Agenda item

The Committee is recommended to make the resolutions set out in the report at item 10.

The Executive Head of Legal and Democratic Services addressed the Committee and introduced the report and proposed Monitoring Officer Protocol set out in Appendix 1. It was noted that Section 5(1) Local Government and Housing Act 1989 and the Localism Act 2011 requires the Council to designate an Officer as the Council’s Monitoring Officer and sets out the responsibility of the designated Officer. The Executive Head of Legal and Democratic Services emphasized the importance of approving and introducing the proposed Monitoring Officer Protocol to ensure legal protection for the Monitoring Officer and to allow the Monitoring Officer to effectively discharge the obligations set out in statute. The Protocol sets out the roles and responsibilities and the limitations of the Monitoring Officer for the benefit of other officers and Members of the Council i.e. the monitoring officer is the Council’s primary legal advisor to the Council, is politically neutral and available to offer impartial legal advice to all Members in the best interests of the Council.

Cllr Hyman had registered to make a statement on the agenda item and was allocated 4 minutes to speak. Cllr Hyman suggested that Members must be able to ensure the accuracy of legal advice or information being provided and argued that there are no ‘checks and balances’ in the Constitution by which the Monitoring Officer be held to account in the case of incorrect legal advice. He further raised a point about section 4.0, bullet points 1 & 2 of Appendix 1, and stated that this would not be appropriate if the Monitoring Officer is the subject of the investigation or has an interest. Finally, he sought clarification about the reference to ‘special persons’ in section 4.0 of Appendix 1.

The Chair invited the Executive Head of Legal and Democratic Services to respond to some of the points raised. The Executive Head of Legal and Democratic Services informed Members that the appointment of two Deputy Monitoring Officers between Guildford and Waverley allows for impartiality to be upheld as the Monitoring Officer can receive independent and professional advice from their deputies.

The Executive Head of Legal and Democratic Services clarified that the Monitoring Officer is personally liable for any legal advice they provide, and the Council can take legal action against the Monitoring Officer in case of a breach or misconduct. Therefore it was clarified that there are ‘checks and balances’ in place. In the event of a conflict of interest, the Deputy Monitoring Officer would act in place of the Monitoring Officer and this can be specified in the clause. With regards to the appointment of ‘independent persons’, it was clarified that this role is designated by the Full Council and if there is a question about their integrity it is within the remit of the Full Council to appoint other ‘independent persons’. It was also clarified that the designation of the Monitoring Officer is the Council decision and the designation of the Deputy Monitoring Officer is delegated to the Monitoring Officer themselves and this is considered right and prudent as the Deputy is responsible to assist the Monitoring Officer with their work.

The Committee endorsed the point made by Cllr Hyman pertaining to section 4.0, bullet point 2 and agreed that this should be amended to specify the procedure in the event of the Monitoring Officer being the subject of the investigation. The Committee also agreed that section 4.0, bullet point 1 should be amended to include ‘or Conflict of Interest’ and agreed to delegate authority to the Executive Head of Legal and Democratic Services to finalise the wording and make both amendments.

Members raised a query regarding part 5.2, bullet point 6 in the proposed Monitoring Officer Protocol at Appendix 1, which may be interpreted to imply that the Monitoring Officer must be legally qualified although the previous Monitoring Officer was not, while the Borough Solicitor was delegated authority to provide legal advice to the Council. Members queried whether the designated Monitoring Officer is required to be legally qualified. The Executive Head of Legal and Democratic Services clarified that the Monitoring Officer is not required in statute to be legally qualified and the function of providing legal advice can be discharged to an appointed Deputy Monitoring Officer (usually the Borough Solicitor). Members therefore suggested that the wording should be amended to cover or to allow provisions for a non-legally qualified Monitoring Officer and agreed that delegation should be given to the Executive head of Legal and Democratic Services to make the change.

The Chair invited the Committee to vote on the recommendations set out in part 2 of the report, subject to the amendment detailed in the discussion above.

There was a unanimous vote in favour.

The Committee resolved to recommend that Full Council;

1.     approves the proposed Monitoring Officer Protocol in Appendix 1, subject to the following changes: Section 4.0, bullet point 1 to include ‘or Conflict of Interest’, Section 4.0, bullet point 2 to specify the protocol in the event of the Monitoring Officer being the subject of the investigation and Section 5.2, bullet point 6 to include wording that does not require the Monitoring Officer to be legally qualified, with delegated authority to the Executive Head of Legal and Democratic Services to make the amendments.