As you can see at the end of this post, and after a lengthy FOI wrangle, we finally have the draft minutes of the 'CRWG' meeting, which discussed the issue of libel indemnities, and which was held behind closed doors last July.
Linda Rees Jones' report, referred to in the text is still being withheld under Legal Advice Privilege, and I have appealed to the ICO. Private Eye also questioned this unexplained secrecy, and the fall-out from the meeting, back in November...
I blogged about the meeting last year when it became clear, immediately after the event, that far from removing the unlawful libel clause completely, which had been Cllr Rob James intention by putting it on the agenda, the Plaid and Independent leadership decided it would be a good idea to reinstate the provision.
Worse still perhaps, they wanted to extend it to include councillors.
It's unbelievable.
It's difficult to know where to start with just how wrong all this is, I hope the farcical, and dangerous nonsense speaks for itself. There is plenty of background on this blog, of course.
On the upside, as far as I have been able to establish through FOIs, no letter has yet been written to the Wales Audit Office. Not surprising really, even Legal Linda knows exactly where they'll politely suggest she puts such a letter. I'm surprised she's not written to Acuity Legal instead....
Incidentally, and as I have mentioned before, Ms Rees Jones, who, on the direct instruction of Mr James, advises councillors on these matters, provided a witness statement for her boss in the libel trial. Her statement attempted to justify the unlawful funding of officers' libel claims, or counterclaims, and that it really wasn't a slush fund at all...no, not at all. She has a massive conflict of interest and shouldn't be 'advising' anyone.
So the clauses remain suspended. And they remain unlawful. Aside from the moral, financial and chilling effect of reinstating this ability to sue with taxpayers' money, the legislation below, passed in 2006 specifically prohibits it (my emphasis added);
There is, believe me, NO case law, guidance or any other loophole (or 'grey area') which circumvents this specific prohibition.
It would be laughed out of court.
However, as we know, Mark James, and indeed Linda Rees Jones, who should have both been sacked for gross misconduct in 2014, have a direct personal, professional and financial interest in attempting, dishonestly, to suggest otherwise.
This they continue to do, and have a helpful mouthpiece in the form of Rev Dole, who's elevation to 'power' and the position, (and £48k a year), as council 'leader' depended on a remarkable u-turn regarding his previously expressed opposition to unlawful libel indemnities.
Reading these minutes, and the potential cost to the taxpayer, is like entering a parallel universe where reality, and the concept of 'difficult budget decisions' go out of the window, let alone any sense of legality. 'Good industrial relations'? Has she, and Mark, completely lost the plot?
Carmarthenshire Council, thanks to the toxic, secretive and malign influence of Mr James, remains the only council in the UK with this outrageous provision in it's constitution, suspended or otherwise.
It's frightening.
Here are the draft minutes;
PRESENT: Councillor E. Dole [Chair]
Councillors:
D.M. Cundy, H.A.L. Evans, W.T. Evans, P. Hughes-Griffiths, J.D. James, R. James, D.M. Jenkins, L.M. Stephens and J. Tremlett,
The following Officers were in attendance:
Mr C. Moore - Director of Corporate Services
Ms L. Rees Jones - Head of Administration & Law
Mrs M. Evans Thomas - Principal Democratic Services Officer
Democratic Services Committee Room, County Hall, Carmarthen : 10.00 a.m. - 10.40 a.m.
1. APOLOGIES FOR ABSENCE
There were no apologies for absence.
2. DECLARATIONS OF PERSONAL INTEREST
There were no declarations of personal interest.
3. COUNCIL CONSTITUTION - PART 3.2 SCHEME OF DELEGATION TO OFFICERS
The Chair reminded the Group that at the Extraordinary Meeting of Council held on 27th February, 2014, it was agreed to withdraw the provision in the Council’s Constitution which allowed for the granting of indemnities to members and officers to bring actions for defamation, until such time as the legal position was clarified.
