Monday 19 December 2016

Cadno's Complete Contempt - from this week's Carmarthenshire Herald

Here, to reach the parts that the printed version of the Carmarthenshire Herald doesn't, is this week's Cadno opinion piece;

Cadno’s Complete Contempt

In February 2002, Donald Rumsfeld, the then US Secretary of State for Defence, stated at a Defence Department briefing: ‘There are known knowns. There are things we know that we know. There are known unknowns. That is to say, there are things that we now know we don't know. But there are also unknown unknowns. There are things we do not know we don't know.’
Poor Donald 
Rumsfeld rather had the mickey taken out of him for that little lot, but careful examination suggests that what he said has both logic and is a sound way of testing hypotheses. You insert a hypothesis in one end of Rumsfeld’s statement, and at the other end it emerges either intact or in pieces. 
Here’s a hypothesis to test, readers: never mind what councillors and the public think, Carmarthenshire County Council, as a corporate entity, has no interest in
attempting to extract itself from what has rightly been described as a ‘toxic’ situation with blogger Jacqui Thompson. Cadno is not chewing over what Mr Justice Tugenhadt said and whether he was right, wrong, or both. Neither is Cadno remotely interested in how the case ended up in court in the first place. You play the ball from where it lies, not where you want it to be. We are now at the sticky end of litigation, everything that has been said has been said; everything that has been done has been done. Now is the time to pay the piper for the dance. 
The Council has no interest in the public relations cost of its present situation and, if one accepts that Mr James’s action against Mrs Thompson for damages is entirely a private matter (and Cadno is proud to have kept a straight face writing that phrase), then it has no interest in how, when, or whether Mr James chooses to
extract his pound of flesh. 
Except it does. 
Mr James would not have defended Mrs Thompson’s claim against him – offers to settle had been made – and would not have launched a counterclaim without the Council writing their Chief Executive a blank cheque. 
Moreover, the complaint by Mrs Thompson would not have arisen had not someone at the Council authorised Mr James to write the comments about Mrs Thompson and her family that he put – in his own name but with his employer’s authorisation – on another blog. 
The Council will not say who gave Mr James that authorisation, but three scenarios present themselves:
(1)   A senior councillor, possibly on the Executive Board, gave him the nod;
(2)   Mr James used his delegated powers to grant himself the authority to do so;
(3)   Some unminuted meeting took place in which a combination of senior officers and councillors signed off on the deed. 
Now, we know – because it is minuted (and the minutes have not been challenged) – that Mr James was authorised ‘by the Council’. 
That rules out number one, because even a leader of the council could not authorise Mr James to do as he did; we can rule out number two, because that would be an unconscionable action for which Mr James would already have been disciplined, if not dismissed; that leaves number three. The presence of councillors – or at least one shy and retiring type – would also be essential for three to work, due to the problem of officers using ‘delegated powers’ to bind the council to a course of action that they would or should have realised on any assessment would have led to at least the threat of litigation. 
So, the Council is as bound up in Mr James’s legal travails as Mr James is. 
Last week, the Council – through the unlikely personage of Eryl Morgan (aka Linda Rees Jones) – claimed that Mr James’s action was wholly private in nature. 
Don’t make me laugh, readers.
That’s comedy gold on its own. 
What the Chair of the Council determined (hahaha) is that the Council should not discuss matters in which it has spent the money for the benefit of a private individual who just happens to be its most senior employee. 
But what got Cadno was the suggestion that somehow even bringing forward the matter for discussion could constitute contempt of court by Cllrs Alun Lenny and Cefin Campbell. 
Umm. You’re having a laugh, is Cadno’s response to that.
‘Publication made as or as part of a discussion in good faith of public affairs or other matters of general public interest is not to be treated as a contempt of court
under the strict liability rule if the risk of impediment or prejudice to particular legal proceedings is merely incidental to the discussion’. Contempt of Court Act 1981 s5. 
Obviously an aspect of statute law of which Cllr Eryl Morgan was unaware. Cadno suggests asking Cllr Morgan about it when you see him out and about. Your discussions of what is and is not contempt of court with Eryl Morgan should be refreshing and enlightening. 
Of course, Eryl Morgan might have had in mind the provisions Part 81.12 of the Civil Procedure Rules, expressly ‘interference with the due administration of justice
in connection with proceedings’. But that wouldn’t even come close to biting in the case of the councillors’ rejected motion. 
Thankfully, Cadno is prepared to help Eryl Morgan out. In 2012, Appendix F of the Law Commission’s report 209 provided a list of all the statutory and regulatory
provisions under which it is possible to commit contempt of court. 
The ‘Thou Shalt not Annoy Senior Council Officers Act’, or the ‘Sabre-Rattling (Causes) Act’ were not among them. 
With nigh on a quarter of a million pounds of public money spent on court costs in support of Mr James (including the counterclaim costs, which seem to have vanished), plus hundreds – if not thousands – of officer hours spent on the matter, the idea that there is no public interest in what happens next is bonkers. The idea that a public employee who could benefit to the tune of £35K in his own right as a result of that money being spent should not have his promise to remit the money to his employer (curse those unchallenged minutes!) discussed in public by the body which bankrolled him is similarly crackers. 
Any suggestion that contempt of court is even possible in these circumstances is not only nonsense but nonsense on stilts. Nonsense on stilts on stilts on top of scaffolding poles. 
The law of contempt, however carelessly waved around, is not a cloak behind which a body like the Council can try and hide things it does not want discussed. 
Now we look at those known unknowns, readers: how many councillors are prepared to do something about it?
(Reproduced with permission)

