Complete Copy of a Report by Angela-Main Thompson 18.02.17

AuthorityCabinet Office
Date received2020-10-20
OutcomeNo information sent - all held but exempt
Outcome date2020-12-18
Case ID1528221

Summary

The requester sought a complete copy of a 2017 report by Angela Main-Thompson reviewing potential conflicts of interest by Ministers Shimmin and Skelly regarding a planning application. The Cabinet Office confirmed the report is held but refused to disclose it, citing exemptions.

Key Facts

  • The report reviews the actions of Ministers Shimmin and Skelly concerning planning application 15/00124/B.
  • An independent Planning Inspector recommended refusal of the application due to environmental harm.
  • The Council of Ministers (CoMin) overruled the Inspector's recommendation and approved the application on 3 September 2015.
  • Ministers Gawne and Quayle withdrew from the CoMin meeting due to conflicts of interest, but Shimmin and Skelly did not.
  • The complainant alleged undeclared conflicts of interest and lobbied the Planning Committee previously.

Data Disclosed

  • 18.02.17
  • 2020-10-20
  • 2020-12-18
  • 15/00124/B
  • 20 May 2015
  • 17 June 2015
  • 15 June
  • February 2012
  • 24 July 2012
  • 5 May 2015
  • 6 August 2015
  • 3 September 2015
  • 28 August 2015
  • 11 September 2015
  • 14 December 2015
  • 83 pages
  • 3 documents

Original Request

I wish to be provided with a complete copy of a 'Report of review of the actions of Ministers Shimmin and Skelly and whether they knowingly failed to declare a conflict in relation to planning application 15/00142/B' by Angela Main-Thompson Dated 18th February 2017

Data Tables (9)

