Archived decisions

REPORT OF INVESTIGATION

INTO

ALLEGATION OF FAILURE TO

COMPLY WITH THE MEMBERS'

CODE OF CONDUCT

Reference: SBE 14236.06

Contents Page No.

Report

1. Summary 5

2. The Allegation 5

3. Referral for Local Investigation 7

4. Relevant Provisions of the Code of Conduct 7

5. The Investigation 9

6. Findings of Fact 9

7. Analysis - should a prejudicial interest have been declared? 13

8. Conclusion

Matters of Record

Letter K Cullen to SBE 14.02.06 A1

Letter J Rogers to J Pattison 23.03.06 A3

Letter J Pattison to J Rogers 30.03.06 A5

Terms of Reference of River Hamble Harbour Board A7

Report to River Hamble Harbour Board, 20 January 2006 A9

Extract from Minutes of River Hamble Harbour Board, 20 January 2006

    Items 53 - 58 A31

Tony Lovell's entry in Register of Members' interests A35

Statements

Kate Cullen A41

    · Appendix 1 : Extract, Royal Southern Yacht Club List of Members, yachts and boats 2005 A49

    · Appendix 2 : Extract Royal Southern Yacht Club Racing Programme, 2006 A51

Tony Lovell A55

Barry Peddley A63

Peggy Dorothy A67

Cllr Ross Elliston A69

John Mitchell A71

Guidance

Lobby Groups, dual hatted members and the Code of Conduct (SBE, September 2004) A73

- extracts: Page 6 A75

    Pages 19 - 20 A77

1. Summary

    This is a report of an investigation into an allegation that Tony Lovell, a co-opted member of the River Hamble Harbour Board, failed to comply with Hampshire County Council's Code of Conduct for Members. The conclusion reached is that there was a failure to comply.

2. The Allegation

2.1 The allegation is set out in the letter from Kate Cullen, Clerk to Hamble-le-Rice Parish Council, to the Standards Board for England ("SBE") dated 14th February, 2006. (see page A1). The Allegation is that at the meeting of the River Hamble Harbour Board on 20th January, 2006, Mr Lovell failed to declare a prejudicial interest in relation to a contentious item regarding a Regatta Centre for the Royal Southern Yacht Club ("RSrnYC"), that he spoke in support of the proposal, disputed part of a deputation objecting to the proposal and voted in favour of the proposal. It is alleged that his prejudicial interest arose from the fact that he was at the time the Royal Southern Yacht Club's Chairman of Race Management.

2.2 By way of further explanation, Kate Cullen's letter states that:-

    " In the RSrnYC 2006 Yearbook, the third paragraph of the Commodore's introduction states:- "Further on, the Chairman of Race Management, Tony Lovell, introduces the yacht racing events the Club will be hosting during the 2006 season."

    When the Government embarked on its Municipal Ports Review, the Parish Council was pleased to note that Harbour Boards (for both municipal and trust ports) would not include members with vested interests. Hampshire County Council set up the River Hamble Harbour Board last year and it has 7 members - 3 County Councillors (including the Chairman), the Harbour Authority's Marine Director and 3 independent members - all of whom are bound by the Code of Conduct. The complaint is that, as the RSrnYC's Chairman of Race Management, Mr Tony Lovell clearly has a prejudicial interest contrary to the Code of Conduct in that he took part in a meeting and made a decision where his interest is so significant that it was likely to affect his judgement.

    The Harbour Master's report to the Harbour Board states:-

    "The proposed development enables the Club to continue to be able to offer modern facilities in the face of improvements made to other similar event locations in the Solent, such as the new marina at the Royal Yacht Squadron."

    And a letter from the past Commodore of the RSrnYC, included with Harbour Board meeting papers states:-

      "May I refer again to the Club's need for this improved facility. We are one of the very few Clubs recognised as qualified to run National and International Championships. We have to compete for these, and as facilities elsewhere improve, so our current temporary arrangements suffer by comparison. The biggest threat to these Championships coming to Hamble is the new Royal Yacht Squadron Yacht Haven which is under construction now, and will be operational from April 2006."

