Representing residents: not a hypothetical matter

[Mark Bostock]

There follows an exchange of e-mails between Judith Barnes, a co-opted (i.e. unelected) member of the City Corporation’s Standards Committee, and Councillor Mark Bostock, who is one of the three elected members applying for a “general" dispensation to speak and vote on issues affecting his Cripplegate electorate.  You can see from this exchange what your elected members are faced with in trying to get the same level of representation for residents of the City as residents get in all other boroughs. Please feel free to post your comments.

You can watch the film referred to below:

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29 November 2019: Text of an e-mail from Councillor Bostock to all the elected members of Cripplegate and Aldersgate Wards and the members of the Standards Committee.

 

Dear All

 

I thought I would bring you up to date with the long running dispensations issue. Last week the Dispensations Sub Committee met - Jamie Ingham Clark (chair), Barbara Newman, Mary Durcan and Judith Barnes (co-opted member), together with the relevant officers.  

 

The main purpose of that meeting was to consider three identical applications submitted by me and two other resident members  for dispensations to speak and vote on any matter which affects our constituents and in which we may have a “pecuniary interest” except for a matter which:

(a) affects us uniquely or more than any of our constituents; and

(b) insofar as regards a dispensation to vote only, falls within the restriction imposed by section 618 of the Housing Act 1985, for as long  as that provision remains on the statute book.

 

The meeting was held in public and was filmed. A recording of the whole meeting can be viewed on the website of Golden Lane Estate.

http://goldenlaneestate.org/forum/topics/dispensations-sub-committe...

 

You will see from the recording (at 9.25) that the co-opted member, Judith Barnes, remarked, among other things, that: 

 

“If, for example, Mr Bostock, and possibly his wife, have an interest in a particular planning application because they can make a lot of money out of it (now I’m using this purely hypothetically as an example), and nobody else in the ward benefits, then they would still be able to speak and vote and that’s got to be completely wrong.”

 

Apart from this statement itself being completely wrong, I am astounded that my wife's and my name should be used by way of a 'purely hypothetical' example.  This has caused me to make a formal complaint to the Comptroller and City Solicitor. 

 

The meeting failed to come to a conclusion on the three dispensations applications, which were referred  to the Standards Committee for a decision at its 24 January meeting,

 

And so the saga goes on!

 

Regards

Mark

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9 December 2019 : Text of a reply from Judith Barnes (Co-opted Member of the Standards Committee) to Councillor Bostock.

 

Dear Mr Bostock

 

It would seem from your complaint that you misunderstood the point that I was trying to make (in my later remarks as well as those you quote) at the meeting of the Dispensations Sub (Standards) Committee that considered applications from yourself and two other members in identical form.

 

It is not always easy to articulate a point clearly in a brief intervention at a sub-committee meeting, so it may help if I explain more fully why I think it would be wrong to grant a general dispensation in the form you requested.

 

You ask that you should be allowed to speak and vote until your term of office expires in March 2021 on any matter which affects your constituents and in which you may have a pecuniary interest except for a matter which affects you uniquely or more than any of your constituents (or, in relation to voting only, falls within the restriction imposed by section 618 of the Housing Act 1985).

 

Thus, if you and just one other of your constituents are equally affected (or if that other constituent is more affected) by a matter before the Corporation in which you have a pecuniary interest, the exception you make to the proposed dispensation will not apply. This is because you will not be ‘uniquely affected’ (another constituent will also be affected). Nor will you be affected ‘more than any of your constituents’ (another of your constituents will be equally or more affected). You will therefore be able, if granted a dispensation in the terms requested, to speak and vote on that matter.

 

Assuming therefore a member is granted a dispensation in the terms you requested, if that member and, for example, that member’s spouse are equally affected by a matter before the Corporation (eg a planning application), perhaps because of a jointly owned pecuniary interest (eg a flat or house), that member will be able to speak and vote on the issue in question even if it benefits only the two of them while adversely affecting the rest of the residents in the ward.

 

 If you disagree with this analysis, perhaps you would let me know where you think I have got it wrong.

 

 People who live or work in the City of London deserve a system that gives them confidence that their elected representatives, whether current or future, will vote in the public interest, not their own. The same is true of people elsewhere in the UK and abroad who deal with the Corporation and for whom the probity of members is more likely to be an unknown quantity. I hope you would agree that, if my analysis is correct, granting members a general dispensation in the terms proposed could seriously undermine that confidence.

 

Regards, 

Judith Barnes

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11 December 2019: Text of a reply from Councillor Bostock to Judith Barnes (Co-opted Member of the Standards Committee).

