This is the text of an email that I sent to all members of the Court of Common Council on 27 January:
During the last 15 months, the Standards Committee has done a 170 degree turn on its dispensations policy, ending with the decision at its meeting last Friday to abandon the restriction on granting dispensations to vote “only in exceptional circumstances”, and to require democracy to be taken into account when granting such dispensations. This is nearly the outcome I had envisaged when I proposed a motion in Court in December 2018 to appoint a working party drawn from outside the Standards Committee to consider the reform of our dispensations policy. I say "170 degree turn” and “nearly” because the new policy is procedurally inoperable. I suggest below short and long term solutions to this unsatisfactory situation. I then set out the timeline that led to it. Finally, as this dreary dispensations soap opera comes to an end, I comment on the last episode - "a matter of opinion”.
SHORT TERM SOLUTION
Since it isn’t realistic to expect the Corporation to reform itself to the fundamental extent needed, the current governance review is likely to be a case of rearranging the deckchairs on the Titanic. But a short term improvement could still be achieved by chucking overboard a particular broken deckchair called the Standards Committee. For several years there has been no legal requirement for a local authority to have one. I sense that a number of members would consider the abolition of our Standards Committee to be a positive development.
LONG TERM SOLUTION
In December 2018, the City Corporation backed down on the proposed expansion of its own City of London School for Girls, which would have harmed the amenity of its own residents and vandalised its own architectural heritage. A month later it has finally backed down in principle on trying to prevent its resident councillors from participating in decisions that affect their constituents, although it has done so in a muddled and unsatisfactory way. Both of these defeats for the Corporation have been achieved through strong resident action. The election of more resident councillors in March 2021 who are willing to represent their electors against the Corporation, rather than the other way round, should further contain the Corporation’s bias against residents. But if resident councillors remain only 20% of the total, instead of 100% as in any other local authority, that bias will remain. The business voting system isn’t democratic, literally: demos= the people, kratia = government. The ultimate solution is to abolish this system and to disaggregate the Corporation’s disparate and conflicting functions.
Oct - Nov 2018: The Standards Committee promoted a new dispensations policy that effectively prevented resident councillors from speaking and voting on matters affecting their constituents.
Dec 2018: In the face of this vigilantism, and following revelations about the conduct of several members of the Standards Committee in a case that scandalised the public because of its unfairness, the Court of Common Council compelled the Standards Committee to grant dispensations to speak. This was done after the Policy Chair hijacked my original motion, and left untouched the policy of granting dispensations to vote “only in exceptional circumstances”.
Jan 2019: The fallacy of omitting half the necessary reform of the dispensations policy became apparent only a month later. The Standards Committee became an object of ridicule - both inside and outside the Court - for deciding that a resident councillor had a "pecuniary interest” in a tree owned by a local authority, and for its refusal to grant her a dispensation to vote on whether the tree should be felled, although its felling would affect scores of her constituents as much as - or more than - herself.
Mar - Apr 2019: The involuntary departure of several members of the Standards Committee took place. Some of the members who replaced them began to be dissenting voices in the meetings that followed.
Apr 2019: The Court received a petition signed by 1,100 City residents, declaring that they had no confidence in the Corporation's standards policy and practice. They called for the Court to make immediate and fundamental reforms, so that their elected representatives would be free to speak and vote on their behalf, including on matters in which those representatives had a declared interest (unless the matter uniquely or especially affected them). This would give City residents the same level of representation as residents of other local authorities. The Court referred the petition to the Standards Committee, which ignored it. In the six meetings of this committee and its sub-committees that took place during the months that followed, the petition - and a couple of similar resolutions passed by the City’s two largest residential wards - were barely mentioned.
July 2019: This led to a satirical proposal being made to the Court that it should abolish its residential electorate as a quick and easy way of solving the problems with the standards regime.
June - Nov 2019: Some resident councillors made identical applications for “general” (but not unlimited) dispensations to speak and vote that reflected precisely what the petition called for. Those applications were considered in five meetings of the Standards Committee and its Dispensations Sub-Committee. In every meeting the applications were not properly addressed, and were often mischaracterised as "blanket” dispensations. By the end of the year, still no decision had been taken on them. It had however been proved that the current policy of granting dispensations mainly on a case by case basis - which the “general” dispensations would have rendered unnecessary - was procedurally inoperable, because members were usually aware of the agenda for a particular committee meeting only when it was published - usually a week in advance - and a Dispensations Sub-Committee could not be convened within that timescale. Dispensations could be granted under urgency, but that would entail the democratic deficit of the decision on whether an elected councillor could speak and vote being made by an unelected official (in consultation with the Chair and Deputy Chair of the Standards Committee).
Oct 2019: Responding to pressure from residents, the Standards Committee decided to ask the Policy & Resources Committee and certain other committees to lobby for the abolition of section 618 of the Housing Act 1985 - an obscure provision that applies only to the City, and prevents resident councillors from voting on certain housing matters. It is not subject to the dispensations regime introduced by the Localism Act 2011.
A MATTER OF OPINION
Jan 2020: The Standards Committee adopted a proposal, originally made in a Counsel’s opinion obtained in December 2019, to abandon the restriction on granting dispensations to vote “only in exceptional circumstances”, and to require certain factors to be taken into account when granting such dispensations. Those factors include public confidence in the Corporation, democratic debate and accountability. This suggestion must have arisen from criticisms made on behalf of residents of the Corporation’s existing dispensations policy. They were also the criticisms that underpinned the applications for the “general” dispensations. The seismic shift in policy represented by the adoption of this proposal should go a fair way towards meeting the residents’ expectations that they will have the same level of representation as residents of other local authorities.
When the Standards Committee considered the applications for the “general” dispensations, however, now for the sixth time, it refused to grant them, because the opinion stated that they were “unlawful”. I challenged both the original opinion and a second opinion issued in January 2020 in detail on this point. Counsel stated in his second opinion that “it must be correct" that “members should not automatically accept an opinion by Queen's Counsel as a definitive statement of the law”, and that "the correctness of the conclusions” in his opinion “may be tested”. Unfortunately, the Standards Committee ignored his advice on this point, and uncritically accepted it on the “general” dispensations, without referring to any of my comments.
The procedural inoperability of the case by case approach to granting dispensations under the new policy - a problem that the "general” dispensations would have solved - has been known for several months, and was raised in my comments, but ignored. In practice, most applications will probably need to be dealt with under urgency, with the democratic deficit that entails. But the Town Clerk is required by the new policy to take account of factors like democracy, and the refusal of a dispensation for a resident councillor to speak and vote on a matter affecting their constituents no less than themselves could become a focus of resident action.
There is one point on which I agree entirely with Counsel. In his original opinion, he expressed a view on when a “pecuniary interest” was engaged in a matter. His view is precisely what I, and the defence QC, had advocated in the case in which I represented another councillor in 2018, and which scandalised the public because of its handling by the Standards Committee. It would be interesting to know whether the Corporation will adopt this view in future cases, or whether it will reject Counsel’s advice on this point while accepting it on the “general” dispensations.
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