Agenda item

Report of the Comptroller and City Solicitor.

The Committee considered a report of the Comptroller and City Solicitor presenting a further review of the Dispensation’s Policy and Leading Counsels Opinion on this.

The Chair stated that she hoped that the Committee could proceed today to endorse its policy on speaking when a Member had an engaged, disclosable pecuniary interest, with possible additions to delegated items, and would also agree Counsel’s recommendations concerning voting when a Member had an engaged, disclosable pecuniary interest. 

The Chair called upon the Comptroller and City Solicitor to formally introduce the report.

The Comptroller and City Solicitor referred to the proposal from an elected Member to grant what he referred to as general dispensations. Advice had been obtained from Leading Counsel on the Members’ proposal and the Dispensations Policy in general. The Comptroller and City Solicitor observed that Members were still being urged by the Member who had submitted comments on Counsel’s opinion, in the strongest possible terms, to adopt a policy that Leading Counsel had concluded was unlawful.

The Comptroller went on to state that if the unlawfulness of the proposed general dispensations were less clear cut then Leading Counsel would doubtless have said so in his opinion. The Comptroller reminded the Committee that they were bound by the statutory scheme with regard to dispensations. Given the strong feelings on both sides, the Comptroller went on to highlight that Standing Order number 9 (4) provided for a decision of a Committee or Sub-Committee to be referred to the Court of Common Council if supported by 20 elected Members. He also underlined that there was a risk of a legal challenge being launched, whatever decision was taken today.

The Comptroller and City Solicitor continued by explaining that it was his role to advise the Committee honestly and clearly on the Policy but that the ultimate decision as to its application was for Members to make. He concluded, however, by making it clear that, should the Committee choose to act in a way that he considered to be unlawful, he would as Monitoring Officer have a statutory duty to report the matter to the Court of Common Council which must then meet to consider his report within 21 days – any decisions around dispensations would be frozen until then. In these circumstances, it would be for the entire Court to reach a decision on the Dispensations Policy.

The Chair thanked the Comptroller and City Solicitor for his useful introduction and drew Members’ attention to the three recommendations within the report. The first of these was for the Committee to formally consider and note Leading Counsel’s Opinion, particularly with regard to dispensations to vote, in light of the alternative recommendation put forward by an elected Member which had been deemed unlawful in Counsel’s view. The Chair invited comments on this point.

A Member spoke to state that he had complete faith in the advice from the Comptroller and City Solicitor on this matter and had also read the opinion of Leading Counsel with interest. He had, however, reached the conclusion that the City Corporation were still making too much of the matter and stated that he found it absurd that resident Members elected by their local residents may not be able to speak on matters where they had an engaged DPI without a dispensation. He questioned what the harm in allowing all Members the right to speak on all matters for the duration of their elected terms would be as opposed to requiring them to apply for this ability on a case by case basis. He referred the Committee to the statement within Leading Counsel’s opinion which clearly stated that the prohibition on speaking and voting do not necessarily stand or fall together and that a relevant authority may, on a written request…, grant a dispensation relieving a member from either or both of these restrictions. He suggested that, should his suggested approach be taken with regard to speaking with an engaged DPI, the Standards Committee could then focus, quite properly, on the more ‘knotty’ issue of voting. He noted that 50 applications for dispensations to date had related to the Barbican Residential Committee and 20 to Housing Governance. He therefore called for a sensible and pragmatic way forward on these matters which were clearly also of particular concern to resident voters. He also referred to three previous applications  for dispensations to speak on general housing matters that had been declined.

The Chair responded to state that the starting point on the law around dispensations was that a Member with an engaged DPI may not speak or vote. There was therefore an important balance to strike in terms of measuring statutory requirements with other considerations. She added that the three rejected applications referred to by the speaker had been under the previous regime. She reminded the Committee that the existing dispensations policy had only been in operation since March 2019.

Another Member spoke on what he believed could be a third way forward although he found it difficult to foresee how this matter might be properly resolved today. He stated that, from the opinion of Leading Counsel, it was very clear that the general dispensations requested by some Members to date would not work in such broad terms but he also remained unconvinced that the ‘tinkering’ suggested within the report would resolve the matter.

The Member went on to agree with the previous speaker, that housing matters were clearly a particular problem. He highlighted that, just because an elected Member might have a DPI in relation to a housing matter, it did not mean to say that that interest was engaged. He stated that the fact that this was recognised within the opinion of Leading Counsel was, in his view, significant progress. He went on to state that, even in the City’s four statutory residential Wards, any DPIs engaged on Planning or Licensing matters were likely to be fairly widely scattered but that this was not so on housing matters. Counsel had seemingly provided a way around this by suggesting that a relevant authority may grant wider dispensations, dealing with ‘a category of cases over a period of years. The Member recognised that the City were in a unique situation with regard to the governance of housing matters and that this Committee should therefore ask Counsel for his views on automatically granting general dispensations to Members with an engaged DPI to speak on housing matters for the duration of their term of office. He commented that a number of authorities such as Tower Hamlets had already taken this approach. 