    Both the above extracts demonstrate quite clearly the importance of the proposed Regatta Centre to the RSrnYC's ability to host major yacht racing events, under the Race Management Chairmanship of Mr Tony Lovell.

    An enquiry was also made regarding the County Council's Register of Members' interests and on 31 January 2006 I was informed by David Hinxman, Head of Democratic Services that there is no reference to the Royal Southern Yacht Club in respect of Mr Tony Lovell's register entry".

3. Referral for Local Investigation

3.1 By letter dated 23rd March 2006 (page A3), Jennifer Rogers, an Ethical Standards Officer of the SBE referred the matter to the County Council's Monitoring Officer, Jeff Pattison, for local investigation, subject to Section 60(2) Local Government Act 2000. Receipt was acknowledged by Jeff Pattison in his letter of 30 March 2006 (page A5). This letter records the fact that, to avoid any possible conflict of interest arising, the conduct of the investigation had been delegated to Kevin Gardner, the Council's Deputy Monitoring Officer. This has left Jeff Pattison free to advise the Standards Committee at any hearing into the matter, should this be necessary.

4. Relevant Provisions of the Code of Conduct

    The provisions of the Code of Conduct relevant to this investigation are as follows:-

    Paragraph 1.1(a)

    "A member must observe the authority's code of conduct whenever he: (a) conducts the business of the authority.....".

    Paragraph 1.4:-

    "In this code, `member' includes a co-opted member of an authority."

    Paragraph 8.1

    "A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given under paragraphs 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants of the authority's area, the well-being or financial position of himself, a relative or a friend or:

    (a) any employment or business carried on by such persons......"

    Paragraph 9.1

    "A member with a personal interest in a matter who attends a meeting of the authority at which the matter is considered must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent."

    Paragraph 10.1

    "Subject to sub-paragraph (2) below, a member with a personal interest in a matter also has a prejudicial interest in that matter if the interest is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it is likely to prejudice the member's judgement of the public interest."

    Paragraph 12.1 - 12.2

    "12.1 Subject to sub-paragraph 12.2 below, a member with a prejudicial interest in any matter must:

    a) withdraw from the room or chamber where a meeting is being held whenever it becomes apparent that the matter is being considered at that meeting, unless he has obtained a dispensation from the authority's standards committee

b) not exercise executive functions in relation to that matter; and

c) not seek improperly to influence a decision about that matter."

    "12.2 A member with a prejudicial interest may, unless that interest is of a financial nature, and unless it is an interest of the type described in paragraph 11 above, participate in a meeting of the authority's:

a)   overview and scrutiny committees; and

b)   joint or area committees,

      to the extent that such committees are not exercising functions of the authority or its executive."

    Paragraph 14.1

    "Within 28 days of the provisions of an authority's code of conduct being adopted or applied to that authority or within 28 days of his election or appointment to office (if that is later), a member must register his financial interests in the authority's register maintained under Section 81(1) of the Local Government Act 2000 by providing written notification to the authority's monitoring offer of:

    a) any employment or business carried on by him..."

5. The Investigation

5.1 In the course of this investigation I have identified various documents that are relevant to the matters raised. These documents are appended to this report under the heading "Matters of Record".

5.2 I have also conducted personal interviews with, and taken statements from, the following:-

      · Kate Cullen ( see Statement at page A41)

      · Tony Lovell (see Statement at page A55)

      · Barry Peddley, Commodore, RSrnYC, (see Statement at page A63).

5.3 I have conducted telephone interviews with, and taken statements from, the following:-

      · Peggy Dorothy, (see Statement at page A67)

      · Cllr Ross Elliston (see Statement at page A69)

      · John Mitchell (see Statement at page A71).

    I contacted Clive Fish to carry out a telephone interview but have been unable to establish contact with him to complete this.

6. Findings of Fact

6.1 On 16th May 2005, Hampshire County Council established the River Hamble Harbour Board, to discharge the functions of the Council in the capacity of Harbour Authority for the River Hamble. The terms of reference of the Board are produced at page A7.

6.2 The Board comprises seven members: a chairman appointed by the Council; two other members of the Council; three co-opted members with relevant skills and experience in the following areas - recreational sailing, marine industry, environmental management; and the Council's Marine Director. All Board members (including co-opted members), other than the Marine Director, are entitled to vote. Tony Lovell was duly appointed as the co-opted member with relevant skills and experience in recreational yachting. He is therefore under a duty to observe the Members' Code of Conduct whenever conducting the business of the Authority.