See also recent posts on this blog, including, The Vice-like grip and from Cneifiwr's blog, Contempt and Mr James's legal glacier


I'd also like to add the following - an observation, received from a correspondent, and included in a letter to a Member of Parliament;

"Whenever I think that this matter has reached rock bottom and can’t possibly sink any lower events disabuse me of this conclusion.  There is a sinister irony of Orwellian proportions when democratically elected representatives invoke the rule of law to undermine it.  These acts of abuse and, put in religious terms, desecration of the rule of law, are risible and reprehensible. This travesty applies to the denial of Sian Caiach’s question and the denial to allow the motion to be put by Cllrs Lenny and Campbell; a motion that was limp and pathetically inadequate and yet even this miserable offering roused the angst and paranoid thuggery that masquerades as democracy in County Hall.  
I am not privy to every aspect of the current chief executive’s behaviour, nor his performance in carrying out his public function, but from what I know of it, he seems to have a cavalier approach to compliance with the law and an unhealthy disrespect for democracy.  As such he should be dismissed for gross misconduct...."


Ken Haylock said...

...and more particularly, why isn't the Assembly doing it's damned job? Clearly if contempt is literally legally impossible in this case, then the monitoring officer (who 'advised' the chair) is demonstrably failing to perform her duties properly/competently, and at the very least, if nothing else, the Assembly Government should use its powers to put a commissioner in to take over the function of monitoring office & head of legal immediately, to at the very least afford the elected councillors an opportunity to hold the executive of the council to account.

If it is the settled view of Welsh Nationalist Party that Wales should be granted more autonomy and control over its own affairs, part of that is demonstrating that an independent Wales would still guarantee democracy & the rule of law, as well as be under good governance. However, nothing says 'Welsh Speaking Banana Republic coming soon' like what has happened, and is happening in Carmarthenshire or the WAG's grossly inadequate response to same. The WAG were all over Anglesey council, when the duly elected members wouldn't play nicely with each other, to the frustration of officers, but it seems like officers repeatedly subverting democracy and rendering elected councillors irrelevant in Carmarthenshire is all just fine with them.

Anonymous said...

How much longer can the Welsh led Government in Cardiff sit on their hands and do nothing AT ALL to bring Carmarthen County Council to account for this vindictive behaviour by it's CEO to make homeless a family whose female Head of House dare to criticise the actions of said CEO. I'm afraid that all the councillors bar three by being silent on this matter are guilty by association in allowing this matter to continue. Time and again the payment made to the CEO has been called Unlawful by The First Minister and The Audit Commission and as such it can not be classed as a private matter between the CEO and Mrs. Thompson. Those in the Council by being silent on this matter need to look at themselves at this time of year. Christmas to the greater population of this country is a time to celebrate Peace and Goodwill to all. Even those of a religious persuasion. YOU know who YOU are.

Anonymous said...

I have previously commented that Mark James came to Carmarthen with an agenda-to render councillors impotent so ensuring his total control.He has achieved that with threats of legal action and they are terrified.
The welsh assembly are contemptible.They are fully aware of the mire in Carmarthen Council and choose to do nothing.Let's get moving and force them to acknowledge what one man has done to demolish democracy.Shame on them if they don't.

Anonymous said...

We now have to be asking the Welsh Ministers why they do nothing. They have had evidence of serious misconduct issues taking place in Carmarthen Council over several years from several victims of this rotten council. I would use the word corruption due to dishonesty by several officers, which they are fully aware of. They have totally ignored it. With the knowledge that such conduct is abuse of persons and abuse of the system and can cause immense suffering to those who unfortunately get caught up with this putinlike behaviour, why isn't this Government carrying out it's statutory duties to the people who they are supposedly there for??? Time for action.

Unknown said...

