This is a question frequently asked by Councillors and residents.
Q: I have been warned that I am in danger of fettering my discretion but I do not understand what this means. Please explain.
A. As an active councillor being involved with the community, there is a danger of joining in on a campaign with your constituents that you will later be called upon to take a decision on as a member of the council. This is called fettering your discretion.
If it is about an issue over which the council have no control – for example services at a local hospital – then you have no worries and you cannot fetter your discretion.
If it is about an issue on which you will have no personal decision-making power – for example a planning matter where you are not on the planning committee or equivalent – then you can proceed with care but should avoid putting colleagues in a position where they may be considered to have fettered their discretion.
Fettered Discretion is part of common law and applied to authorities as well as individuals:
"An authority may not improperly fetter its undertaking, and it may not be stopped by its conduct from exercising its powers.
It may be required to consider the exercise of discretion in each individual case and not by reference to an inflexible policy rule".
A councillor expressing an opinion in public in any way, or being a member of a campaigning organisation locally, may be presumed to have ‘fettered their discretion’ and as such will not enter the committee room with an open mind.
In all cases where a councillor will be part of the decision-making process, he or she should consider all sides of an argument and must not take a final decision on a matter until the authority meeting is called to consider it. Although a councillor may be lobbied hard before a planning meeting, it is important that the case is considered on its merits and only after all the arguments have been put forward and considered.
Under the Code of Local Government Conduct this means that they are banned from all committee proceedings and cannot speak or vote at the committee meeting determining the matter.
If a councillor has to declare an interest there is no doubt that the councillor concerned is excluded from representing his or her electorate.
Care should be taken where a member of a principal authority is also a parish or town councillor that they must not declare themselves, for or against, any issue that the parish is discussing. This applies not just to planning applications but general agenda items. It also applied to councillors who are not members but are ‘reporting’ to their parishes.
Pressure is sometimes put on councillors to comment on a matter before the meeting, either in the press or in their own leaflets. There is no problem with the Party saying something, but the councillor should not be put in a position where it appears he or she has already taken a view. The councillor should always say that they will consider all the facts and take a decision based on the merits of the case presented.