Regina V NYCC ex Parte Richardson Orme by slappypappy121

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									NORTH YORKSHIRE COUNTY COUNCIL STANDARDS COMMITTEE 2 February 2004 R –v- North Yorkshire County Council ex parte Richardson and Orme

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PURPOSE OF REPORT The purpose of this report is to advise Members about the case which concerns this authority and is now the leading case and to consider its implications for the provision of guidance to Members on the Code of Conduct.

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BACKGROUND Councillor Richardson and Mrs Wendy Orme both residents of Littlethorpe parish challenged the County Council by way of judicial review of the decision of the Planning Committee in June 2002 to grant planning permission for an extension of quarrying at Ripon City Quarry. The application was considered by Mr Justice Richards in the High Court on 15th April 2003. The claimants appealed against his decision. THE FACTS OF THE CASE At its meeting in June 2002, this authority's Planning Committee considered an application by Brown and Potter Limited for the extension of quarrying of sand and gravel at Ripon City Quarry, a site falling within the boundary of three parishes, including the parish of Littlethorpe. Councillor Paul Richardson, a member of this authority, is a resident of Littlehorpe and represents the electoral division including Littlethorpe. He is not a member of the Planning Committee, and wasn't a member a the relevant time. However, he objected to the new developed both in his capacity as the elected representative of Littlethorpe and in a personal capacity. His house is approximately 250 metres from the nearest point of the proposed extraction. Prior to the meeting Councillor Richardson was advised by officers of the County Council including the Chief Executive, the Monitoring Officer and the Principal Planning Solicitor, that he had a personal and prejudicial interest under the Code of Conduct and was therefore unable to take part in the meeting in any capacity, even though he was not a member of the Committee. Councillor Richardson attended the meeting and read the following statement The application before you, concerning Ripon City Quarry, lies partly within my Division. I also live within and represent Littlethorpe Community, and as such will be affected by the Quarry, should the application be approved. I have been advised by the officers of the County Council that as such, I can neither speak nor be present in my capacity as Councillor or as a citizen, despite the fact that I have no decision making role on the Planning Committee. The Rights of Representation, by their chosen elected Member, has been denied to the Littlethorpe Community by Government legislation and my basic Human Right of Freedom of Speech, as a citizen has also been denied. I will leave the room as instructed, but give formal notice that I will further fight for the rights of the individual and unrepresented Communities.

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The minutes of the meeting record that the meeting was addressed by the Head of Minerals and Waste Planning, who presented the planning officer's report. Councillor Galloway (District Councillor - who was given special dispensation to address the meeting), Mr Roly Curtis (the chairman of Littlethorpe Parish Council), Mrs Orme and a representative of the developer. The Planning Committee, by a majority of 5:4 resolved that subject to the completion of a satisfactory agreement and conditions, planning permission be granted. Councillor Richardson and Mrs Wendy Orme made an application to review that decision. The judicial review challenge was on the basis of two points firstly that the Council had not complied with certain regulations, this part of the challenge is restricted to planning issues. The second basis for challenge rests upon Councillor Richardson's contention that he was unlawfully excluded from the meeting of the Planning Committee in breach of the Code of Conduct. The Secretary of State was also a respondent to this part of the challenge. SOURCE USED FOR INTERPRETATION OF THE CODE. The Court of Appeal considered the meaning of the Code of Conduct in several respects in determining whether Councillor Richardson was wrongly 'excluded'. In considering the meaning of the Code, the Court did not have regard to guidance provided by the Standards Board for England or to any determinations of the Adjudication Panel, but rather considered the following documents:

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Local Government Act 2000 Part III The Conduct of Local Authority Business, a report prepared in 1986 by a committee chaired by Mr David Widdecombe QC (the Widdecombe report) and The 1997 report, Standards of Conduct in Local Government in England, Scotland and Wales by the Committee on Standards in Public Life chaired by Lord Nolan (the Nolan Report). Consultation responses to the Local Government Association which were returned on the consultation paper 'A model Code of Conduct for Members'.