A request had been received to place this item on the agenda for discussion as it was felt that, as some time has elapsed and the clause was withdrawn “until such time as the legal position is clarified”, a decision should now be made as to whether to remove the suspension or to withdraw the clause from the constitution.
The Head of Administration and Law’s report on the background to the libel indemnity provision, the relevant law and case law was considered by members.
Concern was expressed by some members over what would happen if the clause was withdrawn and then another case arose.
Members discussed the options of permanently removing the provision from the Constitution, maintaining the status quo or reinstating the provision. Overall, the majority of members were inclined to opt for recommending that the provision be reinstated.
The question of indemnifying members arose and the Head of Administration & Law explained that this was slightly more of a grey area as the case law relating to officer libel indemnities had been based on the need to maintain good industrial relations and members are not employees of the Authority. She agreed to research the issue and bring a report to a future meeting.
The Head of Administration & Law advised the Group that, if they were minded to recommend the reinstatement of the clause, then she proposed that she and the Director of Corporate Services should firstly write to the Auditor-General to ascertain his likely response and report back to the Working Group.
AGREED
3.1 that the Auditor-General for Wales be consulted on the possibility of the indemnity clause being reinstated in the Council’s Constitution;
3.2 that the Head of Administration & Law prepare a report on the lawfulness or otherwise of member libel indemnities.
4. TO RECEIVE THE NOTES OF THE MEETING HELD ON THE 20TH APRIL 2018.
RESOLVED that the notes of the meeting held on 20th April, 2018 be confirmed, and in accordance with normal CRWG practice, a copy of the notes be circulated to all members.
Linda Rees Jones' report, referred to in the text is still being withheld under Legal Advice Privilege, and I have appealed to the ICO. Private Eye also questioned this unexplained secrecy, and the fall-out from the meeting, back in November...
I blogged about the meeting last year when it became clear, immediately after the event, that far from removing the unlawful libel clause completely, which had been Cllr Rob James intention by putting it on the agenda, the Plaid and Independent leadership decided it would be a good idea to reinstate the provision.
Worse still perhaps, they wanted to extend it to include councillors.
It's unbelievable.
It's difficult to know where to start with just how wrong all this is, I hope the farcical, and dangerous nonsense speaks for itself. There is plenty of background on this blog, of course.
On the upside, as far as I have been able to establish through FOIs, no letter has yet been written to the Wales Audit Office. Not surprising really, even Legal Linda knows exactly where they'll politely suggest she puts such a letter. I'm surprised she's not written to Acuity Legal instead....
Incidentally, and as I have mentioned before, Ms Rees Jones, who, on the direct instruction of Mr James, advises councillors on these matters, provided a witness statement for her boss in the libel trial. Her statement attempted to justify the unlawful funding of officers' libel claims, or counterclaims, and that it really wasn't a slush fund at all...no, not at all. She has a massive conflict of interest and shouldn't be 'advising' anyone.
So the clauses remain suspended. And they remain unlawful. Aside from the moral, financial and chilling effect of reinstating this ability to sue with taxpayers' money, the legislation below, passed in 2006 specifically prohibits it (my emphasis added);
The Local Authorities (Indemnities for Members and Officers) (Wales) Order 2006
Restrictions on indemnities
6.(3) No indemnity may be provided under this Order in relation to the making by a member or officer indemnified of any claim in relation to an alleged defamation of that member or officer but may be provided in relation to the defence by that member or officer of any allegation of defamation made against that member or officer.
There is, believe me, NO case law, guidance or any other loophole (or 'grey area') which circumvents this specific prohibition.
It would be laughed out of court.
However, as we know, Mark James, and indeed Linda Rees Jones, who should have both been sacked for gross misconduct in 2014, have a direct personal, professional and financial interest in attempting, dishonestly, to suggest otherwise.
