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Division(s): N/A

ITEM ST7

STANDARDS COMMITTEE – 1 DECEMBER 2006

MEMBERS BRIEFING: DECLARATIONS OF INTEREST

Report by County Solicitor & Monitoring Officer

Introduction

  1. A number of Members have raised with the Monitoring Officer and Deputy Monitoring Officer concerns and queries with regards to whether particular matters require then to declaration an interest and indeed whether or not these amount to prejudicial interests.

  2. The Standards Committee have requested the Monitoring Officer to write to all Members and Co-Opted Members of the Council to remind them of the requirements as set out in the Code of Conduct.

  3. The Members’ Code of Conduct as set out in Section DD of the Constitution provides full details of the requirements relating to the declaration of both personal and prejudicial interests and the action that Members are required to take. Each situation will need to be judged by the Member on its merits but it is a personal judgement a Member needs to make for which they can be held accountable. If there is any case of doubt then the advice of the Monitoring Officer or Deputy Monitoring Officer should be sought. This briefing has been provided simply as a reminder of the main issues for Members.

    4. Personal Interest

  4. A personal interest in a matter is one which can be reasonably regarded as affecting the individual, family or friend more than other people in the area. If a Member has a personal interest, that Member can stay and take part and vote in the meeting.

  5. A Member may have a personal interest if it affects either "themselves, partner, relative or a friend, their employer or the employer of their partner, relative or friend, any corporate body in which they, their partner, relatives and friends hold shares with a nominal value of more than £5,000 or of which they are a Director. Any firm in which they, their relatives or friends are Partners.

  6. A Councillor must also declare if discussions concern one of the following organisations in which they, relatives or friends, hold a position of control or management:

    • A body where the Council or they are a representative or nominee of the Authority

    • A body exercising public functions

    • A company industrial or provident society, charity or body directed to charitable purposes

    • A body which seeks to influence public opinion or policy

    • A Trade Union or professional association

  1. The responsibility for making a declaration rests with the individual Councillor. If the Member believes that they have a personal interest then this should be declared when the item is raised on an agenda under declarations of interest. A reminder of the requirements is set out on the inside cover of all agendas to formal County Council meetings or alternatively if a matter is not declared then it should be raised as soon as the Member becomes aware of the interest during the course of a meeting. They should also say if anything being discussed relates to anything they are required to declare in the Register of Members’ Interests.

  2. The whole point of the declarations of interest is that any members of the public observing the meeting will be appraised of the interest without the necessity of checking whether the matter has been declared in the Register of Interests, and of course it is also recorded in the minutes of the meeting.

  3. If a Councillor has a personal interest then that Councillor can still participate in the discussion and vote. The intention behind this element of the Code is to ensure openness and transparency and not to restrict participation and debate

    4. Prejudicial Interest

  4. The test for determining whether a Councillor has a prejudicial interest is if a member of the public who knows all the relevant facts would view the Councillor’s personal interest in the issue being discussed to be so great that it likely to prejudice the Councillor’s judgement of the public interest. If on that basis the matter is deemed to be prejudicial then the Councillor must leave the room entirely and play no part in the debate and must not seek to influence any decisions made.

  5. In some circumstances a member will also be regarded as having a personal and prejudicial interest if they are involved in consideration of a matter at an overview and scrutiny committee if that relates to a decision made by another of the Council’s committees or sub-committees of which they are also a member.

  6. Councillors may regard themselves as not having a prejudicial interest in a matter (and consequently, in some situations) not have to withdraw from the meeting if that matter relates to, amongst other things:

    • Another relevant Authority of which they are a Member

    • Another Public Authority in which they hold a position of general control or management

    • A body to which they have been appointed or nominated by the Authority as its representative

    • The functions of the authority in respect of school meals, transport and travelling expenses, where the member is a guardian or parent of a child in full time education, unless it relates particularly to the school which the child attends

    • the functions of the authority in respect of an allowance or payment made under sections 173 to 176 of the Local Government Act 1972 or section 18 of the Local Government and Housing Act 1989.

  1. In relation to an overview and scrutiny committee or a joint or area committee, a member with a prejudicial interest may, unless that interest is of a financial nature or involves a decision or action taken by another of the Council’s committees or sub-committees of which they are also a member, then they are able to participate fully.

  2. Each situation should always be judged on its merits and advice sought if there are any doubts with regarding the matter.

  3. Failure to declare either a personal interest or personal and prejudicial interest would be a breach of the Code and the Member would be susceptible to sanctions being imposed if the breach is proven.

  4. The current requirement is that any person can refer a suspected breach of the Code to the Standards Board for investigation or referral to the Standards Committee.

    5. Declarations of Interest: Frequently Asked Questions

  5. The following briefing is provided in order to assist Members in understanding the application of the Code of Conduct requirements on Declarations of Interest with regards to specific examples.

  6. Members must use their personal judgement when deciding if they have a personal interest or personal and prejudicial interest. Where there is doubt they should ask the Monitoring Officer or Deputy Monitoring Officer for advice. The general rule is if in doubt the safest option is to declare.

    7. What Is A Personal Interest?

  7. A personal interest in a matter is one that can be reasonably regarded as affecting the individual, family or friend more than other people in the area. If a Councillor has a personal interest, that Councillor can stay and take part and vote in the meeting.

  8. The full requirements with regards to registering and declaring personal interests are set out in the Members’ Code of Conduct, Section DD of the Constitution.