6.3 The statutory responsibilities of the Harbour Board include the power to grant permission, on such terms as it thinks fit, to persons to place and provide "moorings, buoys and the like apparatus and conveniences" in the harbour, further to Section 10 of the Southampton Harbour Act 1924. Further, Section 48 of the Southampton Harbour Act 1949 provides that the consent of the County Council (i.e. the Harbour Board) is required for the construction of any quay, wall or other work in the navigation.

6.4 Tony Lovell has been a member of the RSrnYC since 1958, and served as Commodore (the most senior post within RSrnYC) between 2000 and 2002. In 2004, we assumed the role of Chairman of Race Management.

6.5 After he stood down from being Commodore in 2002, RSrnYC became a company limited by guarantee. Since then the company has had an Executive Committee, which is a Board of Directors who make all executive decisions about the Club. Below the level of the of the Executive Committee, there are four other committees: the House Committee; the Entertainments Committee; the Sailing Committee; and the Ladies' Committee. As Chairman of Race Management, Tony Lovell is Chairman of the Race Management Sub-Committee, a sub-committee of the Sailing Committee. This means that he sits as a member of the Sailing Committee, along with the Chairman of the Sailing Committee's other sub-committees, namely the Cruising, Motor Boat and Youth Group Sub-Committees.

6.6 Decisions on all major matters within RSrnYC are made by the Executive Committee. Once a decision has been taken to hold a race event, Tony Lovell's role as Chairman of Race Management is to ensure that practical steps are taken so that the organisation of the event is a success. For example, he would be responsible for writing the rules for the race, issuing notices of the race, and ensuring that there are enough rounds of ammunition for the starting guns. It is his responsibility to attend to the practical management of a yacht race, from the moment that a decision has been taken to hold one, to the completion of the event.

6.7 The Sailing Committee prepares a Calendar of Events. It submits this to the Executive Committee with requests for any expenditure that may be needed to run it. Once this has been approved by the Executive Committee, the Race Management Sub-Committee proceeds to organise everything to run the races.

6.8 For several years, RSrnYC has been seeking to make better arrangements for the management of its pontoons. Various propositions have been put forward by way of a solution. The most recent set of proposals put forward is to modernise existing pontoon moorings, consisting of two pontoons and a landing pontoon connected to the Club by a hydraulically-operated bridge and walkway. This would enable the whole marina to have walk-ashore berths. These proposals require the consent of the Harbour Authority further to the provisions of the Southampton Harbour Acts referred to at paragraph 6.3 above.

6.9 The proposals were opposed by Hamble-le-Rice Parish Council, on the basis that access to the river for users of modest means, who wish to keep out of the main channels, would be restricted, in that two secondary channels would be closed. There was also concern as to the impact on small craft launching from the public hard.

6.10 These proposals were reported to the Board for decision on 20th January 2006. The report considered by the Board is at page A9. Tony Lovell attended this meeting as a member of the Board, and declared a personal interest in relation to this item, as a member of the RSrnYC, as did Susie Tomson, another co-opted member. This is recorded in the Minutes of the Meeting (see page A31, Minute 50).

6.11 A deputation was made by Kate Cullen, Clerk to Hamble-le-Rice Parish Council. When the report was considered by the Board, Tony Lovell disputed what was said in this deputation. In particular, he disputed the statement that the only way to row up the river was to use the route over which the proposed bridge would go. He disputed this based on his own experience of rowing on the river. He also expressed his opinion that the form of marina construction that was proposed was very reliable. Further, the proposal that was put to the Board involved some conditions for the consent which included a form of traffic control system. He made a comment that one cannot have red lights coming on at the bridge, as this could be mistaken for a port light. He said that it needed to be a narrow beam which was only visible in the channel concerned.

6.12 In attendance at the meeting as members of the public were Peggy Dorothy, Councillor Ross Eliston, and John Mitchell.