This they continue to do, and have a helpful mouthpiece in the form of Rev Dole, who's elevation to 'power' and the position, (and £48k a year), as council 'leader' depended on a remarkable u-turn regarding his previously expressed opposition to unlawful libel indemnities.
Reading these minutes, and the potential cost to the taxpayer, is like entering a parallel universe where reality, and the concept of 'difficult budget decisions' go out of the window, let alone any sense of legality. 'Good industrial relations'? Has she, and Mark, completely lost the plot?
Carmarthenshire Council, thanks to the toxic, secretive and malign influence of Mr James, remains the only council in the UK with this outrageous provision in it's constitution, suspended or otherwise.
It's frightening.
Here are the draft minutes;
CONSTITUTIONAL REVIEW WORKING GROUP (CRWG)
FRIDAY, 27TH JULY, 2018
Councillors:
D.M. Cundy, H.A.L. Evans, W.T. Evans, P. Hughes-Griffiths, J.D. James, R. James, D.M. Jenkins, L.M. Stephens and J. Tremlett,
The following Officers were in attendance:
Mr C. Moore - Director of Corporate Services
Ms L. Rees Jones - Head of Administration & Law
Mrs M. Evans Thomas - Principal Democratic Services Officer
Democratic Services Committee Room, County Hall, Carmarthen : 10.00 a.m. - 10.40 a.m.
1. APOLOGIES FOR ABSENCE
There were no apologies for absence.
2. DECLARATIONS OF PERSONAL INTEREST
There were no declarations of personal interest.
3. COUNCIL CONSTITUTION - PART 3.2 SCHEME OF DELEGATION TO OFFICERS
The Chair reminded the Group that at the Extraordinary Meeting of Council held on 27th February, 2014, it was agreed to withdraw the provision in the Council’s Constitution which allowed for the granting of indemnities to members and officers to bring actions for defamation, until such time as the legal position was clarified.
A request had been received to place this item on the agenda for discussion as it was felt that, as some time has elapsed and the clause was withdrawn “until such time as the legal position is clarified”, a decision should now be made as to whether to remove the suspension or to withdraw the clause from the constitution.
The Head of Administration and Law’s report on the background to the libel indemnity provision, the relevant law and case law was considered by members.
Concern was expressed by some members over what would happen if the clause was withdrawn and then another case arose.
Members discussed the options of permanently removing the provision from the Constitution, maintaining the status quo or reinstating the provision. Overall, the majority of members were inclined to opt for recommending that the provision be reinstated.
The question of indemnifying members arose and the Head of Administration & Law explained that this was slightly more of a grey area as the case law relating to officer libel indemnities had been based on the need to maintain good industrial relations and members are not employees of the Authority. She agreed to research the issue and bring a report to a future meeting.
The Head of Administration & Law advised the Group that, if they were minded to recommend the reinstatement of the clause, then she proposed that she and the Director of Corporate Services should firstly write to the Auditor-General to ascertain his likely response and report back to the Working Group.
AGREED
3.1 that the Auditor-General for Wales be consulted on the possibility of the indemnity clause being reinstated in the Council’s Constitution;
3.2 that the Head of Administration & Law prepare a report on the lawfulness or otherwise of member libel indemnities.
4. TO RECEIVE THE NOTES OF THE MEETING HELD ON THE 20TH APRIL 2018.
RESOLVED that the notes of the meeting held on 20th April, 2018 be confirmed, and in accordance with normal CRWG practice, a copy of the notes be circulated to all members.
-------------------------------------------------------------------------------------------------------------------------
Update 25th February: The Carmarthenshire Herald
The following article, by Herald reporter Jon Coles, features in the current edition of the newspaper;
PLAID COUNCILLORS VOTED TO REINSTATE UNLAWFUL LIBEL INDEMNITY
A Freedom of Information Act request has uncovered that Carmarthenshire County Council’s Constitutional Reform Working Group (CRWG) voted in secret to retain an unlawful libel indemnity for officers.
