Exclusion of press & public does this apply to councillors not on a committee?

Question

In the NALC good councillor guide on page 62 it states that exclusion of the press & public applies to councillors not on a standing committee. One of our councillors challenged this saying there is nothing in standing orders to that effect. Our standing orders are the Nalc model standing orders with very few changes.
I am wondering if anyone knows of the specific item of legislation applying to this as I can't see NALC referring to  something that is not correct.

Answer 1

It’s an “opinion” - some agree, some don’t but I very much doubt you’ll find a definitive reference to support this.
A council may resolve to exclude the press and public but a Cllr is neither. If you have to be a committee member to not be excluded then the clerk must also leave. Illogical.

Answer 2

The NALC Guidance derives from the fact that they view a Cllr observing as not acting in capacity as Cllr but a member of the public. They would argue in response to RAC that the officer is attending to facilitate meeting so by definition (neither press or public). Do I think its perfect no though similarly would you want every single Cllr to sit and watch a staffing committee (thus making it virtually impossible fresh re-run on appeal that wasn’t open to challenge…) I don't support committees full stop never liked them (reducing decision makers and crucially the majority needed to pass stupid decisions that impact entire council reputation). 

Comments

That premise fails at the first hurdle - a non committee Cllr in attendance at a committee meeting WOULD be deemed as acting in their role as a Cllr, not as a member of public, in the event of a code of conduct complaint.  QED

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Interesting suggestion but I've also seen an MO declare that a councillor did not fail to declare a DPI when he attended a planning committee meeting at which his application was discussed as that councillor was not an agreed member of that committee therefore was attending as a member of the public and the public are not required to declare interests.

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The critical point from our respective examples would be - was the Cllr attending as a Cllr.
In your example, a person who is a Cllr ‘could’ attend a committee as a member of public quite rightly if they were representing their own planning app.
Conversely, if a person who is a Cllr WANTS to attend a committee ‘in role’ as a Cllr then they would be acting in role as a Cllr.
Neither example is 100% conclusive but what is your opinion on a Cllr seeking to remain in the room when a committee goes into closed session?

FWIW, I actually think it is another grey area - but if I wanted to remain in a closed session of a committee of which I was not a member I would certainly press the test button.

PS - my position is based in multiple and sustained examples of misuse of the privilege of closed session by a PC with inept, dishonest, corrupt and ignorant Cllrs

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Not surprisingly I'm going to disagree but I suspect the answer is to ensure all standing orders and committee terms of reference are very clear.  For my council, committee appointees are made by full council at the annual meeting (there's provision for adding additional members during the year but essentially it is an annual vote for who is and who isn't a member of any committee).  The committee terms of reference cover those situations when a councillor attends who is not a member of the committee but stating that the councillor is a member of the public in such circumstances.  It's a bit of an academic point in practice but resolves any issues in the event that a query is raised.

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It’s OK to disagree.
Neither ToRs nor SOs, IMO, supersede individual rights and responsibilities. For example, ToRs apply to the committee rather than to Cllrs who are NOT committee members. The obverse - committee ToRs applying to non committee members - would clearly mean non committee members were bound by committee ToRs and therefore part of the committee.
These circumstances and the ‘common beliefs’ that seem to arise around them simply do not stand up to scrutiny.
I concede the point that all Cllrs attending a HR committee leaves no room for independent appeal / review but what would a finance or estates committee need to do in closed session which would exclude a non committee member?

It may be an academic point of discussion in an effectively functioning council, but in a poorly functioning council these ‘exclusions’ are the occasions where secretive and nefarious business is conducted - often in an inappropriate application of the very limited circumstances which allow for exclusion of the press and public.
We’ll have to agree to disagree and when (rather than if) I get to challenge the situation in real time I’ll be sure to update what actually happened.
You probably see where this is going - if a Cllr is NOT a Cllr at a committee they don’t sit on then they are not acting as a Cllr and can’t be subject to CoC.

Answer 3

Yes it does.  A member of the council who is attending a committee of which they are not a member is doing so as a member of the public.  Therefore a resolution to exclude press and public would exclude that councillor from the meeting.  It would not exclude councillors or members of the public who are committee members, or the proper officer of the committee.  Additionally the chair of the committee may choose to invite selected individuals to address the committee in private session, e.g. a legal advisor or other council officers.

Comments

For your assertion to be true / accurate then a Cllr ceases to be a Cllr on the whim of a committee.
It should be patently obvious that this cannot hold true.
A Cllr, whether elected or co-opted, remains a Cllr until the next election, or they resign, or they fail to attend for 6 months, or they are disqualified by criminal conviction.
That’s all that changes a Cllr to a member of public. Apart from that, a Cllr is a Cllr.

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No one said anything about a councillor ceasing to be a councillor.  It is about the body, as far the 1960 Public Bodies act is concerned.  When a council resolves into committee then the legislation applies to that committee as it would to the main body.  In other words, if someone is not a member of the body (the committee in this case) they can be excluded.  It doesn't matter if they are a councillor and a member of another body (the council).

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This very same question is currently rattling around the SLCC clerks forum and the presumed wisdom there is that there is no definitive legislation which excludes classifies a non committee Cllr as a member of public and therefore eligible for exclusion at the closed session of a committee.
If you can demonstrate otherwise all well and good, but until then, it’s subjective and will only be defined by an authoritative judgement.