 

Dear Ms Barnes,

 

I am replying to your e-mail of 9 December.

 

The point of my complaint was not that you had miscommunicated anything, but rather that you had cast an unfounded slur on the character of my wife (who has no involvement in politics) and myself in an official and public forum of a City Corporation sub-committee meeting.   I am afraid that I do not think your afterthought that your remark was “purely hypothetical” is an excuse. If you had wished to give a hypothetical example, why did you not refer to a hypothetical member, instead of a real, named, one?  `A member of the public, on hearing my wife and I being named as “hypothetical” criminals, might reasonably suppose that there was good reason for choosing us as such an example.

 

The consequences of your remark are, moreover, not hypothetical.  I am at the present time actively involved, in my personal capacity, in promoting a major infrastructure project that was reported in the Telegraph on the day you made the remark. A suggestion of impropriety concerning a promoter of this project, however spurious it is later shown to be, might have serious consequences for the project as well as myself.  On the day of your contribution I did a quick search of the internet just to satisfy myself there was no reference to it.

 

I note that you offer no apology for your remark. Rather, you claim that I misunderstood what you were saying, which is not true. You then make the situation worse by implying in the last paragraph of your email that what I was seeking could seriously undermine public confidence. 

 

In my opinion, what you say is wrong for the following reasons:

 

You referred to my wife and I “making a lot of money” from say, a planning application, where “nobody else in the ward benefits” if the dispensation I was seeking was granted. That is a completely wrong interpretation of the dispensation. This should have been apparent from even a cursory reading of its terms. I am concerned that you appeared not to have realised this, because the meeting in which you made that remark was the third occasion on which you were part of a committee or sub-committee that considered this application.

 

Your remark was wrong because the dispensation expressly excluded its application to a matter affecting a resident member “uniquely or more than their constituents”, which was the situation you described.  Interestingly, in your email, you seem to change tack, without acknowledging this error, and describe a different situation, in which a member has a “pecuniary interest” in a planning matter that affects the member and one other constituent equally.  But again you appear not to have read my application, because it states that:

 

“In a case where I can rely on a dispensation, but only a few constituents are equally affected, I should be trusted to use my judgment (or “common sense”) as to whether I do, or whether I do not speak or vote.”

 

I would like to know on what basis you consider that you, who are unelected, and spent some time in the last meeting explaining how you knew nothing about the area in which the City’s largest residential population lives, are entitled to prescribe to elected members how they should exercise their judgment? 

 

The City has no history of members seeking to abuse their office in the way you contemplate, so there is no reason to suppose that members will suddenly start doing so now.

 

The purpose of my words  “uniquely or more than their constituents” in my dispensation application is to create legal certainty for resident members, and thus prevent a recurrence of the case last year in which the public was scandalised by a member of unimpeachable integrity being referred by the Corporation to the police for prosecution that was later established to be groundless. That case, and the promotion of an extraordinarily restrictive dispensations policy by the Standards Committee of which you were a member, resulted in more than a thousand City residents signing a petition in which they declared that they had no confidence in the City’s “standards” regime. The petition also called for dispensations to speak and vote precisely of the kind that I and two other members have applied for. I would like to know on what basis you believe that you know better than the public what they should have confidence in, or what they “deserve"?

 

My hope is that the Standards Committee at its January meeting will come to a sensible resolution of the dispensations issues by granting dispensations of the kind the public expects, and thus start to regain public confidence in the City’s “standards” regime.  I understand that all committee members have received a draft of a revised application form which could be used for this purpose, and which addresses issues unrelated to dispensations, specifically the  “rule against bias”. 

 

I understand that my complaint is likely to be considered by an Assessment Sub-Committee sometime next month.  I propose to forward this email exchange to that sub-committee when its members are known, so that they can take all the points made in this email exchange into account.

 

Regards,

Mark Bostock

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16 December 2019: Text of a reply from Judith Barnes (Co-opted Member of the Standards Committee) to Councillor Bostock.

 

Dear Mr Bostock

 

Thank you for your email of 11 December. 

 

Nothing I said at the meeting of the Dispensations Sub (Standards) Committee on 18 November could conceivably be construed as a slur on the character of you or your wife. I made it crystal clear that the example I gave was purely hypothetical, the logic of which was to broadcast loud and clear that I was not suggesting improper behaviour. This was not an ‘afterthought’, it came exactly where it needed to, as a preface to the hypothetical example itself.