Jacqui Thompson, the blogger who was pursued through the courts by departing Council CEO Mark James with the benefit of the indemnity, received the minutes of the decision following her own FOIA request regarding the matter.
THE UNLAWFUL INDEMNITY
The indemnity given to Mr James, over which he gave a promise to his employers to repay upon which he later very publicly reneged, allowed the controversial CEO to engage in a legal action he had previously offered to settle.
When the Wales Audit Office investigated the indemnity, the Council’s Head of Legal was questioned about Mr James’ promise to repay the Council. However, an email trail shows that she declined to address the issue or otherwise deflected the inquiry.
The libel indemnity and its granting was the cause of considerable controversy, accompanied as it was by the revelation that Mr James and the Council’s Executive Board had also connived in a tax avoidance wheeze to allow its best paid employee to save tax on his seven-figure pension pot.
The Council has never accepted either that the payments made were unlawful or that the libel indemnity is likewise unlawful.
A SUBTLE CHANGE OF POSITION
Embarrassingly for current Council Leader Emlyn Dole, he inveighed heavily against the probity of the arrangements in opposition but last year approved the indemnity’s retention in the Council’s constitution. Plaid MP Jonathan Edwards, who vigorously attacked the indemnity and the tax avoidance scheme, has been left high and dry by his party colleague’s volte face, which has also caused severe embarrassment for the less brass-necked Plaid Cymru councillors.
Last year, when Labour leader Rob James called for the indemnity to be scrapped his proposal was booted to the Council’s Constitutional Review Working Group (known as CRWG).
At a meeting of CRWG on July 27, a secret report prepared by Council Officers was discussed. Instead of scrapping the unlawful clause, a decision was made to refer it back the Wales Audit Office for reconsideration.
Following Cllr James’ disclosure that the matter had been discussed – and although he didn’t disclose the confidential officers’ report or its conclusions – he was barred from seeing other confidential documents for a period of time at the Council Leader’s own direction.
Councillor Dole had previously said that Carmarthenshire would be the most open and transparent Council in Wales.
NO LETTER TO THE WAO
When we explored whether or not a letter had been sent to the WAO to establish whether or not its views had been sought, we did so on the basis that the Council had not made up its mind as was seeking entirely proper advice from the body which ruled the indemnity unlawful.
The WAO told us that no correspondence had been received from the Council on the issue in the two months since the CRWG meeting. Jacqui Thompson’s own inquiries revealed that four months after the meeting the WAO had heard nothing.
As far as we are aware no correspondence has ever been sent to the WAO asking for its opinion.
And that is hardly surprising.
Our preconception that advice was being sought as a sensible and precautionary step is shattered by the content of the CRWG minutes disclosed to Jacqui Thompson.
THE MINUTES AND THE MEANING
The Head of Administration and Law’s report on the background to the libel indemnity provision, the relevant law and case law was considered by members’.
Pausing there: none of the CRWG members are practising lawyers or have a specialism in public law, so their personal opinions of the correct law would be necessarily ‘guided’.
‘Concern was expressed by some members over what would happen if the clause was withdrawn and then another case arose.’
At this point, it is worth observing that the indemnity has been ruled unlawful by the WAO and the Council has never tested that decision, bitch about it though some councillors have. Why councillors would consider continuing an unlawful policy is open to question, not least as – due its unlawfulness – there could be no expectation by officers of reliance upon it.
‘Members discussed the options of permanently removing the provision from the Constitution, maintaining the status quo (ie that it remains on the books but is never used) or retaining the provision.
‘Overall, the majority of members were inclined to opt for recommending the provision be reinstated.’
In other words, Plaid and Independent councillors were minded to reinstate what has been ruled an unlawful provision.
YET ANOTHER INDEMNITY?