Paragraph 1.4 continues—
“[If] a Minister has permission to be absent, the Minister’s views and feedback on
agenda items and topics should be provided to the Chief Secretary for inclusion in
the meeting.”
In other words, it is envisaged that Ministers will play a full part in discussions of
such items.
“Mr. Ash has reviewed the Inspector’s report. His advice is that the economic
arguments [my emphasis] in this case do not outweigh the reasons advanced
by the Inspector in reaching his recommendation for refusal, and do not
provide a sufficient basis to entitle the Council to reach a different overall view
of the planning merits.”.
Governance AMT began by explaining that she wished to discuss Departmental governance, and how information was shared between the Minister and the Department’s officers. CC confirmed that neither he nor any DED officer had access to the Minister’s inbox. He commented that governance was extremely difficult because of the use of electronic communication and, in particular, social media. CC said that he spoke to the Minister on a daily basis and had regular meetings with him. He relied on the Minister telling him of any important contacts which he had had. CC said that at times the Minister communicated with the political members of the Department and CC was not party to that information. This lack of communication with the officers of the Department gave CC some cause for concern in his capacity as Accounting Officer. This meant he was unable to offer advice on policy proposals, and at the outset might have been unaware of evolving policy development. In consequence, he could not always ensure that officials were working in accordance with the Minister’s vision. For meetings, CC took a list of bullet points for discussion. If something of substance needed Ministerial approval CC would bring an email trail with him or papers for discussion and decision.
Signature of letters of support for planning applications on grounds of economic benefit CC explained that the Department’s consideration of support for a particular application was a political decision. It was therefore appropriate for the letter to be signed by the Minister. In many cases the Minister will have had personal contact with the HNWI. AMT accepted that, if CC signed these letters, the Minister would still be conflicted as the Minister for the Department, but that conflict would not continue if he changed Departments. It was the personal involvement of Minister Shimmin which had meant that the conflict continued. AMT asked why the Minister could not determine the policy and set out the circumstances in which DED would support an application on grounds of economic benefit, and then leave it to officers to apply the policy, with the Chief Executive signing the letter. CC thought this might be possible, but it would need a change of Departmental practice. In particular, Ministers liked to be engaged in individual cases.
Due diligence checks AMT asked about the checks carried out when agreeing to support planning applications on the basis of economic benefit. CC said that due diligence was undertaken in relation to the individuals concerned and also in relation to the likely benefits of the proposals such as jobs the development might create. At the same time, once planning approval was granted a HNWI’s plans might change and so the development might not proceed as initially anticipated. DED needed the HNWI’s trust and would not wish to appear disbelieving or to be questioning their bona fides. CC said that HNWIs could be difficult, but they were the key engines to economic growth on the Island. Without them, the Island’s economy would have been significantly harmed (in the last decade such
HNWIs had created around 1700 jobs as estimated by Economic Affairs) so their businesses were very important to the Department. AMT suggested that as DED were responsible for the Companies Registry, they could conduct some checks from within their own records: CC said they could do so but this was typically of limited value because the register contains only limited information, and many of the companies are dormant. In respect of the particular HNWI, CC thought that no such checks had been undertaken. If public money was involved in the venture, a higher level of checks would be conducted, but the level of checking had to be proportionate to the resources at DED’s disposal and be focused on the areas of greatest risk. CC gave as an example of a successful project with a HNWI The HNWI had proposed including facilities for disabled and also help for the disadvantaged and had delivered on these proposals. However, CC conceded that had he not done so there would have been nothing the Department could have done. CC thought that DED’s corporate governance was good. [CC later suggested amending “good” to “appropriate within the Department’s resources”].
Conflicts of interest AMT explained her understanding that accounting officers had, from April 2016, received copies of each COMIN agenda in advance of the meeting. CC agreed, but thought this had only happened after the change of administration in September 2016. CC did not know why it was being sent, and was surprised at AMT’s suggestion that it would assist him in briefing the Minister about Departmental conflicts of interest. He commented that he was now expected to be responsible for data protection, freedom of information and now conflicts of interest, which distracted from the main task of growing the economy. CC accepted that the Minister should know of a personal conflict, but might not always be aware of a Departmental one. However, it had not occurred to CC that he should be checking the agenda for possible conflicts of interest. His view was that Planning were best placed to inform the COMIN secretariat of the Departments which had a potential conflict of interest, but he had no suggestions about conflicts which did not involve planning. CC said that the Department’s resources were stretched. There were even more things to consider and think about. Duties were becoming more onerous as an Accounting Officer and there were stricter interpretations. Resources were constantly being cut and Departments are expected to deliver ever more, to a higher standard and with less resource. DED were also taking on more sectors so the burden was increasing. On a small island it was easy to have conflicts of interest, and sometimes it was difficult to find someone who could deal with a matter because the officers had specialisms and they also had to avoid other conflicts. He gave, as an example of difficulty in growing the economy, a matter he had been dealing with in which the Island was seeking to attract a company but was unable to circumvent the requirements of the UK immigration rules (and, in particular, the language requirement) for key staff, whereas the Irish government were considerably more accommodating.
“Protecting the Minister’s back” AMT asked about this. It was not a concept with which CC seemed familiar. CC commented that “Life in government is not like “Yes, Minister”.”. CC said that it was the Minister’s role to make decisions and exercise judgement and they should be supported and advised by officers. CC accepted that DED was constrained by legislation as to what could be done, and needed to act within its legislative powers.
