Your district councillor can ask the question – but can they get the answer?

Can you name your district councillor (you may have more than one)?

If you can’t, this is probably because you’ve never had to ask for their help with something for which the council they’re a member of (such as West Berkshire, Vale of White Horse, Oxfordshire, Swindon or Wiltshire) is responsible. This includes planning, social care, transport, council tax, libraries, waste, recycling and some aspects of education. If you have needed help, your district councillor (also known as ward member) may well have provided it. Much the same could be said of your MP.

So – what do they do and how can they help you?

The Local Government Association says that “a councillor’s primary role is to represent their ward or division and the people who live in it.” This is not, however, the only role they are expected to fulfil (I’ll return to this point later). The three others are community leadership, developing council policy and planning and regulation. These other three roles use phrases like “working collaboratively to improve services and quality of life for citizens,” “contributing to the development of policies and strategies,” and (specifically with regard to planning and regulation) “acting independently and not subject to the group or party whip.”

Each council has a constitution, the guiding document by which these and other relationships are determined. Inevitably, there are times when the views or interests of the members and the officers don’t co-incide – anyone who’s seen Yes, Minister will be familiar with this tension. There’s currently a case of this in West Berkshire.

Hungerford and Kintbury Ward has three councillors, one of whom is Claire Rowles. She has for some time been involved in what some believe is a case of a Community Infrastructure Levy (CIL) payment wrongly being charged on a development in her ward. The ins and outs of this issue are complex – see this post for a report on an extraordinary full council meeting on WBC at which this was discussed. The issue here, which she elevated to WBC’s Governance and Ethics Committee on 17 January, is whether she could receive documents from officers on the enforcement decisions in a similar case in Upper Lambourn. The officers had refused this request.

Claire Rowles challenged this decision. This was considered at a meeting of  WBC’s Governance and Ethics Committee on 17 January 2020 a video of which you can see here. This part starts at 35′ 50″.

The original objections to her claim are summarised in the Member Request for Information (MRI) arising from a Governance and Ethics Committee meeting on 25 November (see link below). The headings I’ve used don’t match any official division of ideas here or elsewhere but reflect what seem to be the main points at issue.

Confidential information

WBC’s Constitution covers this in Part 13, Codes and Protocols. Clauses 13.3.6 and 13.3.7 seem the most relevant. The first (“Member Access to Information”) includes the statement that “where Officers consider that information is of a confidential nature which should not be openly available to the public or press, this information will be supplied by Officers to Members on a private and confidential basis.” As Claire Rowles said in her statement to the committee, “denying me access when I am bound by confidentiality questions my integrity in keeping the information confidential.”

The agenda for this meeting only referred to clause 13.3.7 which specifies some reasons why such a request might be refused, rather than the more general (and preceding) 13.3.6.  None seem to apply here except on what is described as a “need to know” basis.

Need to know

The problem with this is that it’s dependent on the view of the Chief Executive or relevant director. The fact that Claire Rowles, a member of the Council, has asked the question shows that there is a need to know – members are not idiots and nor are they paid by the hour for their work. Officers have been discussing the case with her since February 2020 involving at least 53 emails which were, for whatever reason, disclosed in the response from WBC, so her need to know about this issue has clearly been accepted. What’s changed? 

As anyone who has ever investigated anything will testify, it’s also impossible to say what might be relevant. until you look into it The case in Kintbury evinced enough similar features for it to be relevant to enquire how Lambourn’s had been handled.

The justification of “need to know” was cited several times in the Member Request for Information (agenda item 8 which starts on p69) including in 5.18, 5.19, 5.20, 7.1, 7.3. and 7.5. These points did not accept this was something that the member could determine for themselves, or which had any objective truth, but rather that the officers know best and that the member is somehow being mischievous in asserting this – see the Local Government Association’s summary of these above and various points below.

Legal privilege

In the MRI (section 5.6), which summarised the original judgement by WBC, the refusal was also on the grounds that “material which is legally privileged, does not need to be disclosed.” Claire Rowles replied by saying that “legal privilege protects documentation between a solicitor and client from third-party inspection. Our in-house legal department (as the solicitor) has effectively advised the Council (as the client), of which I am a member.” (Her italics.)