What came first the chicken or the egg? Was the Carmarthenshire County Council run by a squeaky clean Executive before the arrival of Mark James? I doubt it but his arrival has been a Godsend for councillors & officers whose own self interest comes before their duty to the public they serve and to the safeguarding of the public purse. Until decent public servants stand up against the "wrong uns" and force them to accept accountability Carmarthenshire people will continue to be ill served and their rights ignored. Misconduct in Public Office is a crime but when our public bodies "work in partnership" who will have the strength of character to start to dismantle the "Cartel"?

Anonymous said...

Something has to give - papering over cracks can only be done so many times before the cracks are too wide to hide. Al Capone believed he was untouchable. No-one is when they leave behind a smoking gun!

Jac o' the North, said...

Ken Haylock's contribution was revealing.

In the first paragraph he points at the right targets, but in the second paragraph his aim starts to wander in a rather revealing way.

First, he refers to the "Welsh Nationalist Party", but there's no such thing (if there was, I'd be a member). I assume he's referring to Plaid Cymru, so why doesn't he use the correct name?

After getting confused between "more autonomy" and "an independent Wales" Ken Haylock goes on to say, "However, nothing says 'Welsh Speaking Banana Republic coming soon' like what has happened, and is happening in Carmarthenshire . . . ". How is the Welsh language involved in this case in any way, shape or form? Why employ a gratuitous insult like that?

Presumably this is an oblique reference to the aforementioned "Welsh Nationalist Party" yet, surely, until very recently the council was run by Mark James through the Labour-Independent coalition? And it was this coalition that granted Mark James carte blanche to persecute you.

Jacqui, as you know, I have supported you for some time, and that's because I see a terrible injustice having been committed by a local authority that has slipped from democracy to despotism with the connivance of a cowardly 'Welsh' Government.

For me, this is not a Welsh/English issue. Yet some, like Ken Haylock, choose to view your case as an Englishwoman wronged by evil natives in order that it might conform with their own prejudices. They don't help.

Anonymous said...

Jac is absolutely right about a 'cowardly welsh government' and more questions should be asked of them. Why do they continue to ignore corruption? When dishonesty, coverup, bullying, using smear campaigns to silence critics is common place, that is corruption. What else would you call it? So why isn't a Minister asking questions?

Ken Haylock said...

The Relevance of the Welsh Nationalist Party or whatever the correct English version of their name is, is that they are now the official opposition in Cardiff.

For a long time it looked as if the Labour Assembly government were looking the other way because it was their party nominally in power in Carmarthenshire (we know where power really sits in practice, and of course also with the ever present 'Independent Group' who have power in excess of any mandate they might claim).

When Kevin Madge the Labour Leader began to chafe at the bit in his mouth and find his position as figurehead & human shield for all of the Dark Lord's machinations to be a tad uncomfortable, suddenly it was all change as the patronage shifted to local Plaid Cymru luminaries, who all miraculously forgot their past concerns in their rush to leap aboard the gravy train, as PC began providing cover to the usual suspects in the way Labour used to. And you would expect the official opposition in Cardiff to be making a massive stink over Carmarthenshire council's record & ongoing failure, except that oops, it appears it's now a PC council rather than a Labour one, so we wouldn't want to rock the boat by calling out the executive for not doing their jobs and going in to take over governance. You could see Labour not wanting to wade in on their own, having sat on their hands for the duration of Labour's tenure as coalition partners in Carmarthenshire, it would look well fishy if they suddenly and only realised there was a problem as soon as the political mood music changed there. Not unless PC give them political cover by urging them to take action though...

So why would PC do such a thing? Because they really only have two policies... let Wales rule itself ever more fully to the point of independence (i.e. 'let us rule an independent Wales', because nobody else has that as an objective) and 'Everybody should speak Welsh, English is a foreign tongue that we wish to eradicate like SmallPox'.

That second policy point is my paraphrase of the position, obviously.

The project to get Wales speaking Welsh whether it wanted to or not is well underway in many places - all that Welsh medium education for kids from Anglophone homes - hence the 'Welsh Speaking' part of my trite remark, but the case for independence is still very much to be made, and events like those in Carmarthenshire & the failure of the Assembly Govt to grip the problem and resolve it do not demonstrate that if a magic wand gave Wales its independence tomorrow, it would be a robust democracy with good governance (to say the least). And that explains the Banana Republic part of my comment. Because if it looks like any proposal for an independent Wales would lead to Wales becoming just another Third World ex British colony run by crooks and kleptocrats, it will never even become a thing that _might_ happen...

