying. Members should focus on building relationships with officers that are based on mutual respect and trust with an understanding of the different roles and responsibilities of officers and members.

The guidance on lobbying reminds members that they must register their membership of lobbying groups. Further, they must declare an interest when issues on which their lobby group campaigns come before the authority. However, they can continue to participate unless their interest is prejudicial.

The guidance on interests reminds members with prejudicial interests that they should leave the room unless members of the public are allowed to make representations or answer questions. However, they must leave immediately once they finish speaking.

The guidance on predisposition and predetermination makes the important point that members may hold preliminary views on matters as long as they keep an open mind and consider opposing arguments before they make their final decision. Where members minds are closed to the merits of any arguments relating to a particular issue (or appear to be so closed), their decisions will be unlawful and open to challenge.

Owen Willcox is a senior assistant solicitor at TPP Law