 

I am baffled by your suggestion that I should have referred to a ‘hypothetical member’. There is no such thing. The applications before the sub-committee were from actual members and members who make applications for dispensations must surely expect those actual applications to be subject to scrutiny. Such scrutiny will often require the use of hypothetical examples to demonstrate the possible implications of granting those applications. You insult the intelligence of members of the public in assuming they are too stupid to grasp what a hypothetical example is and what it is for.

 

As no-one could reasonably have equated my hypothetical example with an accusation of misconduct, let alone criminality, I am not surprised that your concern in relation to whatever projects you are involved in elsewhere proved to be groundless. There is however an important issue at stake here. If any mention of the hypothetical possibility that a member might vote in their own interests, rather than the interests of the City of London, is branded a breach of the Code of Conduct, that could have the effect of stifling sensible and rigorous debate on standards issues. Needless to say, the repercussions of this for the City of London Corporation, and the public at large, could be very serious.

 

It’s obvious that I did not make my point clearly enough at the meeting on 18 November. I emailed you on 9 December to put beyond doubt what I was trying to say. Let me assure you, as no doubt can other members of the Standards Committee who have heard me make the point twice before, that there has been no ‘change of tack’ on my part, just an inadequate expression of a point I had already made previously. I appreciate you do not agree with my analysis of the grounds on which you are requesting a dispensation (though I have still to hear from you on what basis). But concluding from this, wrongly, that I cannot have read the papers suggests you think that no-one in possession of the facts could possibly disagree with you. This suggests an unhealthy lack of respect for  democratic debate. So does your belief that co-opted members who, as you rightly say are there to contribute an external perspective (not a detailed knowledge of the geography of estates in the City of London) are not entitled to express their views.

 

In fact I am well aware from your application that you believe that, where only a few constituents are equally affected, members should be trusted to use their judgment as to whether they speak or vote. This would mean banning a member from speaking or voting when that member is the only person affected, but allowing it when that member and the member’s immediate family are the only ones affected. Where is the logic in this?

 

More fundamentally, I do not agree that giving members carte blanche and hoping they act properly is an adequate substitute for a system that safeguards the public against the risk of misconduct and corruption. The thrust of the legislation is the need for such a system. It is not hard to see why. Neither the public nor other members of the Corporation are in a position to investigate the probity of a member, so they must be able to rely on there being effective systems in place to deter misconduct.

 

It would be naïve, to say the least, to ditch these systemic safeguards in favour of a blind faith that corruption among members of the Corporation is inconceivable. It is not enough to say that it has not happened in the Corporation to date. We would not necessarily know if it had happened before the introduction of the current statutory protections. As you know, restrictions on voting by a member with a conflict of interest were introduced in part because it is virtually impossible to prove a member’s motives when voting, whatever suspicions there might be, which made it very difficult to establish where misconduct was involved.

 

As Thomas Jefferson said of corruption, ‘It is better to keep the wolf out of the fold, than to trust to drawing his teeth and talons after he shall have entered.’ The Committee on Standards in Public Life has pointed out that problems with standards are most likely to arise where there are significant numbers of independent members. This suggests the City of London Corporation is at greater risk than most councils. That risk is compounded by the greater opportunities for corrupt enrichment that exist in the City of London. In these circumstances, leaving it to members to speak and vote as they think fit – without any objective test - on issues that potentially benefit only themselves and their family/close associates, strikes me as the height of folly.

 

I am happy for you to forward this exchange of emails to those who consider your complaint in due course.

 

Regards,

Judith

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22 December 2019: Test of a reply from Councillor Bostock to Judith Barnes (Co-opted Member of the Standards Committee), copied (as before) to Cripplegate and Aldersgate Wards and the members of the Standards Committee.

 

Dear Ms Barnes,

 

In response to your 16 December e-mail, I need to correct a number of your misrepresentations.

 

You say that “the applications before the sub-committee were from actual members and members who make applications for dispensations must surely expect those actual applications to be subject to scrutiny.”

 

I did not suggest that my application should not be subject to scrutiny. But scrutiny should not require you to refer by name to me as one of the three applicants and to my wife (who is not a politician) as being involved in making "a lot of money” from a planning application where “nobody else in the ward benefits”, or to do so in a public forum where you knew the proceedings were being recorded.

 

You say that “scrutiny will often require the use of hypothetical examples to demonstrate the possible implications of granting those applications”. 

 

I did not object to your use of a hypothetical example. My point was that in giving such an example, you could have referred to "a resident member” (who, in that sense, would have been a “hypothetical member”). Instead, you referred specifically to me and my wife. 

 

You say that “I made it crystal clear that the example I gave was purely hypothetical”.

