Saturday 17 November 2018

Legal Professional Privilege, County Hall style

Since the end of July, the 27th to be precise, I have been trying to obtain documents concerning officers' libel indemnities discussed at the CRWG meeting held on that date.

To recap, the Labour opposition leader Cllr Rob James tabled a Motion for the Constitution Review Working Group (CRWG) for the purpose of completely removing the suspended libel clause from the council's constitution.

Despite the cross-party CRWG being set up to improve governance and transparency following the pension and libel indemnity scandals, and the equally damning governance audit by the WLGA, the agendas and minutes are not published and the meetings are held in private.

The group, which is not properly constituted (conveniently), is overseen, and advised by Mark James and Monitoring Officer Linda Rees Jones, the former to blame for the scandals, and the toxic culture in the first place and the latter his personal legal rubber stamp.

With the Motion arriving on the chief executive's desk several days prior to the meeting, Ms Rees Jones was tasked with writing a report to accompany Cllr Rob James' Motion.

Not only does Mark James have a conflict of interest with this issue but so does Ms Rees Jones; as a witness for Mark James in the libel trial, her witness statement concerned itself with the 'legality' of the libel indemnity clause, the slush fund.
As I said here, neither of them should be advising councillors on these matters.

At the meeting, with Emlyn Dole in the Chair and Ms Rees Jones on hand to impart her master's voice, (Mark James had kept away, pulling the strings from afar, delegating liability again and not wishing to get his hands any dirtier than they already are, if that's possible), things took an unexpected turn.

Instead of a unanimous and sensible decision to immediately remove the unlawful clauses, which would also have removed the potential for a massive financial risk, it was resolved, by a majority vote, to write to the WAO to 'clarify the legal position' with a view to reinstate the clause.
I understand that at least one senior Plaid councillor wanted to know if Members too could be provided with libel indemnities if they so desired....

I published an outline of what transpired at the meeting on this blog but not the details and documents, as I did not have that information. This blog post was classed as a 'leak' and tempers flared accordingly.
See also here.

Since then I have asked the council, and the Wales Audit Office, for a copy of the letter that CRWG resolved to send, and which would have been written by Mark James and signed by Ms Rees Jones.

Nearly four months have now passed and no letter has been written. The clause remains suspended, but is still there, and the issue is once again being shovelled under those lumpy carpets of the Presidential Suite.

I'm not sure what 'writing to the WAO' would have achieved anyway, I understand that their legal position remains the same.

What is interesting though, as an issue of governance, is the nature of CRWG Resolutions. How soon after the meeting, and a formal Resolution no less, did someone say, ahh, let's not bother, let's not open that can of worms. I have asked Ms Rees Jones to clarify the nature of a CRWG resolution, is it binding? Or is it not?
She is refusing to tell me.

Anyway, I also asked for her report to the CRWG meeting and this, as you can see here, was refused under legal professional (advice) privilege. I have now made a complaint to the ICO and I await their response. As I have said, her conflict of interest is obvious.

My arguments against the use of legal professional privilege; and for the overriding public interest to disclose, include the fact that this whole issue arose from a WAO report, published IN THE PUBLIC INTEREST, and also the fact that the substantive legal advice has already been published, back in 2014, on the council website, when Mark James and the then Exec Board were expensively defending the indefensible. The council waived its claim to legal privilege at that point.

In addition, the implications of publicly funding libel actions for senior officers is very much in the public interest, across the UK.
This is not an issue which is just of interest to some members of the public, it is in the public interest that the information is released. There is a significant difference between the two. Public money should not be used for this purpose anywhere, and legislation prevents it, unless you are Mark James.

To bring you bang up to date, I recently asked for the 'Minutes' of the CRWG meeting.

The 20 day limit came and went last Friday the 9th November. After a couple of prompts, including a final nudge yesterday, the response duly arrived about an hour later. I am certain that the delay is down to the fact that it is Mr James who is actually providing the response.

The response, which is published in full at the end of this post, was a refusal. The Minutes (or 'Action Notes') are being withheld under Legal Advice Privilege, just like Ms Rees Jones' report, because, so it says, the minutes refer to the report.

This, as before, is utter nonsense. It also has the potential to prevent the disclosure of anything written by a council solicitor to elected members, if it suits the agenda of Mark James.

It is totally absurd that the minutes from a meeting of a few cross-party councillors will not be shared with the rest of the elected members. The discussion at the meeting referred to a paragraph in the council's constitution, not anything commercially or personally sensitive. The Constitution is an important, publicly available document and there is an inherent requirement for full transparency.