Another Member raised a point of order and challenged the previous speakers reference to statutory residential Wards within the City, highlighting that there was no reference to such Wards within the relevant legislation.

The Chair interjected to state that the amount of development in the City in recent years had led to some Wards, not traditionally considered as residential, being home to more residents than some that were. She also spoke to clarify that dispensations on general housing matters were already available to Members as detailed within the report. She stated that, in her opinion, it was hard to conceive of anything relating to general housing that was not already covered by this with the exception of the provision of parking spaces and private storage spaces separate from a dwelling which it was proposed should be added at today’s meeting. She added that these types of dispensation need only be applied for once for the entirety of a Members’ four-year term of office and that the City Corporation were also now already in the process of seeking to repeal section 618 of the Housing Act 1985.

The Member responded to the points raised to state that he believed that the residential Wards within the City were referenced in legislation. He also highlighted that some resident Members did not have a lease from the City and that this was an important differential issue. The Member added that he recognised that dispensations on general housing matters were available but was arguing that these might be granted automatically to offer certainty to Members of residential Wards where engaged DPI’s tended to be concentrated.

The Comptroller and City Solicitor suggested that, administratively, application forms for general housing dispensations could be handed to Members upon election. This was agreed. He also agreed with the point made by the Chair that further guidance from Members’ as to what else might usefully be added to the current general housing dispensation provisions would be welcomed.

Another Member spoke to state that they did not believe that the issue here was with the Standards regime but was, instead, around how the City Corporation governed housing, particularly on the Barbican Estate. They added that no other local authorities faced the same issues or ran their housing estates in this way. The particular problem was with the Barbican Residential Committee which was comprised of elected Members who were residents of the Barbican Estate as well as non-resident Members, meaning that issues would inevitably arise at this Committee where DPIs would be engaged for many. They added that a Governance Review would be taking place this year and hoped that this might offer some potential solutions to this particular problem.

Another Member interjected to say that he had seen this problem arise more frequently in meetings of the Community and Children’s Services Committee than at the Barbican Residential Committee.

The Member continued to speak by stating that they agreed that Community and Children’s Services Committee was equally problematic here. They went on to state the Committee had been asked for their preference between the opinion of Leading Counsel in relation to dispensations and that of an elected Member. They added that Counsel was one of the most eminent practitioners in the whole country with particular expertise in local government.   They were therefore of the view that the advice of Counsel should be preferred. They commented that Leading Counsel had previously advised the City Corporation on its Sexual Entertainment Venue policy and had been engaged again on this matter at the suggestion of a former Chairman of the Licensing Committee. She was no supporter of the Committee’s approach to dispensations and so there could be no suggestion of partiality in Leading Counsel’s selection. The Member concluded by stating that they felt that the Committee should adopt Counsel’s suggestions as to how the current Dispensations Policy ought to be improved and was clear that the alternative proposals put forward by the elected Member were simply unlawful.

A Co-opted Member spoke to state that she too was in agreement with Counsel’s opinion but that, more than that, she was in agreement with the current law on dispensations as it related to the applications for dispensations that were being discussed as it offered protection for the public at large and was thankful for absolute clarity now on this matter. The Co-opted Member continued by expressing her surprise at the fact that some Members who had addressed the meeting earlier in the debate were seemingly unaware that dispensations to speak on general housing matters were already available to elected Members for the duration of their term of office. She suggested that it may therefore be useful for the Chair, on behalf of the Committee, to make it clear to both elected Members and concerned residents that this was the case, particularly in light of the petition that had been received on this matter in mid-2019.

The Co-opted Member went on to suggest that the way in which applications for dispensation were currently dealt with should be reviewed periodically going forward to ensure that these were being dealt with as efficiently as possible.

The Chair responded by stating that she would be very happy to write, on the back of today’s meeting, to all interested parties, making it clear precisely what the policy on dispensations was. She also reminded Members that Dispensations Sub Committees were now set in advance with pre-appointed panels but that the most recent of these had had to be cancelled due to lack of business.

A Member spoke to state that he had been considering this matter more strategically and that, looking at this from a bigger picture, the rejection of Counsel’s opinion by the City Corporation could carry huge reputational risks given that the organisation promoted the quality of UK legal and professional services around the world. He added that he was very sympathetic to the suggestion that carparking and storage should now be added to the definition of general housing matters.

Another Member spoke to state that he had considered both the opinion of Counsel and the emails in response to this opinion very carefully. He concluded by stating that he was very supportive of the opinion of Counsel and was also very clear in terms of which way the decision of this Committee should now fall on this matter.

