Agenda item

Report of the Comptroller and City Solicitor.

The Committee considered a late, separately circulated, joint report of the Town Clerk and Comptroller and City Solicitor setting out final details of the Working Party’s draft future policy and guidance on dispensations, and revisions to the dispensation request application form. 

The Chairman stated that he hoped that this matter could be concluded today following extensive discussion and consultation on the documents to date.

Members noted that the Dispensations Working Party had met early in the new year, following the meeting of the Court of Common Council in December 2018, to consider/note feedback.  There had also been a number of Member workshops throughout December 2018 and the views expressed here and, subsequently on email, had also been noted.   The latest version of the Policy, before Members today, had been circulated to Members of the Working Party.

The Chairman stressed that, whilst all feedback had been noted, it had not been possible to include suggestions that were incompatible with legislation. 

The Committee were informed that, in the new version of the documentation, some material had now been included within the appendices in an attempt to make the documents more user friendly. There was now also a greater distinction between applications for dispensations under delegated authority and others which was highlighted at the beginning of the dispensations application form.

The documentation had undergone some significant redrafting following the steer provided by the December 2018 Court of Common Council meeting and the Committee felt that the final draft was a sufficient and adequate response to this. It was hoped that the Court would appreciate this.

The Comptroller and City Solicitor explained how the Court’s request had subsequently been incorporated verbatim into the latest version of the documents; which, together with the new category of Delegated Dispensations, changed the emphasis of the policy.

The Chairman went on to highlight that meetings to determine dispensation applications would, in almost all cases, be heard in public and that any application received would therefore, normally, be published, even if it contained special category personal data that was relevant to the application.  Whilst this had always been the case this had now been made explicit.

The Chairman was commended on the work of the Working Party and there was general acceptance of the need to reach a consensus and compromise in all matters.  It was stressed, however, that there had never been any intention to dilute Members’ role as community representatives.  The Working Party were hopeful that the final, amended document would be more agreeable to the Court of Common Council.

A Co-opted Member, who had also been a member of the Working Party stated that, whilst he found the paragraph relating to Speaking on general housing matters difficult personally, in that it went further than he was comfortable with, he was satisfied that the Working Party had given the matter very careful consideration and was therefore happy to agree this and the amended policy in general today.

A Member questioned the specific examples cited at paragraph 6) of Appendix 1 under the heading “ When is a disclosable pecuniary interest engaged?”. He argued that air quality may, for example, be a DPI if it was a factor in the consideration of a  planning application near to a Members’ property which would adversely affect air quality. He suggested that refuse, street cleaning and air quality be clearly categorised as City-wide matters; and that a caveat be included regarding relevant employment and contracts. 

The Member went on to state that, whilst the flow-chart featured at Appendix 2 was a helpful guide, the second box re: DPI’s should be split into its component parts to  make it clear that consideration needed to be given to both registering a DPI and participation. It was also highlighted that the chart might more helpfully be titled ‘Participation at Meetings’ as opposed to ‘Declaring Interests at Meetings’. 

A Co-opted Member stated that he felt it was unhelpful to give examples which might be open to interpretation. The Comptroller and City Solicitor clarified that the Working Party/Officers had been pressed to give examples through the consultation process. He agreed, however, that the examples provided could be tightened up. There was a general agreement that examples were helpful and the Chairman suggested that the final wording around this be delegated to the Comptroller and City Solicitor.  

The Deputy Chairman stressed the challenges and tensions in resident members both maintaining selflessness and being able to represent their constituents. The small size of Wards meant a DPI was frequently engaged with resident members. Being elected as Independents meant it was not easy to pass an issue to another Ward member. Given this and other complicating factors, she stated that she felt that the draft presented to the Committee today was as good as compromise as could be achieved. She thanked the Comptroller and City Solicitor for his very substantial input throughout.

A Member commented on the application form and referred to the many objections received from Members of the Court regarding its length. He suggested that if the section titled ‘Statutory Grounds’ were to be placed directly after section ‘A’ the form for delegated authority applications would only be 2 pages long.

The Comptroller and City Solicitor reported that the Working Party had given a great deal of thought to the layout of the application form. He added that the section titled ‘Statutory Grounds’ needed to be completed for applications for both dispensations under delegated authority and from the Standards Committee. This section would therefore need to be repeated after both A. and B. if the layout were to be altered in the way suggested.

The Chairman asked that the instruction not to fill in or submit the remaining sections of the form if only applying for a dispensation that the Town Clerk is able to grant under delegated authority that featured directly after the section titled ‘Statutory Grounds’ be placed in red text to ensure that it stood out as much as possible. Beyond this, he stated that he was reluctant to redesign the application form further at this stage.

A suggestion of introducing two separate application forms – one for delegated authority dispensations and one for dispensations from the Standards Committee – was not supported by the Committee.

The Committee were informed that the new system would be carefully monitored with a post implementation review taking place after a year. 

