24 January 2017

The Public Interest: new council members must not be co-opted in secret




Introduction

This article concerns future co-options of new members to New Mills Town Council.

Until a new ‘Co-options Policy’ document was presented without prior notice to NMTC’s December 2016 meeting, this council has always selected all new co-opted members in the open.

However, a section of the December document introduces the risk New Mills town council could attempt to co-opt new council members ‘in secret’.

The public interest requires all such council co-option decisions to be made in the open.


Background Explainer

For newer HPT readers, the following is a summary of the law of council meetings and the status of co-option decisions in those meetings:

Format of council meetings: Part One and Part Two

The law requires that meetings of councils must be open to the public.*

There is a tiny number of types of council business where the public may be excluded during the meeting.

Council meetings are therefore divided into two parts.  There is a Part One, where the public is present.  The vast majority of council business in meetings is transacted in Part One.

Sometimes there is a Part Two of the meeting.  This is the section of the meeting from which the public is excluded.

If a council wants to exclude the public from any agenda item in a council meeting then it must pass (in public) a resolution giving a legally valid reason for it proposing to exclude the public from the meeting.

That resolution must specify the agenda item(s) from which the council proposes to exclude the public.

Becoming a member of a town or parish council: election and co-option

Local elections to councils happen every four years.  When a vacancy on a council arises between elections, the vacancy must be advertised in the council area.  This is to elect a replacement council member for the ward that has the vacancy.

If the council concerned is a town or parish council (the local government tier below Borough Council) then the advertisement specifies that, if there are not at least ten local electors who require a by-election to be held, the council may itself co-opt a new member to fill the vacancy.  This is called a ‘casual vacancy’.

Co-option is the cheaper method of filling a casual vacancy but is not appropriate in every case.


The issue

Proposed new ‘Co-options Policy’ of New Mills Town Council – December 2016 meeting

A new ‘Co-option Policy’ document was presented to the 12 December 2016 New Mills Town Council meeting by Cllr Tony Ashton.

No advance sight of this proposed policy change was given to the councillors before the meeting at which they were asked to vote on it.  That itself would be unlawful if it were allowed to stand, but is not the subject of this article.

The serious problem created by this December document is that, regarding future co-options of new members to the council, it states:

“The council may only discuss each candidate’s suitability for the role when he/she and members of the public are not present, i.e. as a part 2 item.” **

Intuitively, most people will know that cannot be right.  And all people interested in transparency in public life will know that, on this subject, any such attempted secrecy is manifestly not right.

All local councils are public bodies.  Council co-options are to a public body.  A public body’s meetings are held in public.

Any person applying for co-option knows full well that they are applying for a public position on a public body.  They are therefore expecting public scrutiny.

If they were not prepared to accept public scrutiny then they would not be interested in standing for public office, i.e. being a local councillor.


The December 2016 ‘Co-options Policy’ document

Regarding co-option of new members to a council, even the document itself recognises the importance of transparency in co-options to a local council.  Its second sentence is:

“It is especially important that the (co-option) arrangements are seen as open and fair.”

But in direct contradiction to this, the document then states:

“The council may only discuss each candidate’s suitability for the role when he/she and members of the public are not present, i.e. as a part 2 item.” **

Given that the role referred to is co-option to a public body, this is a bizarre claim.  What is the authority for such a claim, if any?

Conveniently for the enemies of transparency, the December ‘Co-options Policy’ document avoids referring to the actual law that governs these issues.  Nor does the document reveal the identity of its author.

The document cannot refer to the relevant laws.  Because if it did then everybody would see that a town or parish council would be breaking the law if it managed to exclude the public from a co-option agenda item in one of its meetings.

Reason: co-option of new members to a council are self-evidently a matter of public interest.


The Dimensions Of This Issue

The areas of concern to NMTC if it were now to attempt moving co-option decisions to Part Two of its meetings are as follows:

The council’s reputation;  the government’s wishes;  and the law of council meetings.

The reputation of the council

Since the dark days before the dramatic clear-out in the local elections of May 2007, New Mills Town Council has made good strides in improving its transparency performance.

But now it appears that one particular councillor – Cllr Tony Ashton - may be trying to backslide to earlier bad habits of unlawful council secrecy, and drag New Mills town council back down there with him.  What will the other councillors decide on this issue?

The government’s wishes regarding transparency in local government

The government’s policy on transparency in meetings of local councils was published by the Department for Communities and Local Government in June 2014.  Title: ‘Open and accountable local government: a guide for the press and public on attending and reporting meetings of local government’

The section concerning town and parish councils is Part 4: ‘Access to meetings and documents of parish and town councils’. Here are the extracts relevant to this issue:

“As a member of the public, you have the right to attend the annual parish and town meeting, as well as the meetings of parish and town councils…

“Notice of the meeting specifying the business to be discussed must be placed in a central conspicuous place within the parish or area at least 3 clear days (excluding Sundays and Bank Holidays etc – HPT Ed) before the meeting.  These councils are also encouraged to place copies of the agenda, meeting papers and notice of meetings at offices and on their website, if they are in possession of these facilities.