A council meeting

The MRI (see para above) also referred in clause 5.5 to the fact that documents could be released if it is “in the possession or under the control of a principal council and contains material relating to any business to be transacted at a meeting of the council or a committee or sub-committee of the council.” The subsequent paragraph 5.6 suggests that this refers to just formal meetings but I feel sure that CIL has been discussed at one of these. It seems both illogical and alarming that only matters discussed in this way can be regarded as important. Investigation is often needed before a matter can be so seen

Previous extensive briefings

The MRI refers in clause 5.12 to a number of communications since “early 2020″ relating to the matter. Claire Rowles asserted that ”the extent of the email chain is due to officers not providing me with satisfactory responses. The emails also clearly show that none relate to enforcement options which are contained in the report. I have therefore clearly not been provided with this information, irrespective of what the MO deems to be “extensive briefings and explanations”. Questions still remain unanswered in this case.”

Similarities and differences

Claire Rowles said that there were many similarities between the two CIL cases. The Monitoring Officer insisted that there were also “quite significant differences” between them. The truth may lie in between. However, this cuts both ways. If there are “significant differences” in how two cases that were based on the same oversight were handled, then these might be worth looking at too. In one case, enforcement has happened; in the other, after a long delay, it has not. In one interest was charge; in the other it was not. Why?

A ward issue

The MRI also makes a number of references to the fact that one of the cases is not in her ward but adds nothing further as whether this precludes the officer form releasing the information. The fact that, as mentioned above, voluminous correspondence has already taken place in which both cases were referred to makes this objection irrelevant. If there were a condition in the WBC Constitution or national legislation which prevented a member from getting involved in another matter then this would presumably have been quoted in the response: as it wasn’t I presume that there isn’t and it’s therefore hard to see what the point of mentioning it was.

Precedent and confidentiality

The example of social-care disclosures is mentioned several times in the MRI, including that acceding to Councillor Rowles’ request “will set a precedent that similar documents, including those in social care matters, should also be made available to members.”  This is, as Councillor Rowles asserted, “complete nonsense” and as Councillor James Cole asserted “scaremongering.” The matter of social care involves a particular duty of care and confidentiality (which a member would in any case be expected to respect) and which is irrelevant to this planning matter.

In any case, if WBC is going to concern itself itself with such delicacies, it may want to reflect why the enforcement on the alleged debt in Kintbury involved posting notices outside the property specifying the amount claimed and discussing the issue with a neighbour. Not even the Inland Revenue would stoop to such tactics. Certainly a ward member would not.

Advocating

It was suggested in clause 5.20 of the MRI that “it is clear that you are seeking to advocate on behalf of “one or both if the residents. “To advocate” conveys a range of meanings from informal support or assistance to formal legal representation. I’m not sure which definition is intended here. If the former, then this is covered by Councillor Rowles’ duties under clause 2.3.4 of the WBC Constitution whereby elected members should “represent their communities and bring their views into the Council’s decision making process, thereby acting as the advocate of and for their communities.” If the latter, then there’s no question that she’s offering such formal legal representation. Were she to be doing so, she would have declared an interest.

This clause also went on to say that such “advocacy” (however defined) would put Councillor Rowles “in conflict with the Council’s position in this matter.” So what? Are officers only expected to release documents which paint the Council in a good light? The next sentence confirms this: “this is a further reason why it would not be appropriate to disclose this document to you.”

The only inference from this is that by doing so the Council’s position would be shown in a way other than which the Council has, for many years, sought to portray. This on its own seems to be an excellent reason for demanding its release.

Other views

Councillor James Cole (Con), though not a member of this committee, spoke in support of Claire Rowles’ point of view. “This is very important,” he said, “and goes to the root of the job we are paid to do. Members exist to represent residents, frame policies and act as a multi-level supervisory board. This sometimes involves a challenge to officers at times when we consider it necessary and this has proved to be one of them. At least in the Kintbury case, it would appear that are circumstances where WBC has not acted appropriately.”

He also referred to clause 5.11 of the MRI which states, in full, that “if a member’s motive for accessing the document is indirect, improper or ulterior, there is no obligation on the Council to provide access to that.” He said that, by referring to this, the Council is “imputing that Councillor Rowles is not to be trusted.”

I agree: why include this unless one of the three conditions applied? Her approach has clearly not been “indirect” – many emails, 53 at least, deals with that. “Ulterior” suggests an undisclosed interest which it’s clear is not the case. That leaves “improper”? Improper in what way? Perhaps the Monitoring Officer might wish to specify the exact charge.

