2 December 2003

email: oldgrumpy@oldgrumpy.co.uk

Justice seen to be done?

One of the underlying principles of our democracy is the separation of powers where the executive (government) legislature (Parliament) and the judiciary are all independent of each other.
Unfortunately, this happy state of affairs has virtually ceased to exist as it concerns the executive and the legislature because successive governments have strengthened their control over Parliament - the House of Lords and top-up fees, excepted.
Fortunately, we do still have an independent judiciary to protect us from the worst excesses of elective dictatorship.
However, there are areas where law and politics overlap to create serious constitutional difficulties.
Last week, commenting on the arrest of Sajid Badat in Gloucester, Home Secretary, David Blunkett, said that he [ Badat] posed "a very real threat to the life and liberty of our country" before adding for good measure that the security services believed that Mr Badat had links to Al-Qaeda.
While it is perfectly understandable that Mr Blunkett should want to reassure the British people that all possible steps are being taken to protect us, even suspected members of Al-Qaeda have the right to a fair trial.
If a local newspaper had printed similar material about someone under arrest, the editor would have been up before a High Court judge on a contempt of court charge before the ink was dry.
We are told that the legal authorities are looking into Mr Blunkett's outburst.
The problem is that the person making these enquiries is Mr Blunkett's Cabinet colleague the Attorney General, Lord Goldsmith.

Political football


Another area where law and politics collide, usually with malign results, is in the planning system where the same people both make and administer the law.
This inevitably leads to planning applications being kicked around in the political arena whereas, in theory at least, their determination should be a legal process where the main or only consideration is the match between the proposed development and planning policy.
Nowhere is the undesirability of mixing law and politics more clearly demonstrated than in the events surrounding the ill-starred Bluestone application.
Why on earth the Welsh Assembly didn't, long ago, call in this application to be dealt with by an independent planning inspector at a public inquiry is a mystery.
After all, it will probably end up at a public inquiry, whichever way the National Park committee jumps, either through an appeal by the applicant, if refused, or, if approved, as a major departure from policy.
Last week this curious mixture of law and politics blew a gasket and the National Park Authority's Standards Committee had to be hastily convened to try to sort out the mess.
The spanner was thrown into the works when the Park's Monitoring Officer, Roderick Morgan, relieved advice from Robert McCracken QC that those members of Pembrokeshire County Council, who also serve on the Park's Development Committee, have an interest to declare in the application.
Mr McCracken argues that, having already supported a separate application for that part of the development in the County Council's own area, and notwithstanding the fact that entirely different planning and legal considerations apply, the members "may fear exposure to public ridicule" if they took a different decision for that part of the development within the National Park.
The QC also raises questions about the loan the County Council has agreed to advance to the developers. He concludes "The prior decision to lend £1 million to this project also gives rise to to a real danger of bias on the part of councillors and a consequent inability to deal properly with the application."
Mr McCracken expresses particular concern that, when considering any conditions to be imposed on the development, members may be influenced by the prospects of the council losing its money.
He also raises questions about the position of one of the members, Cllr John Allen-Mirehouse who is a director of Milford Haven Port Authority, which is set to benefit financially from the import of the log cabins from Estonia.
However, the applicant's lawyer, John Steel QC takes an entirely different view. He says that none of the members in question has a personal interest to declare.
"There is no good reason", he says, "to conclude that a member who has decided, acting properly as a member, to agree in principle and subject to planning permission to a local authority grant or loan being made out of its funds is therefore disentitled to vote on the matter in the same or some other authority when considering the planning merits of the same scheme."
As for the specific case of Cllr Allen-Mirehouse's directorship of the MHPA, Mr Steele concludes. "No member of the public would reasonably have a suspicion of bias or perceive a conflict of interest in the members role as local authority member due to the Port being potentially involved in the importation of materials used in the buildings on the development."
So it was, armed with this expensive and contradictory advice, that the Standards Committee got down to business on Monday afternoon.
The issue it had to deal with was what to do if Mr McCracken was correct.
The National Park Committee is made up of 15 members - five appointed by the Welsh Assembly and 10 County Councillors.
According to Standing Orders the presence of six members is required to form a quorum.
Clearly, if all the County Councillors were debarred there would be stalemate.
The law allows for this by giving Standards Committees the power, in such circumstances, to grant dispensations for those members who request them to speak and vote on matters on which they would normally be required to declare an interest and leave the meeting.
The first little procedural hitch was that two of the members of the Standards Committee were Cllrs Jane Major (Lab) and Gordon Cawood (Ind) whose rights were under discussion.
After requesting a dispensation they both declared their interest and withdrew from the meeting leaving the committee with a bare quorum of three.
The Monitoring Officer explained that, whatever decision the planning committee eventually took on the Bluestone application, he was anxious that it should not be open to legal challenge because members had failed to declare their interest.
He pointed out that the costs of any such challenge would fall on the authority and that granting members dispensations was the "belt and braces" solution.
It then transpired that, preferring Mr Steel's interpretation of the law, none of the other County Councillors had asked for a dispensation.
That left the committee in a quandary because if it refused to grant dispensations to Cllrs Major and Cawood they would not be able to participate in the planning committee, having impliedly admitted to an interest in the matter by seeking a dispensation.
And, with six members - all members of the Independent Political Group - apparently prepared to take part in the planning committee, despite the clear, though contested, advice of an eminent QC that their participation "would create a real risk of bias".
The usual advice when members are faced with this sort of legal uncertainty is: "if in doubt, bale out" but, for whatever reason, members of the Pembrokeshire Independent Group have turned their faces against that course, leaving any decision open to challenge in the courts.
I am betting that m'learned friends will be banking some rather large cheques before this is all done and dusted.


Star Chamber

For the past weeks, Old Grumpy has been kept amused by the press reports on the goings-on inside Milford Haven Town Council.
For those of you not familiar with the details, it all started when Cllr Tom Sinclair walked out of a secret meeting in a huff.
Cllr Sinclair then wrote to the Mercury explaining his reasons for leaving the meeting.
Six members came to the conclusion that Cllr Sinclair's letter disclosed confidential information - a charge he vigorously denies - and put down a Notice of Motion at the next meeting of Council calling for him to be censured.
The motion was duly passed (no pun intended) though, according to what I read in the Mercury, several weeks have gone by and no letter of censure has yet arrived on Cllr Sinclair's doormat.
Highly entertaining stuff and there's probably more to come because last week's Mercury reported that Cllr Sinclair is now taking legal action to clear his name.
Old Grumpy has serious doubts about the legality of this censure-motion process because it would seem to open the way for majorities on local authorities to discredit their opponents, especially in the run-up to elections.
My doubts are reinforced by the fact that the Welsh Assembly has recently introduced legislation (The Conduct of Members (Model Code of Conduct) (Wales) Order 2001) that makes such kangaroo courts unnecessary.
According to the section 5(a) of the Code, "Members must not disclose information given in confidence, without the express consent of a person authorised to give such consent, or unless required by law to do so".
Clearly, the six signatories of the Notice of Motion, and anyone who voted to support it, must believe that Cllr Sinclair is in breach of section 5(a).
Now, here's the rub: section 6(c) of the Code provides that "Members must (my emphasis) report to the Local Commissioner for Local Administration in Wales [the Ombudsman] any conduct by another member which they believe involves or is likely to involve a failure to comply with this code of conduct."
So, by failing to inform the Ombudsman of what they "believe" about Cllr Sinclair's actions, the supporters of the Notice of Motion are themselves in breach of the code.

email: oldgrumpy@oldgrumpy.co.uk

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