Background: MS explained that he was elected in 2011, and was Minister for Infrastructure for a few months before taking on the Ministerial role at DED when Minister Shimmin resigned in 2014. MS explained that he was a member of DOI during 2013/2014 and Chairman of the Planning Committee for 1 year. There were three Chairmen during the period 2011- 14, Minister Quayle, Minister Ronan and MS.
Conflict of interest Head of Deve MS said that there were often conflicts when he was a member of the Planning Committee: these would be identified by the (then) Director, or . lopment Management MS had had no involvement with the 2011/12 Meary Voar development planning applications. AMT drew the attention of MS to the terms of reference, and noted the AG’s advice spoke of a perceived conflict of interest. MS stated that he accepted that there had been an actual conflict of interest when he attended COMIN and participated in the discussion in September 2015. COMIN meetings normally took place weekly, and MS had no particular recollection of meeting on 3/9/16. AMT asked MS whether he was aware of his being conflicted in other situations. He said he relied on the Chief Secretary or the AG to advise Ministers of a conflict of interest. He would therefore expect to have been told that he had such a conflict. At this stage, MS stated that he believed that his conflict involved the hangar at Ronaldsway and referred to the terms of reference. He stated that he had no knowledge of the hangar and would have expected to have been a matter for DOI. AMT referred MS to the letter in support of the planning application dated 5 May 2015 which MS had signed. This contained an express reference to the hangar, but AMT said that his conflict was not limited to the question of the hangar, but extended also to DED’s express support for the development. She also explained that the
Background JS explained that he had been an MHK for 20 years, 15 of which had been spent as a Minister in successively Department of Transport which is now Infrastructure, DOLGE, DEFA, DED and as Minister for Policy and Reform.
Contact with the HNWI JS explained that he and other Ministers had receive an invitation from the HNWI to visit his home to look at the site and see what had been done using local craftsmen. JS spoke of a hallway with a roof designed as a cupola. The HNWI had said he was anxious to employ more local craftsmen on the development of his property. JS thought the visit had been in 2007 or 2008. AMT asked JS about his dealings with the HNWI when he became Minister for Economic Development, JS said that he moved to DED after 2011 election but did not believe he spoke to the HNWI about this planning application.
JS’s experience of Planning JS said that having worked in DOLGE he had experience of planning matters and the attitude of the planning officers, whom he clearly regarded as hindering economic development on the Island. in 2007 he had been working on the draft Strategic Planning Policy. He had found officers were reluctant to consider any changes to their working practices. He had found it particularly frustrating and drew attention to the colourful development on the outskirts of Douglas. If a HNWI wished to undertake an innovative development in a remote location where no-one else would be affected the Planning Officers would object to it being out of keeping with its location. JS believed that the SPP had been deliberately delayed and this was a failure on the part of both Ministers and their officers. In February 2012 the consultation document for a Strategic Planning Policy was finally issued in draft and it is still referred to as a draft policy. It allowed economic benefit to be taken into account in determining planning applications, but the Planning Officers were still reluctant to take it into account and needed considerable evidence before doing so. He had found their attitude increasingly frustrating.
JS referred to the Planning Officers as amateurs. They questioned the HNWIs as to why ask they needed a bigger house which caused a strain on the relationship between DED and the HNWIs and in consequence some HNWIs have chosen to base themselves in other jurisdictions. Planning Officers preferred their own professional views to the economic interests of the Island, and viewed any attempt to put a contrary view of
the economic interest as an interference with their professional independence.
JS’s 4 letters of support for the application. JS explained that a number of letters were required because the Planning Officers wanted additional detail, and were not satisfied that the economic benefit had been made out. DED officers went out, researched, and then provided the details. The letters were discussed with the HNWI before being sent. JS believed it was for to DED to provide professional judgement and determine the economic benefit to the Isle of Man. This was the reason for multiple letters. JS understood that the 2015 application differed from that in 2012 only in respect of the appearance of the property.
Relationship with the HNWI JS said that he had no reason to think kindly of the HNWI. He had caused JS embarrassment after the original application was approved and the property was put up for sale. JS was not privy to the reasons for the HNWI’s actions. AMT talked to JS about HNWI’s failure to seek planning consent before undertaking quarrying and landscaping. JS replied there were inadequate resources for enforcement.
Ministerial involvement in particular cases JS believed the Minister should not get involved and the HNWI should send a letter setting out the HNWI’s view of the economic benefit to the Secretary to the Planning Committee. If the Minister were involved this would compromise him and there would be a conflict in interest. JS did not consider that a letter from the Minister carried greater weight in support of the application.
Perceived conflict of interest. JS accepted the AG’s view that there was a perceived conflict of interest. Such conflicts will always exist in a small island; however the method of dealing with these conflicts was the important thing. MS talked about how he decided to resign from DED, which he had described as his “dream job”. He was still annoyed by the need for him to resign because, as he put it, two lawyers had disagreed. His decision was the right one for the Island at the time. In this particular case, JS said that he accepted there was a perceived conflict of interest, and he held his hands up that he should have removed himself from the meeting. JS had no recollection of why he didn’t remove himself: he had no answer for this and this wasn’t picked up by himself, Minister Skelly or the Chief Secretary. JS added that, with the benefit of hindsight, people could perceive that there was a conflict of interest, although he did not feel there was anything personal which would have affected his judgement or decision. He had no personal interest in the matter.
Use of BoardPad Minister Shimmin said that he would read and understand all of the papers
on BoardPad. He wouldn’t need to print them off as he was comfortable with using the software.
JS’s proposals for avoiding conflict in future JS proposed: - that letters of support are signed by the CEO rather than the Minister; - that planning applications should not go to a full meeting of CoMin but be dealt with a 3 Minister subcommittee, the Ministers for a particular application being chosen from those whose Departments were not directly involved; - that only applications which are of national importance should be reviewed by a full meeting of CoMin.

