Late last week Nicola put out a really helpful post on the Secretary of State's decision, to concede to judgment on his decision to grant permission for the redevelopment of the Westferry Printworks, just one day before Tower Hamlet's revised CIL Charging Schedule was due to take effect.
I don't often follow up a colleagues post so quickly on the same subject (unless they're revising the CIL Regs again*&) but over the weekend the national press got hold of this story and it looks like one which could run and run; with the mainstream press reporting that the Secretary of State was not just present at, but seated next to the applicant, at a political fundraiser, just months before the decision.
Nicola's post summarises the law on bias, apparent or otherwise, however the allegations levelled in the weekends press have raised questions over the integrity of the planning system, which go beyond a single decision. As I thought it would be a good time to dust off my old "Legal Adviser" and "Assistant to the Monitoring Officer" robes and revisit the rules on local government decision making.
The rest of this post then, is a bit of an experiment: "What if the current situation involved a planning committee member and not the Secretary of State?
Probity in Planning
The LGA re-issued it's guidance on Probity in Planning*&^ at a local level in December 2019. It starts by repeating that "Probity in planning is about ensuring that decisions on plan making and planning applications are undertaken, on behalf of communities, in a fair, impartial and transparent way."
Section 3 covers councillor conduct and refers on to s.27 of the Localism Act 2011. Under the heading of "integrity", councillors are reminded they must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.
s.27 is the duty on the LPA itself to promote and maintain high standards of conduct by members of the authority. s.34 makes it an offence to fail to comply section 30(1) (disclosing a pecuniary interest on taking office) or 31(2), (updating the meeting of a pecuniary interest not on the register) (3) (notifying the monitoring officer) or (7), or participate in a vote in contravention of section 31(4), or takes any steps in contravention of section 31(8). For much of this it would depend on whether the decision maker had a pecuniary interest which should have been declared. This is likely to be complicated enough even in sight of the whole facts (in my role as a planing lawyer on committee to "assist the Monitoring Officer" this was always one of the trickier pieces of advice to give).
Some interests are simple, such as Mr Starmers' in the £10 million site which turned out to be a donkey sanctuary in the green belt with little chance (certainly in the near future) of being released for housing. Had he, as a local politician, wanted to secure its release he would not have been permitted to be in the room, and would have had to employ an agent and keep the application and his dealings with the LPA at arms length.
Where this gets tricky is that the regulations*£" also include "sponsorship." "Any payment or provision of any other financial benefit (other than from the relevant authority) made or provided within the relevant period in respect of any expenses incurred by M in carrying out duties as a member, or towards the election expenses of M."
The regulations are clearly aimed at the smaller world of the local politician than the national scale politics of a Secretary of State. (Allbeit; having recently read the Casual Vacancy, this is no comment on the lack of important events for a Parish Councillor to attend). In any event we do not appear to be hearing of an unlawful contribution to the Secretary's expenses.
What the Guardian appear to have unearthed is a chance conversation at a dinner which Mr Jenrick would have attended in any event due to his role within the Conservative party but where the applicant has been seated at his table. Without evidence to the contrary it is assumed that a general contribution to party funds was made, not a direct one to Mr Jenrick, by the applicant.
At a local level I have seen plenty of applications made by someone with an involvement in party politics but if everyone who knew them or had met them did not take part in the committee the committee would be rendered either inquorate or partisan. In those cases "voluntary" declarations are made and the matter progresses. In much the same way having failed to find a requirement to declare anything in this case on the tests for a local politician it is likely that a voluntary declaration only would have been made in accordance with the local code; which having done so the declarant would be advised to consider whether that declaration could give the appearance of bias, and whilst they do not have to withdraw, should they?*"$
It is important to remember that politicians at a national level are governed by different rules. They are subject to their own code of conduct and have a greater degree of political privilege than is afforded to those working at a local level but ultimately come under the common law offence of Misconduct in a Public office dating back to the 11th century and last seen fully used in the expenses scandal.
For my own political independence I will not attempt to assess the Secretary's actions against that code; that feels a bit too personal when all of the facts are still unknown. However having assessed what we do know against the local councillors code (which is issued in his name) it seems unlikely that there is (a straight forward, at least) offence which would have applied had he been on a planning committee and not been acting as the Secretary of State.
*& - one for next week, hopefully.
*&^ - the previous version was my "bible" as I acted as Legal Adviser to the various planning committees I worked with.
*£" - Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012/1464
*"$ - much like the committee member who played the stock market and happened to have a few Tesco shares in his portfolio. In the "interests of being completely open" he would declare these - despite his holding being well below the declarable limit. In each case, despite there being no requirement to make the declaration in the first place, one he had, my advice was always to withdraw from applications made by either Tesco or any other substantial supermarket on which the committee had to make a decision. This was no longer a standards question but an question around "appearance of bias". f
Any payment or provision of any other financial benefit (other than from the relevant authority) made or provided within the relevant period in respect of any expenses incurred by M in carrying out duties as a member, or towards the election expenses of M.