Section 5: Declaration of interests
Question 6: Do you have any comments on the changes proposed for Section 5: Declaration of Interests?
Twenty (20) respondents (42%) provided feedback on the changes made to Section 5 in the revised Code; 26 respondents (54%) said they did not want to make any comment, and two did not answer.
Several respondents commented that the approach and the wording in the revised Code are simpler and clearer than the previous version.
“The new approach and the new wording are huge improvements on the existing rules – shorter, simpler, clearer language, easier to apply to circumstances.”
Several respondents said they liked the three-stage process for the declaration of interests, and thought that this would be a helpful tool to guide councillors through the declaration of interest process. Some respondents thought the process could be described more clearly, with additional detail, a flow chart or examples to support understanding.
“More generally, there is scope to state more clearly the connection-interest-participation stages, for example to clarify stages of: what is the connection; what is the level of interest; and what is the appropriate action eg. to participate or withdraw.”
A number of respondents commented in relation to the relaxation of requirements relating to outside bodies, covered in Paragraph 5.3 of the revised Code. Whilst some considered the liberalisation to be helpful, other respondents felt that these requirements should not be relaxed, because this might have a negative impact on public confidence in councils.
“There is considerable concern about the relaxation on the requirements for outside bodies at 5.3.f where a Councillor is appointed or nominated to that body by the Council. An example is being able to take part in a funding application for an outside body to which a Councillor is appointed to, which would be permitted under the new provisions. Elected Members feel uncomfortable with the public perception around such a situation and the dilution of the Code with regards to outside bodies.”
“[Our organisation] has a large number of councillors who sit on outside bodies for a variety of reasons, sometimes historic and sometimes required by the relevant organisation’s articles of association. This means that there will be instances where conflicts of interest could be perceived to exist and there being no requirement to declare an interest could undermine public confidence in the Council’s decision making and of the integrity of individual councillors and the Council. For example, under the revised Code councillors could take part in a decision to provide grant funding to an organisation that they are a director of without declaring any interest whatsoever. This could significantly undermine the grant process and undermine confidence in the impartiality of the Council. Although grant funding is noted within the explanatory note, the content of current proposals and any guidance would be unlikely [to] negate the perception and practical consequences.”
The same respondent felt it was unclear what the benefits were of the liberalisation of the Code in relation to this provision, and that these were outweighed by the risks.
“It is unclear what the benefits are of taking such a liberalised approach for either the Council, councillors or the public and officers suggest this is amended. Specifically, removing the need for declarations to be made at the point of decision (and placing reliance on the public to access the register of interest) creates obstacles to transparent decision making. [We] believe that the current system, whereby declarations are made but a councillor can still vote, is a far clearer process which ensures transparency at the point of decision and should be retained.”
Similarly, another respondent requested an extension to the wording on quasi-judicial/regulatory connections which would have the effect of reducing the liberalisation of the requirement:
“At Paragraph 5.3(f), it would be helpful if the quasi-judicial/ regulatory connection was extended to include financial decisions, issues relating to a contract or service agreement that the council has in place, or intends to put in place, with the other body, and significant decisions involving the operating model of the other body. It is noted that the relevant Explanatory Note does make reference to funding decisions but it is not clear if these are part of the liberalisation referred to or whether these are to be regarded as creating an actual conflict.”
One respondent requested more guidance in relation to dual roles and associated conflicts. Another has highlighted a possible divergence between the exceptions in the Code – where making funding decisions about an outside body might be considered exempt from having to declare an interest – and the advice from other bodies such as the Accounts Commission and the Standards Commission which have highlighted the risks of conflicts in areas such as funding and scrutiny.
On Paragraph 5.3(e), one respondent suggested that this should be expanded to include situations when the Council is considering appointments to positions of additional responsibility – not just to decisions relating to remuneration.
Other comments relating to Section 5 included points in relation to Paragraph 5.5, with one respondent suggesting that the requirement for the Councillor to remove themselves entirely from a public meeting where they declare an interest for an item to be “unnecessary and undemocratic”. Alternative suggestions were for the Councillor to remain but not take part in the decision, or for the decision about whether a Councillor should leave or not to be at the chair’s discretion.
Finally, a few respondents felt that the references to the ‘objective test’ (Paragraph 5.4) needed to be made clearer and more explicit, could easily be missed in the current wording, and should perhaps be a clause in their own right.