Full Response Text

REPORT OF REVIEW OF THE ACTIONS OF MINISTERS SHIMMIN AND SKELLY AND WHETHER THEY KNOWINGLY FAILED TO DECLARE A CONFLICT IN RELATION TO PLANNING APPLICATION 15/00124/B PART 1 ANGELA MAIN THOMPSON O.B.E. DATED 18 FEBRUARY 2017 The Complainant 3 APPENDIX 4: Correspondence with the Ministers ........................................................................................ 64 The development and lodged his paper on 20 May 2015, complainantwas included as an "interested person". 6. The appointed independent Planning Inspector, Mr Stephen Amos, held an inquiry on 17 June 2015, following a site visit on 15 June. Meary Voar Developments Ltd was represented by Mr G. Steele QC who called evidence from the architect and a town planning consultant. g,:,plainant who had provided written objections also gave evidence and the senior planning officer, Witnessc , was also questioned. 7. Before dealing with the Inspector's recommendations, it is necessary to go back to the original application made in 2011 and approved in 2012. That application was contentious and, as indicated, opposed by ,ptainant. Between the application being lodged and its consideration by the Planning Committee, the then Minister for Infrastructure, Mr David Cretney, presented to Tynwald in February 2012 a consultation document on a draft planning policy statement C'PPS") which was to have immediate effect. The purpose of the statement was to ensure that the planning system supported economic and employment growth. The Department would have regard to the development plan and, in particular, would seek proposals to be supported by evidence demonstrating that the proposed development would secure sustainable, long-term, economic growth of Island-wide benefit. The wider benefits of economic development would be considered alongside any adverse impact. Following this statement, the Department for Economic Development C'DED'') sent four letters, each signed by the then Minister, Mr John Shimmin, to the Planning Directorate before planning consent was given on 24 July 2012. 8. The 2015 planning application was also supported by the Department for Economic Development and, by the time of the planning inquiry, the Minister, Mr Laurence Skelly, had signed a letter dated 5 May 2015 which was before the Inspector. All five letters are appended to this report as Appendix 2. It should be noted that it has not been possible to number the pages within either Appendix 2 or Appendix 4 for technological reasons. 9. Despite the letter of support from Minister Skelly, having considered all the evidence, the Inspector recommended that planning approval be refused. He concluded that the site lay in the countryside outside those areas zoned for development and it would be contrary to the provisions of General Policy 3 of the Isle of Man Strategic Plan as it did not come within any of the exceptions provided for in the policy. Further, the proposed building would be an alien and obtrusive feature which would cause significant harm to its countryside surroundings. 10. The planning application was listed as the last matter on CoMin's agenda for the meeting on 6 August 2015. Four ministers, Messrs Gawne, Quayle, Shimmin and 5 Skelly, disclosed a conflict of interest and withdrew. CoMin did not determine the planning application, but decided to seek further advice from its own Planning Adviser, Mr Mike Ash. 11. The next CoMin meeting was held after the summer holiday, on 3 September 2015. On 28 August 2015, in accordance with the normal procedure, the Secretariat uploaded the Agenda to the Ministers' BoardPads the agenda, the minutes of the last meeting (in full, whether or not a Minister had withdrawn) and the papers to be considered by CoMin, including the report from Mr Ash. 12. On 3 September two Ministers (Messrs Ronan and Watterson) were absent and Messrs Gawne and Quayle withdrew when the planning application was discussed as the 19th and final item on the agenda. Neither Mr Shimmin nor Mr Skelly withdrew. Although Mr Ash's report recommended refusal, because the economic benefit did not outweigh the adverse environmental impact, CoMin approved the planning application. The parties, including ,p 1ainaat as an interested person, were informed of this by the Planning Appeals Administrator on 11 September 2015. 13. '!!:,mplainant was aggrieved by the decision and sought further information. He received the summary of the proceedings of the Council of Ministers for September 2015 in respect of the planning application. f n ;:,P!.aina noted that "The Minister for Health and Social Care and the Minister for Infrastructure were not in attendance for this item" and correctly concluded that "there were members of CoMin participating in the determination whose Department had a direct interest in a particular outcome ..... or who had lobbied the PC [Planning Committee] previously on behalf of the applicant.". rhecomplainantwrote to HM Acting Attorney General complaining of the undeclared conflict of interest and "the unacceptable behaviour which fell below the standards set by the OCPA principles". 