Agenda item

Written Grounds for Appeal (cont'd)

Minutes:

The Sub Committee then proceeded to discuss the grounds of appeal in detail and with advice from Mr Oldham, QC.

Arising from its deliberations, the Sub Committee was of the view that on the point raised about the Corporation submitting no further written comments in relation to the grounds of the appeal, it understood that the appeal was not being conceded and the Sub Committee was being asked to take account of the written material that had been before the Hearing Sub Committee and its decision and sanction letters in deciding how to resolve the appeal. Members were advised by Mr Oldham, and accepted, that a lack of further written response from the Corporation and/or the Corporation’s non-attendance at the hearing were not grounds, under the adopted appeal procedure, for allowing the appeal.

Accordingly, Members proceeded to consider the written grounds of appeal.

(1) There was no DPI in the “matter” being considered on 29th January

The Sub Committee agreed that the delegation decision being considered on 29 January should not be conflated with any later determination of the planning application. Mr Oldham advised that whether Ms Pearson had a DPI in the delegation decision depended on if, in the Sub Committee’s view, and on the particular facts of the case, there was a sufficient material connection between the delegation decision and the substantive determination of the planning application which might follow.

The Sub Committee were in agreement there was sufficient material connection, noting that the matter of whether the Corporation or Islington was to determine the planning application was contentious. The Sub Committee considered that members must have regarded the issue as having at least the potential to affect the outcome of the planning application and noted that, had the delegation been agreed at the 29 January meeting, that resolution would have ended the Corporation’s involvement in the application. As a result, the Sub Committee came to the conclusion that Ms Pearson had a DPI in the delegation decision.

(2) There was no breach of paragraph 13 of the Code because the decision on 29 January could not and/or did not have an impact on the value of the DPI, i.e. the lease of the flat in Hatfield House

Members noted that paragraph 13 of the Code refers to a “pecuniary interest” in the matter under consideration and deliberated whether that meant that the matter under consideration must or might affect the value of the interest.

The Sub Committee were advised by Mr Oldham and accepted that the contention that there is no DPI without an impact on the value of the interest would be a misreading of the legislative scheme, and thereby of paragraph 13, an understanding of which should be informed by that scheme.

Accordingly, and whilst accepting Ms Pearson was not seeking pecuniary advantage, the Sub Committee did not agree with this ground of appeal.

(3) There was no breach of paragraph 13 because Ms Pearson was unaware that she had a DPI in the matter being considered on 29 January

The Sub Committee noted that this ground of appeal contended that, actually or in effect, s 31(1)(c) of the 2011 Localism Act ought to be imported into paragraph 13 of the Code.

Members considered the contention that, since Ms Pearson was not aware on 29 January that she had a DPI in the decision to be taken, there was no breach of paragraph 13 of the Code. Mr Oldham advised that the “awareness” element referred to in s 31(1)(c) was not imported into paragraph 13 of the Code. The Sub Committee were advised that an understanding of paragraph 13 was to be informed by section 31(1)(b); but whether paragraph 13 could be said to “give effect to” s 31(1)(b) was possibly not a strictly accurate way of describing the relationship between the two. S 31(1)(b) and paragraph 13 had different purposes: one was a statutory provision breach of which had certain consequences specified in the 2011 Act, and the other was part of a Code adopted by the Corporation, breach of which had other consequences.

Members were in agreement that, even if it were right to say that paragraph 13 gives effect to s 31(1)(b), there is no reason why it must be interpreted as giving effect to s 31(1)(c), particularly when paragraph 13 makes no mention of the state of awareness or knowledge of the member.

Accordingly, the Sub Committee did not accept this ground of appeal.

(4) There was no breach of paragraph 13 because there was a reasonable excuse for Ms Pearson’s participation in the meeting on 29 January

The Sub Committee accepted Mr Oldham’s advice that it would be incorrect to read the Code as being subject to a “reasonable excuse” defence as such a defence was not referred to in the Code, and the legislation refers to it only in the context of criminal liability.

Accordingly, the Sub Committee did not accept this ground of appeal, but were in agreement that had it taken the view that there was a “reasonable excuse” defence to breach of the Code, it would have found the defence made out, largely for the reasons explained below in relation to sanction.

(5) In deciding that there had been a breach of paragraph 13 of the Code, the Hearing Sub Committee took into account the fact that Ms Pearson should have sought guidance from the Monitoring Officer or Clerk to the Committee before participating in the meeting on 29 January

The Sub Committee was of the view that the Hearing Sub Committee’s letter should not be understood as meaning that the Hearing Sub Committee had reached its decision on breach of the Code because Ms Pearson had not sought advice from the Monitoring Officer or Clerk to the Committee.