A Member observed that dispensations granted by the Town Clerk under delegated authority in relation to general housing matters were only available for speaking. Another Member interjected that voting on these matters was not permitted for those Members with an engaged DPI at present under section 618 of the Housing Act 1985. The original speaker added that she took Leading Counsel’s opinion very seriously and would be very unhappy if this Committee were to be seen to be doing anything unlawful.

An Alderman commented that he was very clear that the opinion provided by Leading Counsel was a correct statement on what was lawful and what was unlawful with regard to the granting of dispensations and that he was therefore very happy to accept the opinion in full. He was also, therefore, in accordance with the suggestions made by Counsel around how restrictions on voting might be lawfully relaxed as detailed at paragraph 4 of the accompanying report. He equally supported the suggestions from Officers as to how the existing delegations to the Town Clerk could be applied more broadly and include Members of both the Planning and Transportation and Licensing Committees. He concluded by stating that he could, however, see that the introduction of time limits on applications for dispensation might prove problematic.

The Deputy Chairman spoke to praise the clarity of advice provided by both the Comptroller and City Solicitor and now Leading Counsel on this matter. She reminded Members that the Chair had previously questioned what they might wish to do that was not currently permitted under the existing dispensations policy but had received nothing in response to this – she therefore found it difficult to conclude that there was any evidence of real impediment under the existing policy.

The Chair stated that many Members, herself included, were clearly accepting of Counsel’s advice as to the lawfulness of the existing policy. She added that the Member who had spoken earlier of the ‘bigger picture’ in terms of reputational risk for the organisation should it reject Counsel’s opinion had made an important, contextual, point that should also be borne in mind.

The Chair thanked Members for their contributions and asked that the Committee now move to a formal vote as to whether they were in favour of accepting the opinion of Leading Counsel on dispensations. 

Votes were cast as follows:    IN FAVOUR – 9 votes

                                                OPPOSED – 0 Votes

                                                There was 1 abstention.

The Chair went on to question whether, having accepted Counsel’s general opinion, the Committee were now also content to accept his suggestion as to how dispensations to vote might, lawfully, be relaxed, as detailed at paragraph 4 of the Comptroller and City Solicitor’s report. The Committee unanimously supported this suggestion but, from an administrative point of view, asked that those applying for dispensations to vote be asked to comment on points i) to iv) listed at paragraph 4 within their applications.

The Committee went on to discuss potential changes to the Town Clerk’s delegations and how the existing delegations could be applied more broadly to grant dispensations of up to four years to Members of the Planning and Transportation and Licensing Committees to speak in relation to the business of their own committees.

A Member commented that a distinction ought to be made between Planning and Transportation and Licensing here given that Members of all Wards were excluded from sitting on a Licensing Hearing for any premises within their own Ward. The Chair clarified that this wouldn’t preclude them from applying for a dispensation to speak as a member of the public at a hearing or for members of Planning and Transportation Committee to speak and/or vote as Committee Members.

In response to questions as to how it was judged that a resident Member might have an engaged DPI in relation to a certain premises, the Chair responded by stating that this centred around vicinity. She also reiterated her previous advice that, should any Member be in any doubt as to whether they had an engaged DPI in relation to any item of business then they should err on the side of caution and, in the first instance, seek the advice of the Comptroller and City Solicitor.

The Committee were also unanimously supportive of the suggestion at paragraph 8 of the report, that parking spaces and private storage spaces should now be added to the definition of general housing matters at paragraph 17(c) of the dispensations policy

The Committee proceeded to discuss time limits. An Alderman spoke to reiterate that he would personally be loath to tighten up on this. The Chair clarified that the key point that she wanted to get across here was that some issues were known to Members well in advance of being considered by a particular Committee meeting. The previously proposed expansion of the City of London School for Girls was a good example of this and, in such cases, Members with engaged DPIs should be applying for dispensations as soon as possible. The Chair went on to state that applications to be considered under urgency procedures should be avoided where possible and must only be progressed in this way for genuine reasons and not simply to compensate for any oversight. She added that any applications considered under urgency were decided upon by the Town Clerk in consultation with the Chair and Deputy Chairman of the Standards Committee which was arguably not as stringent a process as the application going before a Dispensations Sub Committee.

However, Members were reluctant to adopt a stricter approach and agreed that there was no need to tighten existing policy in terms of setting deadlines for applications for dispensations.

RESOLVED – That, having considered and noted Leading Counsel’s opinion, the Committee:

·         Agree to amend the Dispensation Policy in line with Leading Counsel’s proposal in paragraph 55 of the Opinion as set out in paragraph 4 of this report; and

·         Agree to further amend the Dispensation Policy in line with the matters set out in paragraphs 7 and 8 of this report