But the minutes then go further: ‘The Head of Administration & Law advised the Group that, if they were minded to recommend the reinstatement of the clause, then she proposed that she and the Director of Corporate Services should firstly write to the Auditor-General to ascertain his likely response and report back to the Working Group’.
That has never happened.
But the second point agreed is a significant expansion of the indemnity principle into new territory, as the CRWG majority approved ‘that the Head of Administration & Law prepare a report on the lawfulness or otherwise of MEMBER (emphasis added) libel indemnities.'
The deadening hand of such a move on proper scrutiny could scarcely reflect well on such an open and transparent Council as Carmarthenshire.
Quite what other members of the Plaid Cymru group, let alone Jonathan Edwards MP, would think of such a move is a matter of conjecture.
You cannot, however, imagine they would be enthused by the prospect.
(Carmarthenshire Herald 22nd February)
* * *
10 comments:
I wonder... if the council’s internal written legal advice is that the libel indemnity clause is all wonderfully legal & above board, whether there is any remedy available, given that the law seems explicit & not on the council’s side?
@Ken
The simple remedy would have been to have accepted the Wales Audit findings in 2014, this would have led to the removal of the clause, not it's 'suspension'.
Political force and common sense should be the remedy, but as you can see, that is sadly lacking, and quite the opposite has happened.
The law is explicit, and there have been a hundred years of court cases where it has been proven that it is not possible to rely on incidental powers (S111 or common law powers) to extend, or avoid the limitations on, explicit powers.
It's against the law, simple as that.
I wrote to my MP Jonathan Edwards (Plaid) shortly after the CRWG meeting last year expressing my concern, this was his response;
"As far as Adam [Price] and I are concerned, this is not a matter which has been discussed within the party and we would not personally support the re-introduction of the clause. Furthermore, we don’t think there is any appetite whatsoever in the Plaid Council Group to re-introduce such a clause.
We maintain the position that it is right and proper for a public authority to indemnify officials for proceedings brought against them in the course of their duties, but not the ability to initiate proceedings or for counter-claims.
If I get any more information I’ll be sure to get in touch, but as far as I’m concerned there are no attempts to re-instate the clause."
Maybe he should now have look at the Minutes as Emlyn (on behalf of Mark), seems to have different ideas and quite an appetite, and make a public call for the complete removal of the clause.
I have also asked Mr Edwards to details the steps he will be taking to ensure that Mr James is instructed to accept liability and repay the unlawful libel indemnity and pension scam cash before he retires. There has been no reply as yet
I believe Mark James was told by the Ombudsman to grow a thicker skin when complaining about a councillor's comments. The same should be addressed to councillors as they are elected by the public and should expect to be criticised when they fail to deliver on their promises. Lets not forget Emlyn Dole was going to make CCC the most open and transparent council in Wales. To be such a hypocrite and turncoat should result in him being told to stand down. He is not fit to be a councillor let alone a Leader. Shame on Plaid.
Re. I'm surprised she's not written to Acuity Legal instead
Maybe she has – on 8th February Acuity Legal published an article, ‘Social media - when “fair comment” becomes objectionable’, by a new member of their team on their website which, rather helpfully for Mark and Linda and Emlyn, includes the view that “There is some uncertainty however, as to whether a local authority can still, in exceptional circumstances, pay the costs of bringing a claim for defamation by relying on section 111 of the Local Government Act 1972.”
http://www.acuitylegal.co.uk/resources/news/view/social-media-when-fair-comment-becomes-objectionable
It has only ever been solicitors in the pay of CCC or Mark James that have put forward the view set out the article and it is not one that any other UK local authority holds and has in its constitution. Some local authorities specifically state that indemnity cannot be given to cover the cost of councillors or officers taking legal action for defamation.
Of course, this can only give rise to further suspicions and questions around why Acuity Legal appear to be so accommodating and why they were appointed by CCC to conduct the internal review especially when they have acted on behalf of Mark James. It only helps to confirm the views of Rob James that Acuity Legal was not sufficiently independent to investigate the actions of CCC officers in the Wellness debacle.