14.HM Acting Attorney General replied on 14 December 2015, suggesting that rheeomplainant write directly to the two Ministers concerned (or their Departments) to clarify the nature of their previous dealings with the planning application. 15.%;!, ainantWrote to both Ministers and on 18 December he wrote to the Chief Minister asking him what action he proposed to take. Following advice from HM Acting Attorney General, on 10 February 2016, proceedings were issued in the High Court on behalf of the Council of Ministers seeking to quash the decision of 3 September 2015. Before the proceedings were served, however, perhaps in the course of preparing affidavits, the Attorney General's Chambers learnt that the CoMin meeting on 3 September 2015, even with Ministers Shimmin and Skelly present, had been inquorate and the claim form was accordingly amended. 6 16. On 7 April 2016, a Consent Order was made by the High Court, quashing the decision of CoMin dated 3 September 2015 and remitting the planning application to CoMin to determine it within 28 days, CoMin was ordered to pay the company's costs. On 3 May 2016 CoMin again considered the planning application. Ministers Gawne, Shimmin and Skelly recused themselves declaring conflict of interest. Minister Quayle, whose perceived conflict arose from his having been Chairman of the Planning Committee in 2012, remained present but took no part in any discussion nor in the decision. Without his presence, CoMin would have been inquorate. The Witnesses 17. For the purpose of the Investigation, I interviewed the following witnesses whose evidence I summarise below and whose statements are included as Appendix 3. The statements as recorded have been checked and agreed in the case of officers and The complainant. Neither Minister provided comments on his statement. As the Solicitor General was providing only details of the Court proceedings, which are a matter of public record, it was agreed that no statement from him was necessary. 2 September 2016 22 September 2016 22 September 2016 23 September 2016 27 September 2016 27 September 2016 29 September 2016 10 October 2016 12 October 2016 7 October 2016 Complainant wmressA Planning Appeals Administrator, Cabinet Office WitnessB ------- Personal Secretary, OED - Senior Planning - itnesso 11111 Senior Personal Secretary to the Minister for Policy and Reform, Cabinet Office witness£ Assistant Secretary to CoMin, Cabinet Office WitnessF Business Development Manager, OED Minister Laurence Skelly (MS), Minister for Economic Development John Shimmin (JS), Former Minister Walter Wannenburgh, HM Solicitor 7 14 did not know whether there would be a conflict as he was unsure of the CoMin procedure.
Chris Corlett 36. My purpose in interviewing CC, who was still Chief Executive at the time of the meeting on 11 November 2016, was primarily to see what recommendations he could suggest for the avoidance of future conflicts of interest. In the event, he provided no suggestions, but his attitude to the problems was instructive if, as Chief Executive, he was giving a lead to other members of the Department. 37. I began by asking him about governance in DED. He said that it was very difficult with Ministerial use of social media. He confirmed that he had no access to MS’s emails and relied on MS telling him about anything important he was doing. It was clear therefore that meetings held by the Minister with individuals external to Government were being conducted by the Minister alone and that notes of such meetings were not being filed, in breach of paragraph 2.9 of the Ministerial Code. MS and CC spoke daily on the telephone and had face to face meetings several times a week. For meetings, CC took a number of bullet points for discussion, but if they were to discuss a matter of importance requiring Ministerial approval, he would take the e-mail trail or papers for decision. CC said he was concerned as Accounting Officer that the lack of communication with Departmental Officers meant that he was unable to offer advice to the Minister on policy proposals and might be unaware of evolving policy development. As a consequence, officials might inadvertently not always be working to take forward the Minister’s vision. 38. I spoke to CC about the policy of supporting HNWIs to grown the economy, and specifically asked him about due diligence checks. My note of our discussion recorded that CC had stressed the importance of trust in the relationship, but CC amended the note to suggest that due diligence checks were carried out on the HNWIs, but the HNWI’s plans might change after planning consent was obtained. DED had estimated that HNWIs had created 1700 jobs. CC cited an example the where the HNWI in question had said he would make provision for the disabled and disadvantaged. He had done so, although CC pointed out that DED would have had no sanction if he had not. They had to take the risk. I asked about basic company checks, given that the Companies Registry formed part of DED. CC doubted that they would help, because HNWIs had a number of companies, not all of which would be active. Overall, CC believed that the corporate governance in the Department was “appropriate within Departmental resources”. 