 

I believe that adding that tag is not a sufficient excuse. Otherwise, anyone could cast an unjustified slur on the character of anyone else, such as mentioning them by name as engaging in criminal activity, and escape responsibility just by adding the word “hypothetically”.

 

You say that “you insult the intelligence of members of the public in assuming that they are too stupid to grasp what a hypothetical example is and what it is for”.

 

I have heard from several members of the public that they found your "hypothetical” slur on the character of my wife and myself outrageous, and fully support my making a complaint about your doing so.

 

In my view and several members of the public it is you who insulted the public, when you said in a meeting of the Dispensations Sub-Committee on 4 September that granting “general” dispensations “would open the door to future members who might take advantage - the wrong sort of people might join the Corporation.” The only way to join the Corporation as a member is to be elected. You were therefore necessarily implying that the residents might elect the “wrong sort of people”, and thus need to be protected from themselves.

 

You say that “as no-one could reasonably have equated my hypothetical example with an accusation of misconduct, let alone criminality, I am not surprised that your concern in relation to whatever projects you are involved in elsewhere proved to be groundless.”

 

Several members of the public did regard your “hypothetical” example as casting a slur on the character of my wife and myself, and you could say it would be insulting to them to suggest that they were not being reasonable in doing so. In any case, my concern about the effect of your remark was not “groundless". Reputational damage was not caused only because, by good fortune, the remark was not picked up and publicised. 

 

You say that “If any mention of the hypothetical possibility that a member might vote in their own interests, rather than the interests of the City of London, is branded a breach of the Code of Conduct, that could have the effect of stifling sensible and rigorous debate on standards issues.....”.

 

A complaint is being made about a breach of the Code of Conduct not because you mentioned a hypothetical possibility, but because you cast an unfounded slur on the character of a member and his wife. Incidentally, members should vote in the interests of their constituents, not the City, because they are elected by their constituents, not appointed by the City.

 

You refer to “your belief that co-opted members…. are not entitled to express their views”.

 

I have never stated, and do not believe, that co-opted members should not express their views. My objection is to the way in which you did so at the meeting on 18 November.  

 

You say that “more fundamentally, I do not agree that giving members carte blanche and hoping they act properly is an adequate substitute for a system that safeguards the public against the risk of misconduct and corruption” and “leaving it to members to speak and vote as they think fit - without any objective test....”, etc

 

The “general” dispensation that I and others sought does not give members carte blanche or the ability to act as they think fit. It enables them to speak and vote only when they do so on behalf of others who are affected no less than the member. Your repeated insistence to the contrary gave rise to the reasonable supposition that you had not read the papers in which the terms of the dispensation are set out. The "others affected" clearly do not include a spouse or family member, because I am advised that they would be treated as one with the member according to the definition of “disclosable pecuniary interest”.

 

You mention "a blind faith that corruption among the members is inconceivable.”

 

I have never stated, and do not believe, that corruption among members is inconceivable. What I stated was that “the City has no history of members seeking to abuse their office in the way you contemplate, so there is no reason to suppose that members will suddenly start doing so now.” The context of this statement was that it was appropriate for members to be trusted to use their judgment in marginal cases that fell within the dispensation. 

 

You say that “It is not enough to say that it [i.e. corruption] has not happened in the Corporation to date. We would not necessarily know if it had happened before the introduction of the current statutory protections.”

 

I am advised that the current statutory protections are not new, having been in place for the better part of this decade. Before they were introduced, corruption was illegal. A current member who has been on the Court for decades said at the meeting of the Court in March that she had never known members to seek to abuse their office in the manner under discussion. 

 

You suggest that “the City of London is at greater risk [of corruption] than most councils.”

 

If that is true, why does the City have no history of members seeking to abuse their office in the manner under discussion?

 

You quote Jefferson on corruption.

 

Your continually expressed concern about the protection of the public against possible corruption by members takes no account of what the public actually thinks. You will be aware that in April over a thousand City residents signed a petition expressing no confidence in the City’s “standards” regime, which is the responsibility of the Standards Committee of which you are a member. The petition specifically called for dispensations to be granted precisely in the form of the dispensations that I and others have applied for. You might reflect on whether you should be telling the public what is good for them.

 

My complaint, though, is confined to your conduct at the meeting on 18 November, as specified in the complaint form. While I would have considered withdrawing the complaint had you recognised that your remark crossed a line, your emails of 9 and 16 December, and particularly the number of misrepresentations in the latter, have exacerbated the original conduct to the point that I think the complaint should proceed. I ask whoever will be the members of the Assessment Sub-Committee to take this correspondence into account when assessing the complaint.

 

Regards,

Mark Bostock