“Can a parish or town council… choose to meet in private?

“All meetings of these councils must be open to the public, except in limited defined circumstances. These councils can only decide, by resolution, to meet in private when discussing confidential business or for other special reasons where publicity would be prejudicial to the public interest.

“What is confidential information and publicity prejudicial to the public interest?

“We expect this to cover matters such as discussing the conduct of employees, negotiations of contracts or terms of tender and the early stages of a legal dispute.”

Note:  co-option of new council members is NOT on the government’s list of the limited matters for which a council may exclude the public from its meetings.


Other key statements about transparency in local government

Also in direct conflict with the ‘secret’ aspect of this NMTC proposed change in co-options policy are the following:

Arnold-Baker

The town and parish council ‘bible’ – Arnold-Baker on Local Council Administration*** - says the following about councils trying to exclude the public from meetings:

“In few cases is there any good reason for excluding the press or the public from meetings, and in still fewer is it necessary to impose secrecy upon the members.”

The detailed passage is as follows:

“A meeting of a council must be open to the public and the press. They can be excluded only by a resolution if publicity would prejudice the public interest by reason of the confidential nature of the business or for some other reason stated in the resolution and arising out of the business to be transacted.  The power to exclude* is not exercisable generally but only for a particular occasion.”

“In few cases is there any good reason for excluding the press or the public from meetings, and in still fewer is it necessary to impose secrecy upon the members.  As a rule, however, it is desirable to treat the discussion of the following types of business as confidential:

- engagement, terms of service, conduct and dismissal of employees;
- terms of tenders, and proposals and counter-proposals in negotiations for contracts;
- preparations of cases in legal proceedings; and
- the early stages of any dispute.”

Needless to say, in Arnold-Baker on Local Council Administration, co-options of new members onto the council are not on the list of business that ‘it would be wise to treat as confidential’.


NMTC’s December Co-options policy document

Even the December ‘Co-options Policy’ document itself states, in only its second sentence:

“It is especially important that the (co-option) arrangements are seen as open and fair.”


The law of council meetings – the public’s right to attend

The laws relevant to this subject of public rights of access to its council meetings are easily accessible on the official Statute Law Database of the United Kingdom at www.legislation.gov.uk

Here they are:

Public Bodies (Admission to Meetings) Act 1960

(1) Subject to subsection (2) below, any meeting of a body exercising public functions, being a body to which this Act applies, shall be open to the public.

 (2) A body may, by resolution, exclude the public from a meeting (whether during the whole or part of the proceedings) whenever publicity would be prejudicial to the public interest by reason of the confidential nature of the business to be transacted or for other special reasons stated in the resolution and arising from the nature of that business or of the proceedings; and where such a resolution is passed, this Act shall not require the meeting to be open to the public during proceedings to which the resolution applies.

It is clear from Section 1 that the public have the right to attend all New Mills town council meetings.

Section 2 specifies those limited subjects when the public can be excluded from the meeting.  Co-options of new members of a council - a public body - clearly do not fall under these exceptions.

Co-options are evidently a) not confidential; and b) a matter of public interest.


Schedule 12A to the Local Government Act 1972

Of course, some HPT readers will now be asking: “But what about Schedule 12A to the Local Government Act 1972?  Surely that says an individual’s information is exempt from being revealed to the public by a council?”

Such a misreading of Schedule 12A is probably the original cause of the attempt at co-option secrecy in the December proposed co-option policy document.  If so, the anonymous person who wrote that document has not read the law properly.

Schedule 12A concerns the public’s right of access to information held by a council.  The relevant parts are as follows:

Clauses 1, 2 and 3 of Schedule 12A indicate that in general a council should not disclose information to the public relating to an individual; or likely to reveal the identity of an individual; or relating to an individual’s financial or business affairs.

However, this ban on revealing an individual’s information is conditional, not absolute.

It is specified to be conditional on the public interest of the particular matter being discussed. The public interest in knowing the identity, information, interview performance etc of all co-option candidates is therefore protected by Schedule 12A's Clause 10:

10.  “Information which—
(a) falls within any of paragraphs 1 to 7 above; and
(b) is not prevented from being exempt by virtue of paragraph 8 or 9 above,
is exempt information if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”

There is a strong public interest in co-options, and in co-options being as open and transparent as possible.

In all the circumstances of this case - which concerns co-options to a public body - the public interest in disclosing the relevant information about the co-option candidates outweighs the public interest in maintaining the exemption, i.e. the attempt at secrecy proposed in the December 2016 NMTC ‘Co-options Policy’ document.


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References:

* Public Bodies (Admission to Meetings) Act 1960

** Numbered paragraph 4 in the December ‘Co-options Policy’ document

*** Ninth Edition, paragraph 7.6