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These documents were used in the preparation of the Code of Conduct and were therefore used to consider the intention of the regulations. POINTS CONSIDERED BY THE CASE The case sought to answer four key questions in relation to the Code: (i) Which “member(s)”, assuming that they have a prejudicial interest in a matter, are required by paragraph 12(1) of the Code to “withdraw from the room or chamber where a meeting is being held when … the matter is being considered at that meeting”? Is this requirement imposed on all members of the authority or only on those who are members of the committee holding the relevant meeting?

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Whatever be the answer to question (i), is a member, paragraph 12 notwithstanding, entitled to attend such a meeting in his personal capacity as opposed to his representative capacity? Was Mr Richardson properly to be regarded as having a “prejudicial interest” in the matter of this planning application? Did Mr Richardson indicate that, even were he not permitted to attend the June meeting in his representative capacity, he wished to attend in his personal capacity?

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ISSUE (i) - THE MEANING OF MEMBER IN PARAGRAPH 12 (1) OF THE CODE Member in paragraph 12(1) means a Member of the Council not just a Member of the relevant committee. 'If a member attends a meeting of a committee of which he is a member, he is conducting the business of the authority. If he attends a meeting of a committee of which he is not a member, he is conducting the business of the office to which he has been elected. He is there as an elected member performing that office. … Mr Richardson's wish to attend the meeting as a councillor representing his electorate and giving the community a representative 'voice' at the meeting was at the heart of his objection to withdrawing from the meeting.'

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The judgement referred to the Widdecombe report 'At present there is no statutory requirement for someone who has declared an interest at a meeting to withdraw from the room… We believe that this is wrong. By staying in the room, even though he or she may not speak or vote, a councillor may still influence the decision or might gather information which would help in the furtherance of his or her interest .. We propose that there should be a statutory requirement in all such instances to withdraw. Withdrawal should be from the room, not just to the space set aside for the public. There should be no option to invite councillors to stay, which could place their colleagues in an invidious position.'

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The judgment also referred to the Nolan report 'The issues are particularly complex in local government. Local authorities are multipurpose bodies, involved in many different activities within a restricted geographical area. They are run by councillors elected on a ward basis, whose task is to represent the interests of local people. Councillors are themselves local people, who are likely to have been actively involved in the local a community before election, both in commercial and non-commercial activities, and who may be even more involved after election. Potential conflicts of interests are likely to occur frequently, and the public interest requires that a sensible balance should be struck between avoiding impropriety, and enabling councillors to fulfil the role for which they were elected.'

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The judgement goes on 'The Code reflects the outcome of a complex balancing exercise after extensive consultation and deliberation. There has been a sufficiently structured and articulated approach. The Secretary of State has placed particular weight, as he was entitled to do, on the need to retain public trust and confidence in the operation of the system. This is expressed extremely clearly in the consultation paper: 'The retention of public confidence is not so much a desirable goal, as a fundamental necessity. Without the public's trust, an authority would quickly become discredited. So Ministers see the requirements of public probity as paramount. The system we design must, first and foremost, meet those requirements.''

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The judgment says in conclusion on this point… '… the narrower construction of paragraph 12 … would allow more scope for democratic representation within local government… But it would be at the expense of public trust and confidence in the local democratic process. The government in the Model Code decided upon has chosen not to pay that price. At the end of the day it is as simple as that.'

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Members have expressed to me the view that the Code prevents them from properly representing their communities and this is what they are elected to do. The judgment examined not only whether that was the intention of the Code but why the Code has that intention. The judgment concluded that that was the considered intention of the code and that the reason for this is that the need for public confidence should be given greater priority than the need for community representation. IS A MEMBER ENTITLED TO REMAIN AT A MEETING IN HIS PERSONAL CAPACITY? Although the Court of Appeal was clear that the judgment of Mr Justice Richards, in the High Court, was an excellent judgment with a thorough review of the issues, and has throughout quoted the judgment, on this point the Court of Appeal disagreed with Mr Justice Richards and concluded: 'A member of the authority attending a council meeting cannot in my judgment, simply by declaring that he attend in his private capacity, thereby divest himself of his official capacity as a councillor. He is still to be regarded as conducting the business of his office. Only by resigning can he she that role. To conclude otherwise would dive a coach and horses through paragraph 12. Realistically it would be rendered wholly ineffective. The mischief which paragraph 12 is designed to avoid is manifestly the same whether the councillor is attending the meeting in his public or purportedly private capacity. '