Accordingly, the Sub Committee did not accept this ground of appeal.

However, in deciding there was a breach of paragraph 13 of the Code, the Sub Committee did not take into account whether (as the Hearing Sub Committee believed) Ms Pearson should have sought advice from the Monitoring Officer or the Clerk.

(6) There were procedural irregularities on the part of the Corporation in the decision making process leading up to and including the delegation decision on 29 January, and in the complaint against Ms Pearson which followed, such as to amount, singly or in any combination, to an abuse of process which should prevent any finding of breach of the Code

The Sub Committee noted Mr Oldham’s advice that as a matter of law, the procedural irregularities, if made out, would not be relevant to its determination of whether a breach of the Code had occurred.

Accordingly, the Sub Committee did not accept this ground of appeal, and did not think that it was generally necessary or appropriate to make findings on the various instances of alleged procedural irregularity, with the exception that the Monitoring Officer had not “compl[ied] with the Corporation’s standard procedure of requiring a formal complaint to be made by an identified complainant”. On this matter, the Sub Committee’s legal advice, which it accepted, is that this departure did not invalidate the standards process such as to mean that the appeal against a finding of breach of the Code should succeed. Under s 28(6)(a) of the 2011 Act, the Corporation must have in place arrangements under which allegations of a breach of the Code can be made and investigated. The fact that the Corporation has a written complaints procedure does not prevent the initiation and investigation of complaints in a different fashion.

Conclusion of Sub Committee’s consideration of the appeal against the decision that a breach of paragraph 13 of the Code took place

For the above reasons, the Sub Committee did not accept any of the grounds of appeal against the decision of the Hearing Sub Committee on whether there had been a breach of the Code.

Members then proceeded to consider the appeal against sanction decision.

Sanction Decision

The Sub Committee were in agreement that they had sympathy with Ms Pearson’s position, and accepted that her sole motivation for wishing to participate in the debate and to vote on 29 January was so that constituents of her ward could have a voice in the decision to be taken, and that her actions were not motivated by any possible impact, financial or otherwise, on the lease of her flat in Hatfield House.

Members noted that the item in question on 29 January was added to the agenda urgently on a Friday afternoon for the following Monday at 10.00am, giving virtually no time to seek advice as to whether to participate. The Sub Committee was clear in its view that it would draw no inference against Ms Pearson for not seeking advice from officers over the weekend. Members also acknowledged that advice had been sought in good faith from Mr Harrower and the advice provided, also given in good faith and to the best of his ability, was that the Code did not prevent Ms Pearson from participating. The Sub Committee’s opinion, however, was that the advice was incorrect and the proper source of advice would have been the Monitoring Officer, or the Assistant City Solicitor or Clerk to the Committee attending the meeting, either on Friday afternoon or before the meeting began on Monday, whilst acknowledging the short timescale to seek this advice. Members also considered that, in the absence of such advice beforehand, the matter could have been raised at the meeting itself.

The Sub Committee noted that Ms Pearson was a relatively inexperienced Common Councilman when the meeting on 29 January took place, that she had attended induction training soon after election in March 2017 and again in January 2018, and that her representations during the appeal made it very clear that she had rightly taken the complaint very seriously, and that its impact on her had been very considerable.

Conclusion of Sub Committee’s consideration of the appeal against sanction

The Sub Committee was in agreement that the Hearing Sub Committee’s decision to impose the sanction of censure was wrong and that no sanction should be imposed.

Other Matters

The Chairman of the Sub Committee asked that the Town Clerk draft a note for him to send to the Chairman of the Standards Committee on lessons to be learnt from the overall process.

RESOLVED – That

(a) the Sub Committee agree that Ms Pearson breached paragraph 13 of the Code of Conduct for Members, by participating in and voting on a matter in which she had a disclosable pecuniary interest at the Planning and Transportation Committee on 29 January 2018 without a dispensation to do so, and that the appeal against the decision by the Hearing Sub Committee on 21 May 2018 not be allowed;

(b) no sanction should be imposed for that breach and that the appeal against the sanction imposed by the Hearing Sub Committee on 21 June 2018 be allowed;

(d) the Town Clerk be instructed to draft a note from the Chairman of the Sub Committee to the Chairman of the Standards Committee on lessons to be learnt from the overall process.