Given the number of previous refusals on the grounds of inadequate information provided within application forms, a Co-opted Member suggested that it would be helpful to recommend, within the guidance, that ‘N/A’ be entered in to any box that did not apply. This would make it clear that the applicant had read and considered the form in full.  A Member suggested that a computer code could be used for the electronic form, so that boxes could not be skipped until completed. 

The Chairman stated that he was keen that the guidance didn’t give the impression that a substantive answer was necessarily required for every section given the feedback received to date and some other Members shared the concern that this might be perceived as overly bureaucratic. A Member referred to the serious consequences of non-compliance and therefore stressed that the application form should not be oversimplified and should contain clear warnings and guidance. A Co-opted Member agreed with this point and felt that elected Members should be able to cope with the application form in this format. It should be made explicit that the Comptroller and City Solicitor was available to advise in terms of any specific difficulties encountered.

Discussion continued and the following suggestions were made in respect of specific paragraphs:

a)        Para 3, Appendix 1 – ‘Application’ - it was suggested that there could be more elaboration in respect of  ‘all of the City’s functions’ and whether this was a reference to both LA and Non-LA functions or just LA functions;

b)        Para 4, Appendix 1 – ‘Statement of General Policy’ -  a Member questioned the interchangeable use of the words ‘authority’ and ‘discretion’ in relation to the Standards Committee;

c)         Para 5, Appendix 1 - ‘Statement of General Policy’ -  a Member asked that the guidance make clear that this was the guiding principle which now underpinned the Policy within the final sentence of this paragraph;

d)        Para 6, Appendix 1 – ‘ Disclosable Pecuniary Interests’ -  a Member suggested that the ‘other guidance’ referred to here be set out in terms of what this was and where it could be found;

e)        Para 15, Appendix 1 – ‘Comments on the Statutory Grounds’ – a Member asked that the wording be amended to eliminate the double negative to read ‘The committee  will consider whether granting a dispensation would be to the advantage of that group’ which would be more in keeping with the statutory language around this;

f)          Para 16 (b), Appendix 1 – ‘Speaking on Planning and Licensing Applications’ – a Member referred to the fact that the Licensing and Planning regimes were totally different and questioned the intermingling of the two within the guidance. A Ward Member could speak against a Licensing applications, for example, regardless of whether or not they had submitted a representation in writing. This appeared to confuse the matter with Members speaking as members of the public. It was clarified that the rights of a Member to speak regarding planning/licensing applications were overridden if they had a DPI that was engaged. The Comptroller and City Solicitor clarified that the wording at paragraph 16(b) was a matter of policy and that the Working Party felt that this was a reasonable balance.

In response to a question as to whether general dispensations could be granted for the balance of a Members existing tenure, the Chairman stated that, depending on the application, this was possible. It was also within the Town Clerk’s delegated discretion. The Comptroller and City Solicitor explained that the maximum length of a dispensation was for four years, so Aldermen might have to reapply during their term of office. For delegated dispensations the period had been linked to the four yearly Ward elections for Common Councilmen, for reasons of administrative expediency.

A Member requested that, for transparency, a paragraph be included within the guidance detailing where members of this Committee/the Dispensations Sub Committee should go in terms of applying for their own dispensations. The Chairman stated that he believed that this was covered within the terms of reference of the Dispensations Sub Committee but that it may be helpful to cross reference here.

There was general agreement that the guidance should clearly state that any change of circumstances or acquisition of any further DPI would require a further application for dispensation even if a dispensation had previously been granted for the whole tenure of an elected Member’s four year term of office.  The Comptroller and City Solicitor agreed to incorporate this.

In concluding, the Chairman thanked Officers and Members for their work on a very challenging project.  There was general agreement that further consideration of the points raised today be delegated to the Town Clerk, in consultation with the Chairman and Deputy Chairman and the Comptroller and City Solicitor, to consider whether it would be both possible and practical to include them.   Members agreed that the document did not require further deliberation thereafter as it had already been subject to extensive debate. 

Members went on to discuss how best to launch the new policy and guidance. It was agreed that it should be reported to the Court of Common Council, for information, on 7 March 2019, following implementation on 1^st March 2019. The report would make clear that the policy and guidance had been reconsidered in light of the feedback received and that substantial changes/concessions had been made as a result of this.

Members agreed that it should also be shared with the Chairman of Policy and Resources beforehand to seek her support for the documentation, in that it reflected the requests of the Court of Common Council adequately.   

RESOLVED – That:

1.    Authority be delegated to the Town Clerk, in consultation with the Chairman and Deputy Chairman of the Standards Committee, and the Comptroller and City Solicitor to approve the final text of the policy and guidance and the dispensation request application form, having considered the suggestions made at today’s meeting;

2.    The new Policy be implemented with effect from 1 March 2019.

3.    A report be presented, for information, to the Court of Common Council on 7 March 2019 with the new policy and guidance and dispensation request application form appended.

4.    The Policy and guidance and dispensation request application form be subject to a post implementation Review by the Standards Committee in March 2020.