STEALTH LEGISLATION

[Stanley]

STEALTH LEGISLATION

(1 March 2006)

Statutory Instrument 2001 No. 3575. The Local Authorities (Model Code of Conduct) (England) Order 2001.
I have just had this piece of legislation brought to my notice by a friend. Note that it is not an Act of Parliament, it is an executive order, in other words it has not been debated and voted on in Parliament. Much of the order is sensible enough guidance to local councillors which will help them to recognise circumstances when they have to declare an interest and withdraw from any decisions taken by the council on the matter in question. However, embedded in the order is a particularly obscure piece of law which, as the order has bedded down, is causing trouble.
The particular circumstance is that one of the circumstances that disqualifies a councillor from a debate and subsequent decisions is ‘prejudicial interest’. The problem that has arisen is the definition of prejudicial interest. This definition is decided by an appointed council officer called the Monitoring Officer. One circumstance quoted to me was that of a councillor who was barred from a debate on a wind farm because he had previously written a letter to the local paper expressing his adverse view in the matter, in other words, his opinion. I think you can see the danger here, suppose you want to load a debate one way or the other, all you have to do is find evidence of a contrary view, present it to the monitoring officer and demand that he apply the provisions of SI 3575 and bar the dissidents from the debate and subsequent vote. My informant told me of a case in Rossendale where this gag was applied to a councillor who had been vocal in his objection to a planning matter on the grounds it was going to reduce the available play area for children. He was barred from the discussion on the grounds that he had a prejudicial interest.
Where are we going here? Suppose this principle was applied to Parliament. The whole of the opposition. i.e. those who vote against a measure, could be said to have demonstrated a prejudicial interest. So do we discount all the votes against the motion on these grounds? This is obviously absurd and is certainly not what was meant by the strictures in the order but the point my informant made was that in practice, this is the way it is working at local level. He knows of at least one elected councillor who is going to resign as a consequence of how the order is being applied.
The whole idea of debate is that different views and opinions are canvassed and expounded as a route to informed governance. Once we exclude dissidents we are on a very slippy path.
(1 March 2006)