Following on from recent posts, This blog has had site of further correspondence between Cllrs Sian Caiach and Arthur Davies and the Chief Executive, Mr James. This is, of course, related to Wednesday's (Nov 9th) meeting of full council and the refusal to place on the Agenda their motion for a No Confidence vote in council leader Meryl Gravell originally submitted in time for October's meeting. Further to the Chief Executive's previous letter (which can be read in the second of the posts mentioned above), the two councillors asked for some clarification;
Dear Mr. James
Notice of Motion
Thank you for your letter of November 1 which is rather confusing so perhaps you would be kind enough to clarify a few points;
1. Just to confirm dates, could you please confirm the date that the council first received our notice of motion?
2. Whilst you indicate that you have obtained legal advice you have not included a copy of the legal advice referred to, kindly correct this oversight by return. On sight of the council’s legal advice we will then obtain pro bono legal advice.
3. In your last paragraph and I quote,
"Given the controversy you have sought to engender on this matter, I have copied this response to all three Group Leaders, given it was they who wanted the change made by the council’s constitution and instructed the officers to review it." Could you please indicate when and where their request was made supplying the council minute that authorised it?
Finally, we note your apology for the delay and anticipate in future your responses will be prompt and helpful. In the interim as we do not agree with your position and as you have supplied no clear evidence to omit this issue on the agenda we insist that the issue is added to the agenda.
Yours sincerely
Cllrs Caich and Davies
Mr James has responded at some length (and no less confusingly) but fails to include any legal advice supporting his opinion, perhaps he hopes the other recipients will give up half way, or quite possibly drift off before they realise there's no punchline ie legal advice.
Yet again the two Cllrs are reprimanded for not going directly to him for advice on all procedural matters; I would have thought they have every right to seek independent legal advice in fact, under the circumstances it is clearly advisable to do so.
There is no real explanation as to why the motion is being rejected. Mr James somehow regards the new rules as retrospective because the new constitution was democratically voted in. An opinion, but not obviously a legal one. He is of the opinion that a motion submitted a month in advance under the old constitution is not acceptable to him. He uses a council procedure rule which suggests that he believes that a motion of no confidence in the Council leader is not appropriate for discussion in that meeting, I would have thought full council would be an entirely appropriate place - in fact the only appropriate place. The motion is described as "incongruous" [definition; not congruous or agreeing, not mixing well together etc] so presumably not welcome in a council requiring consensus?
If there is no need for written or external legal advice to be sought by the Council, as apparently all advice is usually given internally through unrecorded discourse with in-house lawyers, how, as councillors can they be legally informed or scrutinise decisions? They are being asked to accept that undocumented legal advice given to the Chief Executive cannot be revealed to or checked by councillors, yet it is being acted upon? And, ironically, the two Councillors are criticised for suggesting that officers, not councillors, run this council....
Significantly, the Council's Constitution, as published on their website remains 'un-amended' as of today's date (7th November) with regards the requirement for 7 councillors to sign a motion.
Anyway, for the record, here's Mr James' response;
From; Mark James
Sent; 07 November 2011 10:00
To; Cllr. Sian M Caiach; Cllr. Arthur Davies
Cc; Cllr. Meryl Gravell; Cllr. Pamela A Palmer; Cllr. Peter Hughes-Griffiths; Cllr. Kevin Madge; Cllr. Marion P Binney; Cllr. John P Jenkins; Cllr. Huw Lewis
Subject: FW: Notice of Motion -People First Group's response to Chief Executive second rejection of our Notice of Motion in his letter date 1st November 2011
Dear Cllrs Caiach and Davies,
I refer to the three separate e mails that you have sent regarding this matter. I note that you refer above to a second rejection of your Notice of Motion. I am a little confused over this as this is the first and only time you have submitted a Notice of Motion in this format. I have not previously seen a Notice of Motion in these terms and therefore have not previously rejected such.
May I with respect remind you of my previous correspondence in which I asked that any communication on procedural matters be referred to my office. Neither Mr Davies nor any other officers will be able to assist with such matters and they are being referred to my office, as per my instruction. In order to avoid delay, please send any such questions you have direct.
As set out in my response to Cllr Davies, there is no provision in the Council’s constitution regarding amendments by Council. There is certainly no legal requirement to refer any such procedural amendments to the Secretary of State, Minister or anyone else. Whoever has given you this advice is mistaken.
