The 'Libel Cost Amendment'

The decision taken last Thursday to suspend the 'libel indemnity' clause in the Constitution was, as I said in my previous post, quite a significant move.

As far as I am aware, Carmarthenshire Council is still the only Local Authority to have given itself this explicit power, back in 2008, and it is a power with a flawed legal basis.

Several references on this blog to the 'libel cost amendment' have had to be removed.

Part of the legal justification for the clause was based on the 'Comninos' decision, mentioned last Thursday and quoted in the auditor's report, the QC advice and even Linda Rees Jones' report.

One point which wasn't mentioned was that that particular indemnity cost Bedford Borough Council taxpayers £500,000.

One reason the Judge in that case refused the District Auditor's appeal was that it would cause financial ruin to the senior officials if they had to pay back the indemnity.

If we go back to May 2008, the libel indemnity amendment was buried at the bottom of a whole raft of other amendments in a report by the Chief Executive, Mark James titled 'The Report of the Chief Executive on Amendments to the Constitution of the Council'.

The 'Summary' of the report refers to whether the combined amendments, (which included, don't forget, the unmentioned libel amendment) had any financial implications for the authority. It says 'NO'. This is despite the author of the report, the Chief Executive, and the former Head of Law, Mr Lyn Thomas, being aware of the Comninos decision.

Neither are there any 'Risk Management' issues or even 'Staffing Implications'. As regards to the last one, they currently seem to be minus one Chief Executive.

The 'Summary' also states that the report required a decision by the Executive Board; I have searched the Exec Board agendas and minutes throughout the relevant time period and can find no mention of the report, perhaps it's so well hidden that it is invisible to the naked eye.

Neither, in 2008, was there any mention of the fact, that less than two years earlier, in October 2006, Carmarthenshire Council had, as we know, adopted the The Local Authorities (Indemnities for Members and Officers) (Wales) Order 2006 without any mention of 'exceptions', 'guidance' or anything else;

As adopted by Carmarthenshire Council 2006. Incidentally, the 2006 Order provides for an indemnity to cover the cost of a criminal defence, but this must be paid back if the officer or Member is subsequently found guilty.

Clearly the 2008 libel cost amendment itself, and the potential implications, were obscured from view and misrepresented in the report. Rather like the pension scam, there is nothing in the explanatory notes, accompanying the report which specifically refers to this highly controversial unique power;

"This document sets out the functions that are delegated to officers, either from the Council, its Committees or via the Executive Board. It is an essential document that ensures the smooth running of Council business, enabling officers to take the everyday operational and management decisions that would otherwise burden elected members.
The document has now been thoroughly reviewed and a variety of amendments are suggested. These amendments fall into the following categories:-

· typographical and grammatical corrections or improvements
· updating legislation
· moving delegations between departments
· transferring delegations from table 5 (see above)
· expanding the detail of a function
· clarification
· emphasising particular requirements

The bullet point which was missing was that they could now, as a council, sue members of the public using an officer as proxy. They could now sue, or threaten to sue, the local press, politicians, campaign groups, critics...the possibilities were endless.

The power granted to the Chief Executive is even listed under the official General Functions of the Head of Paid Service;

The legal advice from James Goudie QC, which was obtained in 2008, and finally disclosed a couple of weeks ago, was that a move such as this was, to quote the Auditor, 'merely arguable', so not in any shape or form a basis for altering something as important as a Council's Constitution.

Here's the entry for the official functions of the Head of Law, which is the same as that for the Director of Resources;

Presumably the 'Counsel's advice' didn't have to be independent either, given that in 2012 Mr Speker supplied it. And given that he was representing Mr James in the case I daresay the action was definitely supported by Counsel's advice.

I believe that the clause is unlawful, plain and simple, on any grounds you like.

I am also of the opinion that the process by which it was quietly inserted to the Constitution was highly questionable.

I remember that councillors complained during that particular AGM in 2008 that they had not received the documents in time, and that in some cases the documents were too bulky to fit through the letterbox and involved a last minute dash to the post office.

Meryl Gravell, who was Leader of the council at the time dismissed their concerns and insisted on urgent approval, there and then, and that if they had a problem with anything they could bring it up at a later date.

Of course after a decision is made by full council, often the only way to challenge it is through a prompt Judicial Review, not by 'bringing it up'. Though often when your body realises it's swallowed something poisonous that is exactly what happens. I think it finally happened last week. Not exactly projectile vomiting but partial regurgitation at least.

If the legal advice from the Welsh Government differs from before, and suggests to the council that the libel clause should be retained in the Constitution, it would be a dark day indeed.

And meanwhile, if it's suspended then it should be removed from the published Constitution...

Whilst I'm on the subject, you may remember from the #daftarrest that, within the pages of Carmarthenshire Council's Constitution, there is no ban on members of the public filming meetings. The ban was imposed because they felt like it. And still remains.

Things have moved on in England though and the Draft Regulations have just been published (I have selected the parts relating to filming, the whole thing can be found here as a pdf document), my emphasis added;

Draft Regulations laid before Parliament under section 43 of the Local Audit and Accountability Act 2014, for approval by resolution of each House of Parliament.

DRAFT STATUTORY INSTRUMENTS 2014 No.

LOCAL GOVERNMENT, ENGLAND 

The Openness of Local Government Bodies Regulations 2014
Admission to and Reporting of Meetings of Relevant Local Government Bodies
Amendment of the 1960 Act 

The 1960 Act is amended as follows— 

“(d) Where a meeting of a relevant local government body is required by this Act to be open to the public during the proceedings or any part of them, any person shall be permitted to attend that meeting or part for the purposes of reporting as defined by subsection (9).” 

“reporting” means— 

(a) filming, photographing or audio recording of proceedings; 

(b) using any other means for enabling persons not present to see or hear proceedings of a meeting as it takes place or later; and 

(c) reporting or providing commentary on proceedings of a meeting, orally or in writing, so that the report or commentary is available as the meeting takes place or later to persons not present.”

I understand though that Eric Pickles and his Transparency Agenda are banned from crossing the Severn Bridge, there are lookouts posted along the M4. If he should managed to get past Cardiff and be spotted approaching the borders of Carmarthenshire, County Hall have granted themselves new powers to have him shot on sight. Apparently though, they are saying that the controversial shoot-to-kill powers already existed under the Local Government Act of 1066, Subsection 94, para 98.... 

Still, grateful for small mercies, we do have our webcasting of full council meetings, there's another one on Friday (7th March). 

Pembrokeshire Council's next instalment is on Thursday (6th March) where we will see if they manage, unlike Carmarthenshire, to officially suspend their Chief Executive, Bryn Parry-Jones and Monitoring Officer, Lawrence Harding.

Recent weeks have definitely proved the point that sunlight is often the best disinfectant. In west Wales anyway.