Friday 8 November 2013

'Unlawful' payments - Email from Leader to Councillors

Below is an email from council leader Kevin Madge dated 4th November 2013 addressed to all councillors. It confirms that, despite promising a 'full debate', there will actually be no debate at all over the 'unlawful' payments scandal at next Wednesday's meeting;

To all elected members of Carmarthenshire County Council

Dear Colleague,

Wales Audit Office Review of Indemnity for Libel and Senior Officers Pay and Pensions

I promised to keep members up to date with developments on the above matter, as reported recently to the Audit Committee.

It had been my intention to arrange for a full report on both matters at next week’s meeting of Full Council. In the meantime I along with my colleagues on the Executive Board, and a number of senior officers who have been involved in advising and presenting reports on the two matters, have received correspondence on both matters from the Wales Audit Office which makes it necessary to postpone this report.

We have been asked to respond to two separate detailed ‘consideration documents’, to comment on the factual accuracy of the contents and to offer any observations thereon. We are required to respond on or before Friday 22 November.

Specifically the letter relating to each report states that:

The consideration document is confidential and has been provided to you to enable me to confirm the factual accuracy of it’s content. Under Section 54 of the Public Audit (Wales) Act 2004 (The Act) you are not permitted to share this document, or extracts from it, with any third party. Unauthorised disclosure is an offence under the Act and could prejudice the audit process.

It would be impossible to report on these matters at the present time without dealing with the same detailed information contained in the documents and for this reason, having taken advice on the issue, I will need to postpone reporting the matter to full council for the time being. I have made the Wales Audit Office aware of this decision and they concur that this advice is sound.  To do otherwise would present the danger that it might ‘prejudice the audit process’ as suggested in the warning from the Auditor’s letter quoted above.

I would assure you, however, that a report will be made to Council as soon as it is permissible to do so and, as promised, I will inform you of any significant developments in the meantime.

Yours faithfully

Cllr Kevin Madge


The ongoing cost to both Carmarthenshire and Pembrokeshire Councils of the jointly commissioned external legal advice to defend the pension payments are not known. 

It is not known either if Carmarthenshire County Council have retained a different legal expert for advice regarding the libel indemnity. 

However, at the last meeting of Pembrokeshire Council questions were asked regarding the legal advisor and associated costs over the pension payments, the draft minutes record the response; 

"The Leader responded that the Head of Legal Services at Carmarthenshire County Council had retained Mr Timothy Kerr QC to give advice on the matter. This Authority’s Head of Legal and Committee Services had then joined with his colleague in submitting joint instructions to Mr Kerr. 

Mr Kerr's costs had not been settled as he continued to be retained. 

The relevant legal and financial officers of this Authority did not time record their various activities and internal Officers were at Director or Head of Service level. 

In response to a supplementary question by Councillor Miller, the Leader stated that as discussions were still ongoing with the WAO, it was not possible to make any assumption on the length of time for the outcome of those discussions."


Mr Mustard said...

Contrast two things;

happy to accept WAO advice that report to council not possible at this time but

not happy to accept WAO advice that payments unlawful.

Anonymous said...

Oh yes.Typical!

Anonymous said...

Did Mr Madge receive the "correspondence on both matters from the Wales Audit Office" before or after he spoke to the SW Guardian?

Emlyn Uwch Cych said...

Wow! Kevin's language has suddenly turned clear, accurate and stylish; from having 2 second languages to displaying a clear grasp of the Queen's English.

GCSE next year, now, Kev?

caebrwyn said...

I would think that these 'consideration reports' are in fact the Public Interest Reports in draft form.

John Brace said...

The quote from the letter about s.54 of the Public Audit (Wales) Act 2004 is selective and misleading.

S.54 of the Public Audit (Wales) Act 2004 specifies ten circumstances under which information can be disclosed in ss.2 the most relevant one being "with the consent of the body or person to whom the information relates;"

Therefore Carmarthenshire County Council could chose to give its consent to releasing the information, yet by postponing the report it seems Kevin Madge is removing the opportunity for the Council to decide to do so (or not) at its meeting on the 13th November.

On a more interesting note Kevin Madge doesn't refer to s.54A which was added to the Act by the The Public Audit (Wales) Act 2004 (Relaxation of Restriction on Disclosure) Order 2005 .

This states "(2) A person who is, or acts on behalf of a person who is, a public authority for the purposes of the Freedom of Information Act 2000 (c. 36), may disclose any such information –

"(a)in the circumstances in which he would (but for section 54(2A)) be authorised to do so under section 54(2);
(b)in accordance with section 145C(5) or (8) of the Government of Wales Act 1998; or
(c)in any other circumstances, except where such a disclosure would, or would be likely to, prejudice the effective performance by such a person of a function imposed or conferred on the person by or under an enactment."

Therefore why don't you make a FOI request for the letter from the Wales Audit Office and reports and see what happens next?

Anonymous said...

Good research John Brace. Well done!

towy71 said...

John Brace seems to have laid out a concise argument that refutes CCC
PR, sorry, Kevin Madge's email; is it any surprise really??

caebrwyn said...

@John Brace
Thanks for your comments and very interesting info which is noted. Unfortunately this is a local authority that decided that the subject of public toilets was such a threat to national security that the report couldn't be released and it had to be discussed behind closed doors.
It is clearly doing everything in its power to keep the lid on the unlawful payments scandal. For how much longer remains to be seen.

John Brace said...

@caebrywn The local authority I live in is currently going through a 3 month monitoring period of their FOI responses by the Information Commissioner, so having had many FOI requests turned down (and one that's been appealed to the Information Commissioner awaiting a decision for the past few months) I know about the war of attrition that a lot of local authorities seem to wage with FOI requesters in the hope they'll just give up.

To give you a taste of how bad things were before the monitoring, the Information Commissioner has set the local authority here a target of responding to 85% of requests within the required twenty day period. They have met their 85% target by refusing many of my requests using flimsy exuses for exemptions. Whereas before when internal reviews invariably always upheld the original decisions, now when the internal reviewer agrees that the original exemption was spurious or goes counter to already agreed cases, they just replace it with another exemption, knowing that the Information Commissioner will take months to reach a decision!

I am beginning to suspect that they are not running an "applicant blind" FOI system and deliberately turning down requests that they don't want blogged about. Could that be the reason for your FOI problems with Carmarthenshire?

caebrwyn said...

@John Brace I wouldn't like to speculate on Carmarthenshire council's reasoning...I currently have a complaint with the ICO too.
Carms Council are a bit sensitive about FoI; for instance a very senior officer contacted a local paper a while ago, and demanded that a journalist's FOI request relating to senior officers' expenses be withdrawn. It was.

John Brace said...

Try asking through FOI for a copy of the senior officer's register of interests if you want to cause a fuss! A former employee of the local Council did it in my local area and it took a decision notice from ICO to get the information out of them. Even then they left a lot of officers out and had to be prompted to cough up the whole list. A number of interests they refused to divulge to the public though on data protection grounds....

caebrwyn said...

@John Brace
It's never my intention to cause a fuss, but I did ask for that particular register back in 2011. It took six months and a diversion to the ICO. In the end the information was, as your example, piecemeal. Carmarthenshire Council doesn't even publish the Register of Members' Interests online, it has to be viewed, under supervision, in a small office in County Hall. As we are in Wales, spending details over £500 are not published either.

Earlier this year someone made a request for the officers' report to the Executive Board recommending the libel indemnity, it was refused.