Given the lack of specific provision and indeed lack of precedent, it is arguable probably both ways as to when such decisions ought to be implemented. Notices of Motion are usually submitted within the life cycle of Council meetings when the rules are clear. Your Notice, however, was submitted far in advance of your identified Council meeting in the knowledge that the rules were to be debated within days, and indeed the rules did change within days (and well in advance of the Council Meeting you were targetting). Whilst your Notice fulfilled the requirements of the rules subsisting at the time of submission they did not fulfil the rules applying to the meeting in question. CPR 12.4 provides that I shall not accept a Notice of Motion which cannot be considered "at the meeting for which it is given". Your Notice of Motion did not fulfil the conditions applying to Notices to be considered at the Council Meeting of the 9th November. Given that ambiguity, it would be highly incongruous for an officer of the Council to go against the explicit democratically agreed view of Council and follow a procedure for a particular meeting, which has been amended, specifically stopping that action taking place.
I am surprised that you would wish me as an officer to follow such a course, given your highly personalised attacks on officers recently for ‘leading the Council’ and not doing what you as elected members wish to see. Perhaps, and forgive me for being somewhat forthright, but you only wish officers to do this when it suits your purposes. On this occasion, it does not suit your purposes, so you wish me to frustrate the will of Council. With respect, you cannot have it both ways.
I have made my decision on the matter. It is perhaps now academic with regard to the next Council meeting. It is open to you to re-submit the Notice of Motion, with the requisite number of signatures for the next meeting of Council.
With regard to legal advice, when appropriate, such advice is taken often internally of course and through discourse with lawyers. There is no need for written or external advice and that is the case on this occasion.
With regard to requests for reports to be prepared, such requests are often made in advance of meetings, when officers are requested to prepare papers. You are well aware of the democratic route this report took as you have asked and had a response from my legal colleagues on the matter.
Regards.
Yours sincerely
Mark James
Chief Executive
Any the wiser....?!
Dear Mr. James
Notice of Motion
Thank you for your letter of November 1 which is rather confusing so perhaps you would be kind enough to clarify a few points;
1. Just to confirm dates, could you please confirm the date that the council first received our notice of motion?
2. Whilst you indicate that you have obtained legal advice you have not included a copy of the legal advice referred to, kindly correct this oversight by return. On sight of the council’s legal advice we will then obtain pro bono legal advice.
3. In your last paragraph and I quote,
"Given the controversy you have sought to engender on this matter, I have copied this response to all three Group Leaders, given it was they who wanted the change made by the council’s constitution and instructed the officers to review it." Could you please indicate when and where their request was made supplying the council minute that authorised it?
Finally, we note your apology for the delay and anticipate in future your responses will be prompt and helpful. In the interim as we do not agree with your position and as you have supplied no clear evidence to omit this issue on the agenda we insist that the issue is added to the agenda.
Yours sincerely
Cllrs Caich and Davies
Mr James has responded at some length (and no less confusingly) but fails to include any legal advice supporting his opinion, perhaps he hopes the other recipients will give up half way, or quite possibly drift off before they realise there's no punchline ie legal advice.
Yet again the two Cllrs are reprimanded for not going directly to him for advice on all procedural matters; I would have thought they have every right to seek independent legal advice in fact, under the circumstances it is clearly advisable to do so.
There is no real explanation as to why the motion is being rejected. Mr James somehow regards the new rules as retrospective because the new constitution was democratically voted in. An opinion, but not obviously a legal one. He is of the opinion that a motion submitted a month in advance under the old constitution is not acceptable to him. He uses a council procedure rule which suggests that he believes that a motion of no confidence in the Council leader is not appropriate for discussion in that meeting, I would have thought full council would be an entirely appropriate place - in fact the only appropriate place. The motion is described as "incongruous" [definition; not congruous or agreeing, not mixing well together etc] so presumably not welcome in a council requiring consensus?
If there is no need for written or external legal advice to be sought by the Council, as apparently all advice is usually given internally through unrecorded discourse with in-house lawyers, how, as councillors can they be legally informed or scrutinise decisions? They are being asked to accept that undocumented legal advice given to the Chief Executive cannot be revealed to or checked by councillors, yet it is being acted upon? And, ironically, the two Councillors are criticised for suggesting that officers, not councillors, run this council....