6.13 The decision of the Board was to approve the proposal. An extract from the Minutes of the Meeting is at page A31. Further statutory permissions are being sought from English Nature and the local planning authority,

6.14 Under current permissions, the RSrnYC can only put out pontoons for a total of 28 days a year. The RSrnYC has enjoyed some success in organising national and international racing events, which contribute to the local economy. The Royal Yacht Squadron in Cowes has developed a Regatta Centre, which is aimed at capturing the same market in terms of national and international racing events. If the proposals are approved and implemented, this will improve the position of the RSrnYC in competing for this business. The RSrnYC has written to the Harbour Master in support of the development proposals, saying that if the RSrnYC is unable to improve its facilities, the Hamble boating and local businesses will suffer.

6.15 As Chairman of Race Management, Tony Lovell has written the introduction of the RSrnYC's Programme of Racing for 2006 (see page A53).

7. Analysis - Should a personal or prejudicial interest have been declared?

7.1 Tony Lovell correctly declared a personal interest in the relevant item, being a member of RSrnYC. As a member of the Club, who would be able to benefit from any enhanced facilities, the decision on the proposals might (within the terms of paragraph 8.1 of the Code of Conduct) reasonably be regarded as affecting his wellbeing to a greater extent than other Council tax payers, rate payers or inhabitants of the area. In the alternative, a personal interest arose as the item before the Board related to a matter in which he carried on business, as Chairman of Race Management of RSrnYC.

7.2 The interest would amount to a prejudicial interest if it is one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it was likely to prejudice the Member's judgement of the public interest. In assessing whether this test was met in this case, I will consider this in three parts:

    (i) What evidence is there that members of the public regarded Tony Lovell's interest as significant?

    (ii) Were those views based on knowledge of the relevant facts?

    (iii) Were those views reasonable?

7.3 (i) What evidence is there that members of the public regarded Tony Lovell's interest as significant?

7.3.1 The investigation has revealed a reasonable body of evidence that members of the public considered Tony Lovell's interest to be so significant that it was likely to prejudice his judgement of the public interest. The complainant, Kate Cullen, has experience of the operation of the Members' Code of Conduct, having been trained on this and formed judgements on its application in particular cases (see her Statement paragraph 3, Page A42). She expected Tony Lovell to declare a prejudicial interest (Statement paragraph 8, Page A45). Furthermore, when she reported back upon the matter to her Parish Council, the Parish Council took the view that a prejudicial interest should have been declared (Statement paragraph 14, Page A46).

7.3.2. In addition, the three persons in the public gallery at the Board Meeting on 20th January 2006, who have provided statements, are of the same view. Councillor Ross Elliston expresses surprise that a prejudicial interest was not declared (his Statement paragraph 3, Page A69 - A70), John Mitchell likewise (his Statement paragraph 3, Page A71), and Peggy Dorothy also (her Statement paragraph 4, Page A67-A68).

7.4 (ii) Were those views based on knowledge of the relevant facts?

    The question then is whether the views held by these persons were based on knowledge of the relevant facts. The witnesses have expressed their views on the basis of the following facts:-

7.4.1 The RSrnYC had a need to improve its facilities, to remain competitive in the market for hosting national and international sailing events, particularly in the light of the development of the Royal Yacht Squadron Yacht Haven at Cowes. If the proposals were not successful, Hamble Boating and local businesses would lose out. (see letter from Colin Hall in support of the proposals to the Board, Page A28). Kate Cullen's Statement refers (at paragraph 6, Page A44) to RSrnYC having said, in pre-application discussions, that it was important the development went ahead, to keep up with the Royal Yacht Squadron.

7.4.2 As a long standing member of the RSrnYC, past Commodore, Member of the Sailing Committee and Chairman of Race Management, Tony Lovell had a status within RSrnYC that made him one of a particular group of members responsible for management and implementation of the Club's affairs.

7.4.3 In particular, as Chairman of Race Management, he had an interest in the successful implementation of the Club's racing activities. Approval to the development proposals was important for the continued growth and success of these activities.

7.5 (iii) Were those views reasonable?