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This advice is contrary to that which I had been given informally by officers at the Standards Board, who had stated that if a member was eg a planning applicant or a licensing applicant, natural justice demanded that they should have the same right as a Member of the public to be heard, although they should leave before deliberation. The Court of Appeal did not specifically consider this type of application, although Councillor Richardson was an objector protecting his own private property. However a planning permission and a licence have been considered to be issues which affect an individual's human rights. Article 6 therefore demands that the individual has the right to be heard. The case however is clear that in no circumstances can a member attend a committee meeting where he has a private interest. A determination hearing is a committee meeting, however a member has the right to attend and speak. The judgment did not specifically consider these issues. DID MR RICHARDSON HAVE A PREJUDICIAL INTEREST? The judgment states that 'the initial principal judgment on the question is for the individual councillor himself. There comes a point at which it would clearly be irrational and therefore unlawful for the councillor to conclude that he does not have a personal interest under paragraph 8(1) or, as the case may be a prejudicial interest under paragraph 10(1). The judgment refers to the decision of the High Court 'I reject (the) submission that a knowledgeable member of the public would reasonably have regarded him as simply putting forward the views of the people he represented, or making a contribution to the debate based on this perception of the public interest, rather than being influenced by the potential impact of the development on his own home. However conscientious a councillor might be in his

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representative role and his concern to protect the public interest, the personal interest was a highly material additional consideration.' 8.3 The Court of Appeal considered what the public view would be if Councillor Richardson was a member of the planning committee and was charged with considering the matter, would a member of the public think that it would be likely to affect his judgment of the public interest. DID MR RICHARDSON INDICATE THAT HE WANTED TO ATTEND THE MEETING IN HIS PRIVATE CAPACITY? This point is not relevant, given that it has been determined that even if he had indicated, he could not have attended in his private capacity. The judgment does however go on to explore the correspondence that Cllr Richards had with Jeremy Walker. The Court of Appeal judgment made the point that 'The very points which Mr Richardson indicated in later correspondence that he wished to make at the meeting illustrate the difficulty - realistically, I would suggest, the impossibility - of distinguishing his supposedly private capacity from his public one. On 19th June he wrote to the Council's Chief Executive' As you are now well aware I was forbidden to speak at the ..Planning Meeting.. Had I been allowed my freedom of speech I had intended to give emphasis on two points. One was the impact on the environment and the lack of a cohesive overall plan of restoration for the whole valley. The second was the impact of the probable increase in flooding; on the flood plain; the villages and towns along the River Ure Corridor and the safety of the workforce .. 10.0 10.1 THE IMPLICATIONS OF THE JUDGMENT This case has decided a number of points about the meaning and interpretation of the Code. The primary point however is that a Councillor cannot themselves decide when the are acting in the public interest and when in a private interest. If they have a private interest that is overriding and they must withdraw. The fact that Members, or indeed their communities, may believe that their duty is to represent their communities is of paramount importance, is not relevant. The Code of Conduct has been drafted on the basis that 'public confidence' is the primary objective. This decision was taken by parliament at the time the regulations were prepared, and those drafting the code were entitled to give that priority to the apparently competing objectives. Members of this authority who disagree with parliament must raise those objections in the course of a review of the Code and through political channels. In the meantime Members who breach the Code, knowingly run a high risk of suspension.

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RECOMMENDATIONS Members are asked to note this summary of the case and to consider whether this information should be more widely distributed within the County Council and in what form.

CATHERINE H WHITEHEAD Monitoring Officer Background documents: Reports of decisions contained on the Adjudication Panel for England’s website


								
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