On 22 November 2022, I put in a complaint about the mayor’s support and presence of the disposal of public land to his boxing club. We now know that he was a member at the time.
The complaint pointed out that no declaration of interest had been registered —a police matter if true— and that the mayor did not declare the interest or withdraw from the cabinet meeting.
The council told me that the complaint would not proceed because the mayor had ‘verbally’ told Tim O’Gara, the monitoring officer (MO), prior to the meeting that he had an interest, and the the MO had declared there was no pecuniary or prejudicial interest involved — secretly?
I sent in the following reply on 23 December 2022, amongst a variety of communications, including a copy of the mayor’s register of interests from June 2022. The declaration was not present on the public register.
The following response is a bit long, but it is meant to be comprehensive. The legal team at the council have now [today 16 January 2023] shown evidence that he did have a conflict of interest, he was a member, but their defense is that the MO judged it was not a problem (my wording).
Read below and see if you think it would hold up in court or in front of any reasonable member of the public.
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Dear Nancy,
You say that the mayor's 'voluntary registration' of his non-pecuniary role with Empire Fighting Chance was disclosed in his register of interest for five years and was removed on 13 December 2022.
It was not in his register of interests in June 2022. I attach a copy of that register.
It was not registered in October when I wrote about the disposal of the asset and checked the register.
Without evidence of it actually being on there, I cannot accept that it was registered as an interest. In fact, the evidence suggests the opposite of what you are claiming.
In relation to guidance on how to deal with such an interest, I provide the following information. The importance must be clear from the explicitly comments and spirit of the Code, that it is important that the public be aware of members' interests and that justice and decision making be seen to be done and made, fairly:
I refer to the LGA member code of conduct guidance, starting at 9.1. These are all sections you will already be familiar with but please bear with me as I set out my thinking.
Section 29 of the Localism Act 2011 requires the monitoring officer to establish and maintain a register of interests of members of the authority.
Members need to register their interests so that the public, local authority employees and fellow councillors know which of their interests might give rise to a conflict of interest.
The register is a public document that can be consulted when (or before) an issue arises.
The register also protects members by allowing them to demonstrate openness and a willingness to be held accountable.
I quote: "it is also important that the public know about any interest that might have to be disclosed by you or other councillors when making or taking part in decisions, so that decision making is seen by the public as open and honest. This helps to ensure that public confidence in the integrity of local governance is maintained." (my emphasis)
In relation to the registration of interests, there is a simple principle at heart -- as public decision-makers, decisions must be made in the public interest and not to serve private interests.
Disclosure in the register and at meetings, is about letting members of the public and interested parties know where members are coming from when involved in decision making and is to enable members to be 'up front' about who they are and what their conflicts of interest might be.
Conflicts of interest in decision making as a councillor or other member, and what in public law is known as 'apparent bias', are an established part of the local government legal landscape.
The Nolan Principles and the Model Code require councillors to act impartially (i.e. not be biased when carrying out their duties).
A single councillor who is guilty of bias is enough to strike out the whole decision when challenged before the courts.
The test at law for apparent bias is "would a fair-minded and informed observer, having considered the facts, conclude that there was a real possibility of bias."
Disclosable pecuniary interests (DPIs) and Other Registerable Interests (ORIs) must be recorded on a public register.
The mayor's interest in EFC is being referred to as a non-registerable interest in this complaint. This third category does not require registration but will need to be declared as and when it arises, according to the LGA Code.
In brief, the model code summarises when the requirements of the code apply:
1. when you or someone you are associated with has an interest in the business of your authority, and;
2. where you are aware or ought reasonably to be aware of the existence of that interest, and
3. you attend a meeting of your authority at which the business is considered.
It is established that all three of these requirements are met with the mayor's link to Empire Fighting Chance.
The code goes on to say that "You must disclose to that meeting the existence and nature of your interests at the start of the meeting, or when the interest becomes apparent.
The code says you should not participate in the relevant business in two circumstances.
a. when a matter directly relates to that interest. Or
b. when a matter affects that interest to a greater extent than it affects the majority of inhabitants and
-- a reasonable member of the public would thereby believe that your view of the public interest would be affected.
What I believe is being claimed by the MO here is that not only did the mayor not put in writing an application for a dispensation, which he should have done, but he also should have withdrawn, which he didn't do:
The code says "if the matter is a non-registrable interest you must always withdraw from participation where the matter directly relates to that interest unless you have a dispensation."
The two-part test for whether the mayor should have participated in that decision relates to whether the issue affects the financial interest or well-being of that interest.
1. Does the matter affect the interest more than it affects the majority of people in the area to which the business relates?
-- the mayor has actively brought persons from Harvard to EFC; he has helped the club raise over £800k at a charity where he personally spoke in October 2022, and he communicated with the money-giving charity to talk about EFC and encourage that a huge amount of money be given to them.
--the answer to the first part of the test must, therefore, be Yes.
2. Would a reasonable member of the public believe that it would affect his judgement?
-- the mayor is an ambassador of the club, has communicated on behalf of the club for its financial benefit, and has done so with council time and property --he has given the club city land valued at £1.35m.
The answer to the second part of the test would undeniably be yes if it were to be tested at court.
The answer to whether the mayor had an interest that should have been declared can only be yes, following the advice and guidance from the LGA code.
DISPENSATION
When a member has such an interest, the code allows them to apply for a dispensation.
The Localism Act sets out the arrangements for applying for a dispensation where there is a DPI. There isn't a statement about the other interests but the code proposes that the same procedure should be applied.
"A dispensation must be applied for in writing to the 'Proper Officer'(the MO in this case) in good time before the relevant meeting.
There are three distinct elements in the rules against bias:
1 - the first seeks accuracy in public decision-making;
2 - The second seeks the absence of prejudice or partiality on the part of the decision-maker.
3. The third requirement is for public confidence in the decision-making process.
The appearance of bias can itself call into question the legitimacy of the decision-making process.
Justice should not only be done but should manifestly and undoubtedly be seen to be done.
Conclusion
The LGA code recommends that if the member wishes to seek a dispensation, they must apply for it <<in writing>> and in good time before the decision is taken.
A verbal update before the meeting fulfils neither the criteria of being written or in good time.
More importantly, no member of the public could have been deemed to have been informed of the mayor's clear and prominent interest in the club at the time of his decision.
The LGA recommends that in such circumstances he should not have been involved in the decision at all.
As with ignorance of the law being no excuse because then everyone would use it as a defense, assurance of a verbal request for a dispensation or notification of interest, cannot be a defense because then everyone would use it.
I cannot reach the same conclusion as the MO or the head of legal services in this case. If you would like to present your reasoning in relation to the tests on bias and in determining whether an interest was held and whether participation should have been withdrawn, I am open to reading them.
I have seen no such attempt by the MO in this case. It is important that the public be informed of the mayor's interests when making this decision.
The LGA code was designed to protect local government's democratic role, encourage good conduct and safeguard the public’s trust in local government.
It is vital that it be upheld.
Thanks for Sharing this Joanna it's no Different from LCC gifting asset's away for one pound