Councillor Adrian Abbs (LD) said he was “very clear” that he supported Councillor Rowles’ point of view and dismissed the “insinuation” that members were not to be trusted. He also professed himself “shocked” at the number of emails disclosed and wonders if he needed to append a rider to all of his to officers stressing that they should remain confidential. He added that “to build the proper picture of what position I should be taking to assist a member of my ward I need to have all the information. Otherwise I’m driving blind.”

Councillor Rick Jones (Con) said that he felt “conflicted” about this and that he “understood and to a certain extent supported” Councillor Rowles’ view. He added that “there are going to be some pieces of information which are going to be very difficult for the Council to release.” The difficulty could be (a) the legal reasons for doing so or (b) the repetitional or other damage that could ensue to the Council; but he did not specify which. Both probably apply.

Councillor Thomas Marino (Con), the Chair, said that although he “somewhat sympathised” with Councillor Rowles’ view he couldn’t support her view and “didn’t feel that the officers had been deliberately obstructive.”

Councillor David Marsh (Green) told Penny Post afterwards that he “strongly supported” Claire Rowles’ view (and attempted to second the motion to vote but could not as he was only present virtually) and that she “was representing all councillors in this matter.”

Monitoring Officer Sarah Clarke in her closing remarks repeated many of the points she made in the MRI and which were discussed at the meeting. She said that there were “qualifications around what can be disclosed,” although these didn’t seem to convince most of the committee. She said that “officers have communicated at length,” but clearly not to the extent that provided the required information. She said there was “a difference between briefing members and disclosing reports,” although didn’t cite where exactly this is reflected in the constitution. She said that the documents would relate to “sensitive information about enforcement action,” although WBC’s such actions in Kintbury appear to have been anything other than sensitive.

The matter was then put to the vote. After the usual delay caused by the government prohibition on members who are virtually present not being able to propose, second or vote on a motion, Councillor Marino voted against, Councillor Jones abstained and all the others voted in favour. This means that the whole matter will, at some future date, be discussed at full council.

And finally…

I’m no expert in the way WBC conducts its business. However, a situation where what seems to be at least two ethically questionable decisions are allowed to rumble on for years and prompt a battle between a member from the ruling party and a senior officer about releasing documents which is then elevated through all the ranks to full council isn’t a great look.

The grounds advanced for refusal seem to be no more than a succession of half reasons and some – such as those relating to advocacy, privilege and social-care precedent – not even that. There was no overwhelming constitutional justification, no clear citing of a clause or regulation which unquestionably supported the refusal. On the contrary, WBC’s Constitution’s clause 13.3.6 seems very clear that Councillor Rowles should be able to access this information in order to do her job.

Sarah Clarke said that this was the first case she could remember which had been taken this far, the implication perhaps being that it was therefore unreasonable. As Rick Jones pointed out, this is also a particularly difficult and controversial issue. However, the statement doesn’t disprove the possibility of other similar refusals, on issues perhaps minor in themselves, which the member in question decided to accept. This matter is, however, of considerable importance. It not only involves life-changing invoices but also goes to the heart of what the relationship between a council’s officers, its members and its public should be. District councils have power over us and we need councillors like Claire Rowles and those who supported her to stand up and ask the awkward questions about how this is exercised.

Finally, the obvious question which has somehow got lost in all these legal niceties – what is WBC afraid will happen if this information is revealed? What aspects of the enforcement matters are so sensitive that they can’t be revealed to a council member after so much else has been? The attempt was, it seems, to draw a line around the deliberations of the officers. All that seems to have been drawn is attention, to the fact there is something that WBC does not wish to reveal. There may be other inferences but that’s the one that strikes me.

With that in mind, it seems that we need councillors with Claire Rowles’ courage more than ever. No one makes the right decision every time. It’s just possible – and there’s much evidence to suggest it – that the wrong one might have been made about CIL. I don’t want to see Sarah Clarke’s or anyone else’s head on public display. All most of us want is to know that WBC’s officers, who in general do excellent and under-praised jobs (particularly during the pandemic) are subject to scrutiny. Members are subject to scrutiny every four years at election time. I think this gives them the right to ask awkward questions of others in discharging these promises. If they can’t do this then, frankly, what’s the point?

Brian Quinn

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