I will, of course, ask for an internal review etc etc but the secrecy over this is inexplicable, bonkers really. Mr James is quite accustomed to flouting the law, undertakings, the truth etc but playing fast and loose with Legal Professional Privilege to this extent, widening its scope to prevent public debate on a controversial subject, is a relatively new venture. He continues to change the rules to protect his own back.

I don't know what the ICO will say, but I will take this refusal, and the refusal to disclose the officer's report, as far as I can, if necessary

It is absolutely remarkable that anyone at that council is continuing to pander to Mr James over this. With the authority facing £28m cuts over the next three years, does anyone, other than him, think it right that potentially, a cool million or two should be spent on massaging his fragile ego?
The cash he took last time, and the thousands spent fruitlessly fighting with the WAO, would have been better spent on vital services. Not that he cares a jot.

One of the reasons that it is in Mr James' interest for the clause to remain 'suspended' is that any change to the constitution, reinstatement or removal, will have to be decided, eventually, by full council, in the full glare of publicity. If it's removed, he's lost the argument and he'll have a bloody nose, if there is any attempt to reinstate, he's definitely lost the plot.

As I have mentioned above, this is all very much in the public interest. I personally will never let the matter drop until the clause is removed and this disreputable and dishonest chief executive brought to account, whether he's at the council, moved on elsewhere, or retired, with, or preferably without, a massive pay out.
That's a promise.

The Freedom of Information response;

Dear Mrs Thompson,

I refer to your request for information, which was received on 5th October, 2018 and has been dealt with under the Freedom of Information Act 2000.  Please accept my apologies for the delay in providing this response.

The specific information you requested was as follows:

"1. Thank you for your reply dated 20th September. Could you please tell me if the letter to the Wales Audit Office regarding unlawful libel indemnities has been sent yet? If so then could you please provide me with a copy.

2. I would also be grateful for a copy of the minutes from the CRWG meeting held on the 27th July."

In response to the first part of your request, the Council does not hold this information.

With regard to the second part of your request, this information is held.

However, the substantive content of the action notes is information relating to a report which is subject to legal professional privilege. We therefore believe that the content of the notes is itself privileged, as it is information relating to a communication between a legal professional and a client.
In responding to you on previous requests, I have set out our position and the relevant case law regarding legal professional privilege and the Freedom of Information Act.  For ease of reference, I will revisit this here.

A determination by the Information Tribunal, in Bellamy v the Information Commissioner and the Secretary of State for Trade and Industry (EA/2005/0023, 4th April, 2006), provides a clear definition of legal professional privilege:

“a set of rules or principles which are designed to protect the confidentiality of legal or legally related communications and exchanges between the client and his, her or its lawyers, as well as exchanges which contain or refer to legal advice which might be imparted to the client, and even exchanges between the clients and [third] parties if such communications or exchanges come into being for the purposes of preparing for litigation.”

The Bellamy decision also defined two types of privilege, namely litigation and advice privilege.  I believe in this case that the report is subject to advice privilege, which applies where no litigation is in progress or being contemplated.  This would include confidential communications between the legal professional and the client, for the main purpose of seeking or giving legal advice.  A report which in which a lawyer provides advice is by definition, legal advice, as are notes which refer to or discuss that information.

Under Section 42 of the Act, a public authority may refuse to provide information where a claim to legal professional privilege could be maintained.  In view of the above, I believe this exemption is therefore engaged.

However, the Section 42 exemption is qualified and subject to a public interest test.  In doing so, I must make a distinction between what is genuinely in the public interest and what may merely be of interest to a member of members of the public.

I accept that there are public interest factors which favour disclosure in this case, namely transparency and furthering public knowledge in relation to a matter which has been subject to some publicity in the past.

However, there is an inherent public interest in maintaining this exemption, which will always be strong due to the importance of the principle behind legal professional privilege, which is to protect the privacy of communications between client and lawyer to ensure access to full and frank legal advice, which in turn is fundamental to the administration of justice.

I am not persuaded on this occasion that this is outweighed by the factors favouring disclosure set out above.  Accordingly, I believe the exemption should be maintained and the information withheld from disclosure.
As I am refusing to provide the requested information, please therefore consider this email to be a formal notice of refusal under Section 17 of the Act.

John Tillman
Rheolwr Llywodraethu Gwybodaeth a Chwynion
Adfywio a Pholisi
Adran y Prif Weithredwr
Cyngor Sir Gaerfyrddin

Information Governance & Complaints Manager
Regeneration & Policy
Chief Executive’s Department
Carmarthenshire County Council

No comments: