Wednesday 5 February 2014

"Where do we go now Mr James?"

Update 20:38
Plaid Cymru Carmarthenshire have issued a statement this evening in response to the publication of the council's legal advice. Full text at the end of this post. 
The council have also issued another statement late this afternoon accusing the WAO of 'spreading misinformation'....

Update 20:16 
Simon Thomas AM for Mid and West Wales asked an emergency question in the Senedd today relating to the auditors findings. He called for the immediate suspension of Mark James and his counterpart in Pembrokeshire, Bryn Parry Jones. He asked for the support of the Labour minister for local government but she said she couldn't comment as the police were liaising with the CPS....


 The council has today published the two pieces of legal advice which it hopes will 'vindicate' those involved in the unlawful libel indemnity. In my opinion, they do no such thing, and they have both been seen by the auditor during the course of his investigation. They can be found here on the council website.

The advice from 2008 can be simply dismissed, and the second, commissioned 22 months after the indemnity was approved, and specifically to justify, retrospectively, the action identified as unlawful, does not, to give just one example, recognise the fundamental principle and purpose of the 2006 Order.

The Order, which came into force in England in 2004 and Wales in 2006, was issued after a lengthy consultation period to remove, once and for all, all the grey areas such as the power under the Local Government Act 1972 to indemnify officers to bring libel claims. It was also a result of the case involving Bedford Borough Council where taxpayers picked up a bill for £500,000 after that council indemnified three senior officers. The council are using that case to justify their actions. The judge's advice in that case, was that this was a one off and shouldn't happen again. The auditor quotes from it in his report (known as the Comninos case). 

And to quote Mr James himself after this Order was adopted by Carmarthenshire Council "A county council cannot take defamation action on behalf of its officers" and "the 2006 Order specifically prohibits local authorities from indemnifying officers to bring proceedings".  He also mentioned that other local authorities who had tried to invoke wider powers to bring proceedings had been "challenged" by the Audit Commission.

The South Wales Guardian reports on the latest statement concerning the legal advice and notes that the advice given by barrister Adam Speker will not be published by the council. We understand that an oral version of this advice was given to the Executive Board at that meeting, with Mr James present throughout, of course. This was not independent legal advice though as Mr Speker had already been engaged by the council and Mr James to represent them in the case, which as you will know, is still ongoing. 

Turning again to today's South Wales Guardian, it has again illustrated its independent spirit and published two opinion pieces, both of which I have copied in full below;

South Wales Guardian Opinion

Gerald Kaufman famously described Labour’s manifesto ahead of the 1983 General Election as “the longest suicide note in history”.

The statement put out by Carmarthenshire County Council on Thursday may one day be viewed in the same light.

Connoisseurs of County Hall’s press releases will be familiar with the combative prose, yet even they must have been startled by its tone which seemed to imply that the auditor who has deemed two transactions unlawful should keep his nose out of the council’s affairs.

Then this week the council took a swipe at MP Jonathan Edwards for having the temerity to call for a police investigation – a reasonable request under the circumstances, many would think.

What the auditor’s report has again highlighted is how this local authority is so officer-led.

Chief executive Mark James is a civil servant who enjoys a public platform quite unlike his counterparts in, say, Pembrokeshire or Ceredigion. In fact, his overall profile is that of an elected representative – and some would say he acts like one as well.

One senior council figure claimed this week that the current crisis would – like the current storms – soon blow over.

We believe that the next few weeks will be even more turbulent.

Where do we go now, Mr James?

The Wales Audit Office’s damning reports — and make no mistake, they are damning — into the activities of Carmarthenshire County Council make for grim reading.

The reports make clear that there were some major areas of concern regarding the authority’s decision-making processes and procedures when it came to approving the use of taxpayer money to fund chief executive Mark James’ libel counterclaim against blogger Jacqui Thompson and then, completely separately, to allow Mr James to withdraw from its standard staff pension scheme to find himself a better deal.

While the legal scrutinising of such decisions, and the processes by which the council’s executive board came to its conclusions, may well be beyond the average man in the street, what the reports, and the council’s responses to them, illustrate is an authority whose leadership views itself as a separate entity above and beyond its elected councillors, its staff and those it is meant to serve — the taxpayers.

“We are all in it together” has been Chancellor George Osbourne’s rallying cry to a nation battling the global economic crisis.

The leadership of Carmarthenshire County Council, it seems, thinks differently.

From the Jacqui Thompson libel case, to the now infamous Sainsbury’s press release of September 2012 when the council accused the MP and AM of deliberately sabotaging investment in the county, to the blacklisting of the South Wales Guardian for daring to raise its head above the parapet and on to Mr James’ pension arrangements, the upper echelons of Carmarthenshire County Council have time and again shown their belief that normal rules do not apply to them.

One of the most startling aspects of the Audit Office’s reports is the council’s response to issues raised.

Concerns regarding Mr James’ pension-plan “pay supplement” — deemed “contrary to the law” by the auditor — were met, according to the report, with responses such as: “It is not the traditional role of the auditor to enforce discrimination law” and then “It is not for the auditor to assert claims not made by any individual”.

Rather than address the lawfulness or otherwise of its decisions, Carmarthenshire County Council instead opted to go on the attack and tell the auditor — the public sector watchdog for Wales — to keep his nose out.

The auditor’s role is to ensure that the people of Wales know whether their money is being managed wisely, yet the council appears to have repeatedly told him that the spending of public funds in Carmarthenshire is “none of your business”.

Unfortunately for Mr James and the executive board, it is the auditor’s business — and it is our business too, because it is our money.

While the council is no doubt correct with its assertion that no extra public money was spent on the pension “pay supplement”, cash which would normally have been paid into Mr James’ Local Government Pension Scheme fund was simply handed to the council’s chief executive to do with as he saw fit.

Whether that money went into some high-yield investment scheme beyond the reach of us mere mortals or found a home in a completely legal offshore tax haven, we will no doubt never know.

One thing is undeniable, however.

The council’s executive board, either with or without Mr James’ direct encouragement, engineered a means by which he would not be liable for the same tax duties imposed on the rest of us.

While the county’s taxpayers faced, and continue to face, swingeing cuts to local authority services, the head of the authority, with the backing of the executive board, has been indulging in a tax avoidance scheme.

Thanks to the actions of the executive board, Mr James’ pension, on top of his £180,000 annual salary, supplemented by a £20,000 payment for his role of returning officer at every election held in Carmarthenshire, is not subject to the same rules and regulations applied to the rest of us.
His earnings exist in another place, beyond the aspirations of the rest of us.

While the politicians and lawyers can argue over the differences between “illegal”, “unlawful” and “contrary to the law”, all the rest of us really want to know is this: Where’s the money, Mr James?

Update 20:38: Press Release from Plaid

Plaid responds to the Council’s publication of legal advice

Responding to the statement by Councillor Kevin Madge in which he publishes two sets of legal advice regarding the decision to grant an indemnity to the Chief Executive, Deputy Leader of the Plaid Cymru opposition Councillor group, Councillor Tyssul Evans said: 

"We welcome this rare ritual of transparency from the Council's leadership.  The Council's statement now refers to three sets of legal advice - The first is from 2008 which strongly advised the Council against granting an indemnity to cover the legal action of the Chief Executive. 

“The second refers to advice given verbally to the Executive Board prior to making the decision. We have difficulty in accepting the independence of this verbal information as there is no record of it being given, and it was from the same QC who was representing the Chief Executive in Court. 

“The third piece of advice relates to information provided 22 months after the Executive Board made its decision to grant the indemnity.  Unless the Executive Board has fortune telling abilities we would suggest that this legal opinion is irrelevant in relation to the findings of the Wales Audit Office.

 "Furthermore, the Wales Audit Office saw both sets of legal advice and still concluded that the actions of the Council's leadership were unlawful.  The Council has not provided any new evidence.

 "The Leader of the Council has promised to publish all information relating to the Wales Audit Office reports.  We therefore call on him to now publish in full the report presented to him, former Leader Meryl Gravell, Deputy Leader Pam Palmer and the rest of the Executive Board on which the 'unlawful' decision to indemnify the Chief Executive's legal costs was based. 

 "Regarding the 'unlawful' pay and pension changes, we call upon the Council leader to publish the report by Total Rewards Project Ltd. - the content of which led the Executive Board to approve the Chief Executive having his pension contributions paid directly to him.  We further call for publication of the legal advice the Council received towards the end of last year which led to the arrangement being withdrawn.

"As things stand, the Council leadership has yet to provide the magic bullet which vindicates the astonishing position it is taking in contesting the findings of the independent Audit Office."


Tessa said...

I would like to see the detailed briefing given to both the QC's who provided their advice. Were they aware of the triviality of the wording of the alleged defamation? Or were they advising in principle? Ignoring the judge's peculiar interpretation of the wording (not to mention Jacqui's motives - I wonder what he's thinking now?), should not the decision to fund have considered the actual amount of funding to be provided in relation to the nature of the damage? Or were both QC's happy to give the required (I suspect more than simply requested) advice and then invoice for it?

Anonymous said...

Legal advice: if you don't like your first advice, just keep looking - someone will eventually give you what you want.

And where was the council's own legal officer when all this was going on? What exactly is/was that officer being paid for? What was HER initial advice? Who was it provided to, when and why?

caebrwyn said...

Anon 18:16 For information; The Head of Law and Administration and Monitoring Officer, until his retirement late in 2011 was Mr Lyn Thomas. Linda Rees Jones has been acting in the role since then.