39. I asked CC if he knew why letters to officers in other Departments were being signed by the Minister. He believed that the Department’s support for a particular as 15 application was a political decision so the Minister should sign any letter. The Minister had often had personal contact with the HNWI. Ministers liked to be involved in individual cases and, whilst it might be possible to change Departmental practice, it would not prevent the Minister from being conflicted.
40. Finally, I asked CC for ideas to ensure conflicts of interest were identified in future. I referred to the CoMin agenda which Chief Executives now routinely received. CC confirmed that he did receive it, but had not appreciated that he was expected to identify conflicts of interest as well as take responsibility for DPA, FoI and other administrative burdens. DED was small and overburdened and these extra tasks detracted from the work of growing the economy. It was clear that he did not believe that “watching the Minister’s back” was his responsibility. Minister Laurence Skelly 41. The meeting with MS had been fixed for his convenience and I was therefore surprised to find that he had not prepared for it, by refreshing his memory or looking at the Departmental papers. 42. MS said that he accepted that he had an actual (not merely perceived) conflict of interest when he took part in the CoMin discussion on the Meary Voar planning application on 3 September 2015. He had no recollection of the meeting and said that he relied on officials such as the Chief Secretary or HM Acting Attorney General to tell him of any conflict of interest. He understood that the conflict related to a hangar being built at Ronaldsway about which he knew nothing and which he thought should have been a matter for DoI. 43. I showed MS the letter in support of the Meary Voar Development, signed by him and dated 5 May 2015, which made express reference to the hangar and its link to the development of the property. MS had no recollection of it. I showed MS the report of Stephen Amos referring him to specific paragraphs dealing with the economic benefits which should have alerted him to his Department’s interest in the planning application. MS conceded that had he read them, it would have alerted him. He was happy to concede that he had been negligent but insisted he had not knowingly failed to declare a conflict of interest. 44. I asked MS about his knowledge of the HNWI. He was certain that he had not met him, but might have spoken to him on the telephone. He explained that, as the previous planning application had been approved, DED had seen the application as an extension of the first and had expected it to be passed without difficulty. At this point, MS explained that he had been Chairman of the Planning Committee and

16

subsequently Minister for Infrastructure for a short period. He had found the attitude of the Planning Directorate and their strict adherence to proper procedure and their narrow vision extremely frustrating. He said that the shortage of suitable properties and the problems over planning deterred HNWIs moving to the Isle of Man and this was hindering economic growth.

  1. I asked MS about a number of matters which had been raised during my interview with witnesses. I asked if it was correct that no officer had access to his e-mails. MS confirmed this was the case and explained that he communicated with the political members on his gov.im e-mail account and would not want officials to see those communications. There were also confidential e-mails between Ministers. He received and sent e-mails himself and also made his own appointments. He accepted that this caused problems, because of technical difficulties in transferring data and synchronising electronic diaries, but he did not consider it his problem. He was frequently out of the office, but could be contacted by telephone or e-mail and delegated functions to officers and the political members of his department.

  2. I asked MS if he had any suggestions which would prevent overlooking a conflict of interest in the future. He saw this only in terms of planning and suggested that a planning expert should attend CoMin discussions on planning applications to answer questions, rather than CoMin relying on written reports. He pointed out that the Chief Minister had the support of the Chief Secretary, whilst the other Ministers were unsupported. He also thought it would be helpful for Chief Executives to see

[Response truncated — full text is 98,593 characters]