Update 6th July; Cllr Sian Caiach has written urgently to Lesley Griffiths, Welsh Local Government minister, the full text can be found at the end of this post
Following the EGM on the 27th February council decided to ask for further guidance over their power to grant an indemnity to bring an action for libel on behalf of officers. Specifically of course was the issue of the public funding of the indemnity for Mr James to counter sue me. The Appointed Auditor had deemed it unlawful, and still does.
According to Mr James' bizarre 'newsletter', as per yesterday's post
, he claims that the council 'has subsequently confirmed with Welsh Government that the Council does have the powers to grant such indemnities'.
It does no such thing.
This matter is now on the agenda for next week's full council meeting.
The correspondence with Lesley Griffiths, the Welsh Minister, can be read here
and it does not differ from earlier correspondence from former local government minister, Carl Sargeant. She states that she does not have all the facts and neither has she seen the reports which were given to members. On that basis, I'm not sure she was in a position to give any guidance anyway.
However, she refuses to give legal advice and states that 'the issue of Statutory interpretation is clearly a matter for the courts'
. In other words, the Welsh Government is not in a position to clarify a matter of law such as this, only a court can decide.
She notes the risks associated with relying on the Local Government Act and consequently the 'exceptional circumstances' 'get out' clause.
As Carl Sargeant said in 2010, the council must satisfy itself and others that it has acted within the powers available.
So, as I said, Mark James is wrong and disingenuous, the Welsh Government has not
confirmed that the council has such power.
Linda Rees Jones, the acting head of law, and the Director of Resources, Roger Jones have compiled a report, here
, for next week's meeting. These two officials were the authors of the report (along with contributions from Mr James himself) to the Executive Board in January 2012 where the indemnity was granted. This was the meeting where Mr James not only remained present but also failed to declare a financial and personal interest.
Mrs Rees Jones, as the council solicitor has a decidedly vested interest in all this. If council had agreed that the indemnity was unlawful then this would have serious implications for her, and Mr James of course.
The fact remains though that it was
In addition, the Appointed Auditor has seen the letter from Lesley Griffiths and, not surprisingly, has not changed his view that the indemnity was unlawful. Despite the 2006 Guidance, the 2006 Order itself specifically prohibits the granting of Indemnities to bring actions for libel. Simple.
What the council is relying on is that the 1972 Local Government Act allows for a council to “..have power to do anything (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.
is of the view that the 2006 Order removed once and for all the doubt within the Local Government Act specifically in relation to the funding of libel actions.
opinion brings us back yet again to the issue of 'exceptional circumstances' and whether, by funding Mr James it facilitated the discharge of their functions. In plain English, was I clogging up the wheels of my local council to such a degree that it was in the public's best interest to fund Mr James' counterclaim.
Again I repeat, the Appointed Auditor does not recognise this argument at all, and neither, in my view, does the Welsh Government.
If we look at the council's 'exceptional circumstances' opinion in more detail, it is, as I have said before, deeply flawed. You may also remember that the legal advice (which has not been disclosed) on the merits of bringing the counterclaim was from Mr Adam Speker, the barrister who has represented Mr James throughout the case. Hardly an independent view.
The counterclaim was brought for entirely tactical reasons, and as part of the defence, if you will, not because Mr James felt suddenly concerned about what had been said. The blog posts concerned, (and you will recall part of the counterclaim concerned this very issue of the granting of indemnities which turned out to be unlawful anyway) were written several months prior to the counterclaim. Out of over 700 blogposts only two points were thought to be possibly actionable.
The bringing of the counterclaim also made any early resolution, and therefore a far smaller costs bill, extremely difficult. The action was a calculated step to put pressure on me to withdraw my claim, not because Mr James had suffered any injury to his reputation. For what it's worth, he acquired a CBE shortly before the counterclaim was brought; his reputation was intact.
The 'Derbyshire rule' prevents local authorities (and all government bodies) from bringing libel actions in their own name, this is to prevent any 'chilling effect' on robust democratic debate. Local authorities are also prohibited from using a council officer, in this case Mr James, to get around the Derbyshire rule by 'suing by proxy'.
Mr James confirms in his 'newsletter' that this is exactly what they have done - he bought the counterclaim 'on behalf of officers', clearly contrary to the Derbyshire rule.
Following the EGM, as we know, the indemnity was stopped and the 'clause' in the constitution suspended. It is not clear from the documents for next week's meeting whether the suspension will continue - if this is a matter for council to decide then I implore Member's to remove the clause once and for all. It is unlawful, unethical, and simply immoral.
What is clear is that senior officers are trying to mislead councillors into rejecting the Wales Audit Office report, I hope the Members don't fall for it.
In conclusion I remain of the view that the funding of the counterclaim was indeed unlawful and consequently I am also of the honest opinion that any Court Orders which have arisen from it are void. Mr James may not have brought the counterclaim had the public not been paying for it, I doubt very much if he'd have put his wallet and home on the line over it.
Without the counterclaim the outcome of the whole
case may have been very different. Much of the council's defence revolved around my concerns and questions over the unlawfulness of such indemnities - apparently I was being unreasonable in questioning the 2008 clause in the constitution.
Turns out I wasn't.
Update 6th July;
Cllr Sian Caiach has written to the Welsh Local Government Minister Lesley Griffiths, it is self-explanatory;
At our next full council meeting on the 9th July 2014 (Agenda item no 7 available on the Carmarthenshire County Website) we, all Carmarthenshire Councillors are being asked to approve a report by our Director of Resources and s151 officer, Roger Jones and acting Head of Administration and Law and acting monitoring officer Linda Rees-Jones.
This report confirms the Council Executive's position that the libel indemnity found to be unlawful by the Wales Audit Office, is in fact, lawful. In accepting this report we, as a council, will be endorsing this position held by these officers, in conflict with the Wales Audit Office report that it was, in fact, not lawful.
There appears to be no new evidence presented except your letter of 6th May 2014 to Dave Gilbert. which we have copied in our papers.
It is stated to us for guidance that " The minister's clarification of the Welsh Ministers' view of the Law has been received and is attached. The Welsh Government therefore reiterates its 2006 Guidance on that point.The advice given to the [County Council] Executive Board when it considered the grant of an indemnity to the Head of Paid Service (Mark James) in January 2012 was in accordance with that Guidance.
This opinion by these 2 officers who were themselves instrumental in giving the original guidance to the Executive Board in 2012 is that your letter supports them, and does not endorse the Wales Audit Office Report saying the payment was unlawful.
I myself do not agree with this interpretation, but as most of the Councillors do not have experience of reading legal reports they may not even try to wade through the rambling "explanation" in their report of why these officers were right to promote the policy of supporting Mr James' in a libel claim against a blogger, and the reasons they regard your letter as agreement and confirmation that they were right to do so.
In 2012 we backbench Councillors were not given copy of the legal advice from James Goudie  which supposedly supported the decision to pay Mr James' legal costs. When eventually given to us in the WAO report, it did no such thing.
We had been deliberately mislead.
Now the same officers who advised the executive in 2012 are asking us to approve a report which exonerates them on the basis of your letter. I ask that you urgently make your true position known.
A Labour led Council is otherwise very likely to vote to approve this report rubbishing the views of the Welsh Audit Office and therefore setting a precedent for Welsh Councils to take libel actions against bloggers and others using their officers as proxies, in the same way as Mr Mark James was used by the then Council Leader, Meryl Gravell to try to silence a critic.
Cllr Sian Caiach.
People First /Gwerin Gyntaf
Carmarthenshire County Council member for Hengoed Ward