When democracy and ethics conflict ...

It happens surprisingly often that rules designed to prevent corruption can, if applied too legalistically and without common sense, seriously interfere with the normal functioning of democracy.

The "predetermination rule" which the government has just rightly scrapped, was designed to make sure that councillors who had to make a decision on an issue attempted to keep an open mind in advance of the vote.

The problem was that it all too often meant that a candidate for election as a councillor who tried to be honest with his or her voters about a key issue in the ward risked finding if elected that the council solicitor told him or her not to attend or vote at the meeting where that issue will be decided because those comments have "prejudged" the issue.
Another good example was the "Standards Board" system of local government ethics which the present government rightly scrapped earlier this year.

The problem with it was that a system designed to prevent councillors from abusing their position to enrich themselves or their families and friends had grown into a frankenstein monster which regularly prevented councillors from putting forward the cases they had been elected to support and which their electorates wanted them to support.

I have previously listed some of the cases where this happened on this blog but here are a couple:

In November 2005, some 26 members of Cumbria County council were advised to withdraw from a debate about nuclear issues. The legal advice was that not just councillors who themselves work at Sellafield or had close relatives who do, but any councillor who even had a friend who works at Sellafield might be “prejudiced.” As Tim Knowles, a Labour councillor, rightly pointed out, “Virtually everybody in West Cumbria has a friend working at Sellafield.” And “West Cumbria needs to be represented on what is a key issue for its wellbeing.”

As I wrote myself at the time, those of us who live in a community where 17,000 jobs depend directly or indirectly on civil nuclear power, might well be influenced in our views on nuclear issues. But isn’t that exactly the sort of interest which democracy is supposed to reflect ?
Similarly when there was a proposal in to build hundreds of houses on a former school playing field in St Albans, which was a matter of intense interest in the ward concerned, the most recently-elected councillor for the ward was advised by the solicitor to the council not to attend the meeting at which the planning application was to be determined because she was also secretary of the local residents' association which was campaigning against the plans.

Thanks to the present government's reforms neither of these problems would happen today, but this week we have another example of a clash between democracy and principles designed to prevent a conflict of interest.

There have been rules for centuries designed to limit the participation in politics of serving judges and police officers. There are good reasons for these rules, but they nevertheless represent a serioius check on the democratic rights of the individuals affected. Society should think carefully before extending those limits - by, for instance adding magistrates to the list of people affected - which in my opinion ought to be the reponsibility of the legislature and not the judiciary.

That view is apparently not shared by one of the most senior judges in England and Wales, who has put the cat among the pigeons with an unexpected ruling that sitting Justices of the Peace cannot put their names forward to be Police and Crime commissioners unless they resign as magistrates.

For thirty years, until very recently, magistrates have formed a significant part of the existing Police Authorities whose powers the Police and Crime Commissioners will take over when they are elected on 15th November.

Admittedly, there are people who have argued against this because they believe that the relationship between the police and magistrates should not be too close. The counter argument was that the experience of magistrates was relevant to the functioning of the police authorities and that magistrates therefore brought useful knowledge to those bodies.

Similarly the experience of having served as a magistrate could be very relevant to someone's ability to do the job of Police and Crime Commissioner, and the electorate, should be able to pick such people for the job.
When parliament passed the law under which Police and Crime Commissioners will be established, they carefully specified various groups of office-holders who will not be eligible to stand for the post without resigning their current positions, and magistrates were not among them. That, most people would have expected, made the position clear. But the Senior Presiding Judge for England and Wales, the Rt. Hon Lord Justice Goldring, has ruled otherwise, issuing a circular which demands that “Magistrates who wish to stand for election, upon announcement of their intention to do so, should resign immediately.”

Sam Chapman wrote in his excellent blog, Top of the Cops that

"Judges are disqualified from being elected as PCCs, but the law does not prevent Magistrates from standing, so Lord Justice Goldring has decided that he will stop them from standing."

This looks perilously close to deciding to implement the law which he thinks parliament should have passed rather than the act which has actually been put on the statute book. As Sam continues, Lord Justice Goldring's view about a non-political judiciary "seems so extreme as to in itself constitute a political statement."

Incidentally this will not affect the situation in Cumbria where, although the Conservative candidate to be Police and Crime Commissioner served as a JP for many years, most recently in Barrow, he has already stepped down from that office.