    The question then is whether, in all the circumstances, it was reasonable for these people to hold these views. In this context the following factors must be considered:-

7.5.1 Tony Lovell has explained that the complaint against him reflects a misconception of the power and influence he holds as Chairman of Race Management. All executive power rested with the Executive Committee, of which he is not a member. He explains his role as being one of getting on and implementing the racing calendar that the Executive Committee has approved (see his Statement paragraph 5, Page A56).

7.5.2 Tony Lovell also considers that the complaint fails to acknowledge his particular role as a specialist independent member of the Board, to give expert input to the Board on matters to do with recreational sailing.

    However, the following factors are also relevant:-

7.5.3 The RSrnYC's published list of members, yachts and boats confirms that, out of its 1600 members, Tony Lovell is one of a much smaller group that together comprise membership of the Club's main governing committees (see Page A49-A50). Further, the Club's published Programme of Yacht Racing for 2006 contains introductory and/or welcoming statements from only two members - the Commodore, Barry Peddley (Page A52), and the Chairman of Race Management, Tony Lovell (Page A53). Together, the Club's published information supports an impression that Tony Lovell holds a particular status and level of responsibility within the Club for its racing activities - activities the future growth and success of which were inextricably linked to the outcome of the development proposals.

7.5.4 Although Tony Lovell is not a member of the RSrnYC's Executive Committee, as a member of the Sailing Committee he is nevertheless responsible for making decisions necessary in implementing the calendar of racing events within the budget that has been approved by the Executive Committee (see Barry Peddley's Statement paragraph 3, Page A64).

7.5.5 By its very nature, having a personal interest in a matter means that one is likely to have a greater level of personal knowledge about that matter than other members. A normal consequence of declaring a personal and prejudicial interest in a matter, and withdrawing from consideration of it, will be that the meeting is deprived of that member's personal involvement in debate at the meeting. This cannot be a reason therefore to refrain from declaring a prejudicial interest where one exists. Further, there are other ways open to a member to feed their views into the debate. Guidance issued by the SBE advises that a member with a prejudicial interest in a matter can still present their views to the meeting through other means that do not involve improperly influencing the decision. For example, a member can make written representations to the officers involved (but not to individual members) providing that the existence and nature of the interest is disclosed and preferential consideration is not sought (see Page A77).

7.5.6 It is also relevant that, in considering whether to exercise its powers under the Southampton Harbour Acts to grant permission for the proposals, the Board was engaged in regulatory matters, akin to planning and licensing functions. As such, guidance from the SBE is relevant (see Page A75). This advice states that such matters require particular sensitivity and that all members are expected to act reasonably and fairly. Applications for consent must be determined in accordance with the law, and very often human rights issues will be involved. A particularly cautious approach is advised.

7.6 As a result of the above analysis, my conclusion is that Tony Lovell's personal interest in the item before the Board was one which a member of the public with knowledge of the relevant facts would reasonably regard as so significant that it was likely to prejudice his judgement of the public interest. Consequently, the interest was prejudicial within paragraph 10.1 of the Members' Code of Conduct.

7.7 In reaching this conclusion, I must add that there is no evidence whatsoever that Tony Lovell's failure to declare a prejudicial interest was a result of any improper motive to secure favourable treatment for the applicants. Rather, the evidence is that this failure reflected a wish on his part to fulfil what he saw as his responsibility, as an independent member of the Board, to provide expert advice on matters to do with recreational sailing. As indicated in paragraph 7.5.5 above, there are other ways in which representations on such matters can be fed into the Board's decision making processes. In my view it would be advisable for the SBE Guidance (pages A73-A78) to be brought to the attention of the Board's independent members, so that in future they will all be clear as to how they can still make representations on a matter in which they have a personal and prejudicial interest, without breaching the requirements of the Members' Code.

8. Conclusion

    The conclusion reached in this investigation is that the allegation is proven, and that Tony Lovell did fail to comply with paragraph 12.1 of the Members' Code, by failing with withdraw from the meeting of River Hamble Harbour Board on 20th January 2006 during consideration of an item (Item 7A on the Agenda) in which he had a personal and prejudicial interest. I therefore make a "finding of failure" for the purposes of Regulation 5(7) (a) (i) of the Local Authority's (Code of Conduct) (Local Determination) Regulations 2003.

    Kevin Gardner

    Deputy Monitoring Officer

    Hampshire County Council

    27 July 2006