If the primary reason for that were that Plaid Cymru has put the short term politics of their illusory control of Carmarthenshire Council above public confidence in the governance of Carmarthenshire and ultimately, of all of Wales, then they are demonstrating political cynicism that would make a Lib Dem blush. If their commitment to Welsh Nationalism is more than skin deep then they should have been hammering the Labour cabinet in the chamber every day that nothing was being done until something damn well was done. To do otherwise is to invite my observation that Wales will be exuding the gentle whiff of 'Banana Republic', all be it without the bananas.

Hence "However, nothing says 'Welsh Speaking Banana Republic coming soon' like what has happened, and is happening in Carmarthenshire . . . ".

Sorry, you did ask...

Anonymous said...

Agree with Ken Haylock - sad but true!!!!

Jac o' the North, said...

It appears you were unable to understand . . .

This post is about what happened to Jacqui Thompson a few years back at the hands of Carmarthenshire County Council's chief executive Mark James when the council was - for the sake of appearance - run by a Labour-Independent coalition.

The Welsh language had no relevance whatsoever to these events, and no culpability attaches to Plaid Cymru. (Believe me, if this could be hung on Plaid Cymru, I'd be doing it.)

In your ranting, rambling 'defence' (and by God I'm being generous there!) you tell us that Plaid Cymru is now the official opposition in the Assembly. Well done, a big hand for Ken Haylock everybody. But wait - what the hell has the Assembly line-up on the cusp of 2017 got to do with what happened to JT in Carmarthenshire in 2011?

You have exposed yourself to be a pathetic bigot. The kind who promotes 'connections' that don't exist, and looks for excuses, however flimsy, to attack the Welsh language.

Save yourself further embarrassment by staying schtum.

Y Cneifiwr said...

Ken, you are wrong to bring the language into this. If Carmarthenshire were really run by a Welsh-speaking mafia,which is what you seem to be implying, Mark James would never have got the job, neither would most of his top managers.

caebrwyn said...

Thanks for the comments. Just to say that I have never considered that my case has been in anyway related to the Welsh language, or a Welsh/English issue..... But I do appreciate the support of both Ken Haylock and Jac o'the North, along with everyone else, whatever your views.

Ken Haylock said...

Of course Carmarthenshire isn't run by a 'Welsh Speaking' anything. It's run by Mark James & his cabal, with generous allowances provided to assorted local luminaries of PC who, quite co-incidentally, appear to have provided his regime with a 'PC franchise', thus allowing his work to continue unencumbered under the PC-Indy coalition brand rather than a Labour-Indy one...

I don't care what happened in 2011, unconscionable as it was, since not being possessed of a time machine, there is no way to change it now. I care about what happens today, tomorrow, next week, next month, and I care that still nothing is being done. I care that PC in Carmarthenshire which made various outraged noises about the conduct of Carmarthenshire's governance prior to the last council election promptly forgot all about any such issues when there were, coincidentally, generous salaries & allowances on offer to they & theirs. What could possibly have motivated this sudden attack of mass amnesia?

Just because I say it's no surprise that the Labour administration in the assembly don't want to wade into Carmarthenshire now after ignoring it for all those years when it was nominally a Labour council and all of this (among many other things) originally happened, doesn't mean I think that's OK, but the angry defensiveness of a couple of Nationalists in response to my point underscores something here - their party's continuing silence nationally & their complicity locally. As I said, from my perspective as an outsider, they only have two distinctive core policies, and one of those is put at serious risk by any & all absolute failures of governance in Wales, and yet they are demonstrably looking the other way & saying nothing. Why? Cynicism? Or is there some noble animus to their continuing silence that escapes me?

If they are cynically damaging future prospects for more devolution or even full independence for short term political advantage, in not being vocal about what passes for business as usual in Carmarthenshire the way they would be if the council was still nominally run by Labour, then eventually somebody is going to assume that that other key policy objective has been pursued with equal cynicism a forethought, and perhaps people might wonder if it's not being done because it's good for Wales, but because it is good electorally for PC...

Ken Haylock said...

Or I could just cut to the chase: How do Cneifirw & Jac o the North explain Welsh Nats sudden local complicity with the Dark Lord's agenda, and how do you explain/justify the apparent silence of PC in the Welsh assembly?

Jac o' the North, said...

Just to put you straight, pal. Yes, I am a nationalist, and that's why Plaid Cymru is not my party. And by the way, you don't half waffle.

Unknown said...

Plaid Cymru (Party of Wales) seems once in power they forget the need to stand up against wrongdoing and corruption despite shouting about it when in opposition in Carmarthenshire County Council. Self interest not Public interest comes first. As @SianCaiach tweets "Hopefully people will start voting for the candiates themselves, not the old corrupt parties." If these Cllrs thought we'd hold them to account for ignoring their complicity we might have better representation and a cleaner less toxic public body in charge of the public purse and the people of Carmarthenshire's rights and interests.