Letter: Arbitrary Labels of Confidentiality Are A Travesty of the Nolan Principles

Published on: 12 Oct, 2017
Updated on: 12 Oct, 2017

From Kes Heffer

In response to: Letter: Some Facts About the David Reeve Complaint

In propounding “facts”, Cllr Caroline Reeves perpetuates the confusion there appears to be between The Nolan Principles (or “The Seven Principles of Public Life” published by Central Government) and Guildford Borough Council’s Code of Conduct for Councillors and Co-opted Members.

Whilst the latter (GBC code) incorporates a subtly changed version of the former (Nolan principles) as its paragraph 2, its subsequent paragraphs provide further expansion, one of which almost directly contradicts the principle of openness, which is essentially the key issue at the heart of the accusations against Cllr David Reeve.

On openness, the seven principles state:

5. Openness
Holders of public office should act and take decisions in an open and transparent manner. Information should not be withheld from the public unless there are clear and lawful reasons for so doing.

…whilst the GBC Code in paragraph 2 states:

Openness. Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.
(This is also the version used in the NHS statement of the Nolan Principles).

In this form, the GBC Code appears to entirely support the course of action taken by Cllr David Reeve which was the purported reason for the complaint against him: according to this part of the GBC code the information released by Cllr Reeve should not have been restricted in the first place, unless the wider public interest clearly demanded it.

To my knowledge no case, let alone a clear case, has been made by the complainants, or their supporterss, that there is a wider public interest for restriction of the released information in question (viz: an estimate of the historical number of jobs in Guildford in 2013).

If one were instead to refer to the Central Government form of the 7 Principles, then the reason for why the information in question might have been restricted needs to be both “clear and lawful”, Although it might be argued that there is a lawful reason (its purported confidentiality), to most rational observers, an arbitrary stamp of “confidentiality” on a report by a paid contractor is not in any way a clear reason.

Further on, the compilers of the GBC Code of Conduct felt that they were qualified to second-guess Nolan, and, under its paragraph 3, added their own pedagogy:

3. You must not:- (a) disclose information given to you in confidence by anyone, or information acquired by you which you believe, or ought reasonably to be aware, is of a confidential nature, except where:- (i) you have the consent of a person authorised to give it; (ii) you are required by law to do so; (iii) the disclosure is made to a third party for the purpose of obtaining professional advice provided that the third party agrees not to disclose the information to any other person; or (iv) the disclosure is:- (aa) reasonable and in the public interest; and (bb) made in good faith and in compliance with the reasonable requirements of the Council; or (b) prevent another person from gaining access to information to which that person is entitled by law.

This addendum has been relied upon by those wishing to restrict the release of information, who also ignore its exception 3(iv) (aa) (‘reasonable and in the public interest’).

However, such interpretation is in direct contradiction of the definition of ‘Openness’ in paragraph 2. It is clear that Cllr Caroline Reeves is referring to this interpretation of paragraph 3 in her letter, rather than to the Nolan Principles, in any of its forms, as she implied, both in her letter and again in chamber at Tueday night’s council meeting (at which the perverse and petty sanctions applied to Cllr David Reeve were ameliorated).

I suggest that this conflict of interpretation of openness be given a good deal of discussion when all of the councillors attend their plenary session to receive instruction on the Code of Conduct later in the month. They should pay attention to anything that Cllr David Reeve contributes, since he appears to have the strongest grasp of the true spirit of the Nolan principles within the council.

I also hope that Deputy Leader Furniss, if he follows through with his stated aim of proposing changes to the way that the council deals with “breaches of confidentiality”, also keeps the Nolan Principle of openness at the forefront of his mind, as well as the policies on public interest laid out by the Information Commissioner’s Office.

For a party commanding a majority in a council to use arbitrary labels of “confidentiality” to engineer a means of restricting the public release of information that it wants to keep secret would be a travesty of the Nolan principles.

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