    9. What Is A Prejudicial Interest?

  9. Under the Code of Conduct, the test for determining whether a Councillor has a prejudicial interest is if a member of the public, who knows all the relevant facts, would view the Councillor’s personal interests in the issue being discussed to be so great that it is likely to prejudice that Councillor’s judgement of the public interest. If that is the case, the Member must not speak at the meeting and immediately withdraw when the matter is under discussion. That means leaving the room entirely and a Member must not seek to influence the decision in any way.

    10. At what stage in the meeting should I disclose a personal interest?

  10. A Member should declare the existence and nature of a personal interest:

    • At the beginning of the meeting when the item ‘Declaration of Interest’ comes up

    • At the commencement of consideration of the issue

    • As soon as it becomes apparent that there is an interest

If I have a personal and prejudicial interest do I need to declare this before I withdraw from the room?

  1. Yes. All prejudicial interests are also personal interests. A declaration should be made of the existence of the interest and a short explanation of the nature of it interest so that it can be minuted properly prior to withdrawal.

    2. I have a mobile phone and the matter under discussion relates to the installation of a mobile phone mast in my area. Do I have a prejudicial interest?

  2. Although there is a clear link between owning a mobile phone and the installation of mobile phone masts, nevertheless, this is not a personal interest because it does not affect the Councillor more than other people in the area. As it is not a personal interest it, therefore, cannot become a prejudicial interest. The issue with regards to the actual site of the mast being of relevance depends on how close it is to the Member’s property. If the mast is a significant distance away then this does not apply but if the installation is very close to the Member’s property then that might be a personal interest because it does affect the Councillor more than other people in the area and it might be regarded as prejudicial depending on the circumstances because its close proximity and perhaps opposition might be seen as prejudicial to the Councillor’s position.

  3. The more that a Member shares an interest with a large number of people it is less likely that a prejudicial interest will exist.

    4. The Council are going to discuss a controlled parking zone, which includes my ward. I have a car and, therefore, do I have a personal and prejudicial interest?

  4. Again, the issue is whether or not there is a personal interest ie. does this affect the Councillor more than other people in the area? In view of the high percentage of car owners it is doubtful whether it is a personal interest. If it is not a personal interest it cannot be prejudicial. Whilst the decision taken will directly impact on the Councillor him or herself that is equally the case for all other people in the area. It might be different if the issue related only to the Member’s Street.

  5. The more that a Member shares an interest with a large number of people it is less likely that a prejudicial interest will exist.

    6. My child regularly uses the Council’s school bus service. A decision is about to be taken on changes to this bus service – can I speak at the meeting?

  6. You will have a personal interest by way of your relationship with your children and, therefore, a declaration of personal interest should be made. It will not be a prejudicial unless it relates to the school which the child attends as this is a specific exemption within the Code.

    7. The Council are considering an application for planning permission for mineral extraction, which is close to my home. Can I speak against this horrendous proposal? I am a member of a protest group.

  7. Your house is a registerable interest and much will depend on the actual proximity of your home to this development and the nature of your involvement in the protest group. Much depends on the circumstances, but it is likely to be a personal interest and may well be a prejudicial interest. It will depend on the precise nature and circumstances of the case. Factors that will need to be taken into account would be how close is the quarry, direct adverse impact on your home as opposed to the general area; whether previous comments have been made with regards to this proposal by you in public; whether you would suffer significant financial detriment or financial advantage.

  8. In all the circumstances you should seek the advice of the Monitoring Officer or Deputy Monitoring Officer.

    9. Like many other Councillors, I am also a Member of a District Council and have declared this in the Register of Interests. Everyone knows that I am a Member of the District Council, why do I have to declare this again at the meeting itself?

  9. Whilst there is a requirement for all District Councillors to register that interest, nevertheless, members of the public are not expected to scrutinise the register before they attend a public meeting. Interests included in the Register have also to be declared at the meeting itself. In circumstances where there are a large number of Members all having the same interest, it is possible for Members simply to acknowledge their personal interest by raising hands and for a note to be taken of this.

    10. I am a Member of the Local Government Pension Scheme by virtue of my membership of the Council. Is this a personal and prejudicial interest as I am directly affected by decisions taken by the Council?

  10. It is a personal interest that is required to be registered and, therefore, needs to be declared but it is not prejudicial because it is an allowance or payment made by the Council under its scheme of Members’ Allowances and is therefore a specific exemption within the Code.

    11. I am the Local Authority’s representative on an external body. The Council are about to decide an issue that adversely affects that body and I am the one person that knows most of the details about this issue but I don’t think I can speak?

  11. You have a personal interest by virtue of your appointment to this body by the Local Authority. Your close involvement to the external body might, therefore, be regarded as being potentially prejudicial but you may regard yourself as not having a prejudicial interest because it is a body to which you have been appointed by the Council as its representative. There is an explicit exemption to the Code which covers this situation. Care still needs to be required given the wording includes the term "may regard" there is an indication that there will be some circumstances where it will remain inappropriate for a Member to take advantage of this exemption. Those circumstances will generally exist where there are additional factors beyond the mere fact that an interest falls into the above exemption. Therefore, advice may need to be taken from the Monitoring Officer.

PETER CLARK
County Solicitor & Monitoring Officer

Background Papers: Nil

Contact Officer: Peter Clark, County Solicitor & Monitoring Officer Tel: (01865) 815363

November 2006

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