Anon 09:36
Thank you for that. Good grief, it makes the appointment of Acuity all the more unbelievable and further confirms the explanation for their accommodating approach.
This is a perfect example of the arrogance of Mr James, he saw no problem, quite the opposite in fact, with appointing his own solicitors to gloss over three years of dodgy dealing. It also gave him a defence to any accusations which may arise from the Wales Audit Office investigation, let alone the police.
I am also beginning to wonder whether the council have paid Mr James' personal legal bills through their arrangement with Acuity.
Anything is possible.
For info, and further to my comment above (21st Feb), Jonathan Edwards MP sent this brief response yesterday;
"I am looking into matters and will reply once I have the full facts at my disposal.
I haven’t changed my view on anything that I have told you in the past.
However, the Local Authority is not answerable to me as a Member of the House of Commons."
All our councillors appear to be interested in is to contradict the opposition.
This also appears to be the norm in UK politics.
My voting days have come to an end I'm afraid. It's a complete waste of time.
Surely our Local Authorities are answerable to the Welsh Government. Our AM's in Carmarthenshire need to start speaking out in the Senedd never mind which party the support. It looks like our votes are wasted when our elected representatives ignore matters that go against the public interest & perpetrated by our public servants which is totally wrong as we, Joe Public, pay their wages. We need to start voting for people who have a genuine interest in working in all our interests not just a select few whose main interest is self interest. The Party system protects own members instead of holding wrongdoers to account. Cronyism, nepotism, coverup and coercion flourishes when as we see in Carmarthenshire no one is ever held to account. Schools must start discussing local matters including what democracy means and how important it is to understand the duties of our representatives and be able to question them when we feel they are letting us down in favour of toeing their party's line and controlling our dissident voices by ignoring our concerns. The young need to be encouraged to take an interest in current affairs and debate matters. It was heartening to see youngsters speaking up and marching against climate change recently; after all they are the ones who'll suffer the most from the way the worlds resources have been misused without any consideration for the catastrophic climate change caused which many still deny is happening. We must carry on using our vote otherwise we are allowing the shit to continue.
Given that it is now mid-March 2019 and my original request for the officer's report to CRWG was refused last July, and my appeal was lodged with the ICO last October, I asked the latter for a brief update.
Here's the response;
"I can confirm that I have received a response from the Council to my enquiries concerning your complaint. The Council maintains that the information held relevant to part 2 of your request of 3 August 2018 (a copy of the officer report discussed at the CRWG meeting on 27 July 2018) is exempt under section 42 of the Freedom of Information Act 2000 (‘the FOIA’).
In light of the above, I will now need to draft a decision notice relating to your complaint. As you are aware, a decision notice is the Commissioner’s view on whether or not a public authority has handled a request in accordance with the provisions of the FOIA. Once a decision notice has been drafted it goes through a number of checks before it is issued to both parties..."
It is remarkable that the council are still refusing to disclose this report and are prepared to put another public body, this time the ICO, to considerable time and expense to try and stop anyone seeing it. I have set out my arguments why disclosure, and transparency, is very much in the public interest but we'll now have to wait for the decision from the ICO and take it from there.
As Private Eye said last November;
"..Needless to say the council refuses to tell the Eye why a report into the chief exec's unlawful libel-case indemnity is confidential. They can't possibly have anything to hide, after all."
See later post, Email from my MP - and Acuity Law threaten to sue'elected members' for the lukewarm reaction to my queries from Jonathan Edwards MP.
I also had a response from the WAO's Anthony Barratt who had originally issued the two Public Interest Reports exposing the libel indemnity and tax avoidance scandals. Mr Barrett confirmed that, as of 25th March, no letter had been received from the council concerning the indemnities. He further confirmed that;
'In the absence of any other information being brought to our attention my current view is unchanged from that documented in the report.'
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