Significantly, the Council's Constitution, as published on their website remains 'un-amended' as of today's date (7th November) with regards the requirement for 7 councillors to sign a motion.
Anyway, for the record, here's Mr James' response;
From; Mark James
Sent; 07 November 2011 10:00
To; Cllr. Sian M Caiach; Cllr. Arthur Davies
Cc; Cllr. Meryl Gravell; Cllr. Pamela A Palmer; Cllr. Peter Hughes-Griffiths; Cllr. Kevin Madge; Cllr. Marion P Binney; Cllr. John P Jenkins; Cllr. Huw Lewis
Subject: FW: Notice of Motion -People First Group's response to Chief Executive second rejection of our Notice of Motion in his letter date 1st November 2011
Dear Cllrs Caiach and Davies,
I refer to the three separate e mails that you have sent regarding this matter. I note that you refer above to a second rejection of your Notice of Motion. I am a little confused over this as this is the first and only time you have submitted a Notice of Motion in this format. I have not previously seen a Notice of Motion in these terms and therefore have not previously rejected such.
May I with respect remind you of my previous correspondence in which I asked that any communication on procedural matters be referred to my office. Neither Mr Davies nor any other officers will be able to assist with such matters and they are being referred to my office, as per my instruction. In order to avoid delay, please send any such questions you have direct.
As set out in my response to Cllr Davies, there is no provision in the Council’s constitution regarding amendments by Council. There is certainly no legal requirement to refer any such procedural amendments to the Secretary of State, Minister or anyone else. Whoever has given you this advice is mistaken.
Given the lack of specific provision and indeed lack of precedent, it is arguable probably both ways as to when such decisions ought to be implemented. Notices of Motion are usually submitted within the life cycle of Council meetings when the rules are clear. Your Notice, however, was submitted far in advance of your identified Council meeting in the knowledge that the rules were to be debated within days, and indeed the rules did change within days (and well in advance of the Council Meeting you were targetting). Whilst your Notice fulfilled the requirements of the rules subsisting at the time of submission they did not fulfil the rules applying to the meeting in question. CPR 12.4 provides that I shall not accept a Notice of Motion which cannot be considered "at the meeting for which it is given". Your Notice of Motion did not fulfil the conditions applying to Notices to be considered at the Council Meeting of the 9th November. Given that ambiguity, it would be highly incongruous for an officer of the Council to go against the explicit democratically agreed view of Council and follow a procedure for a particular meeting, which has been amended, specifically stopping that action taking place.
I am surprised that you would wish me as an officer to follow such a course, given your highly personalised attacks on officers recently for ‘leading the Council’ and not doing what you as elected members wish to see. Perhaps, and forgive me for being somewhat forthright, but you only wish officers to do this when it suits your purposes. On this occasion, it does not suit your purposes, so you wish me to frustrate the will of Council. With respect, you cannot have it both ways.
I have made my decision on the matter. It is perhaps now academic with regard to the next Council meeting. It is open to you to re-submit the Notice of Motion, with the requisite number of signatures for the next meeting of Council.
With regard to legal advice, when appropriate, such advice is taken often internally of course and through discourse with lawyers. There is no need for written or external advice and that is the case on this occasion.
With regard to requests for reports to be prepared, such requests are often made in advance of meetings, when officers are requested to prepare papers. You are well aware of the democratic route this report took as you have asked and had a response from my legal colleagues on the matter.
Regards.
Yours sincerely
Mark James
Chief Executive
Any the wiser....?!
4 comments:
If Mark James quotes legal advice then he has to say who provided the advice and under what legal precedent that advice has has cited, this clearly has to be written advice for it to be agreed with or refuted, otherwise it is just hot air.
There would seem to be a case here for a complaint to the ombudsman of misconduct. The notice was rejected last time on very questionable grounds, and now he's saying the goalposts have moved, so it can't be submitted this time either.
Is this what we are paying the chief executive for - Toytown lawyer game playing?
Mark James refers to democracy twice throughout his response; he clearly has given a new meaning to the word as it appears to relate to his and only his opinions. As for his explanation; as usual he resorts to personal attacks and ambiguities. How can one respect such a man when he clearly has no respect for members of the public and obviously none for councillors. Where are the silent majority? Underneath him?
His statement "I have made my decision on this matter" sums it all up really doesn't? In fact, you could apply this statement to most council business.
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