The libel indemnity clause has gone, (oh, no it hasn't)...and Thursday's meeting - updated

Update: The clause has been removed from the delegated power section of the Constitution but remarkably, its been explicitly added to the powers of the Executive Board. I'm speechless. It was the Executive Board who bankrolled Mark James in 2012 - deemed unlawful by the Wales Audit Office.

The slush fund hasn't been deleted, it's just been moved.

Outrageous. 

* * * *

Well, the libel indemnity clause, the slush fund, has gone, sort of. The item finally came up at Thursday's full council meeting and passed without murmur or comment from anyone. The Constitution will be updated in due course, one hopes...

Emlyn Dole, a big fan of such slush funds, managed to whizz through the brief report, completely avoiding the word 'defamation'. Obviously this was deliberate, the intention being to create as little fuss as possible. It reminded me of when Mark James slipped his slush fund into the Constitution several years ago, hidden amongst a raft of other measures, and without 74 councillors noticing what had happened. 

They certainly noticed a couple of years later. 

Anyway, on the deliberately misleading advice of Ms Rees Jones, head of legal, this was what they approved on Thursday;

"To recall...the 'libel indemnity'...and to reserve the right to exercise that power to the Executive Board under its existing personnel function"

"that power" being the right to use taxpayers' money to sue on behalf of senior officers. 

Are we back to square one? 

This is the 'fudge' which I referred to in detail in my previous post and which is unlawful and ridiculous, and merely serves to protect the idiots who acted illegally in 2012. However, I very much doubt that the Executive Board would have the nerve to use your money again to bankroll a senior officer, but given that Emlyn Dole is as much a princess as Mark James, who knows. 

Linda Rees Jones would certainly support such an illegal move, she confirmed this at meeting of CRWG in August. Soothing Emlyn's worries that they'd be unable to use public money to sue, she said that "if it was deleted, a report could be taken to the Executive Board to consider granting an indemnity in the future, as the Board had the necessary authority to do so". They don't.

She also insisted that if the clause was deleted, it had to be presented, in public, as "tidying up" rather than because it was, in fact, illegal.

She is as barking mad as Mark James and should have been sacked, along with him, in 2014. 

So, unless Emlyn and Co do decide to bankroll someone else, and face immediate legal challenge, I guess this is as good as it gets, so far. 

Who knew that Plaid Cymru, so opposed to the slush fund when in opposition, would now become so keen to sue members of the public...a new policy for their 2021 election manifesto no doubt...

On a personal note, this is a victory, but as for my case, I will continue to ensure that justice is served, by whatever means possible. That's a promise.

A few words about the rest of the meeting.

Apart from the difficulties many councillors seem to have in clicking the right button, or wandering off mid-vote, there's a disturbing reaction to any scrutiny. Any attempt to question senior councillors or management, or even make helpful suggestions, however mildly put, is met with a barrage of accusations that criticism is being directed at frontline workers or staff carrying out their duties. 

This is absolutely not the case, everyone is hugely grateful

 

This has always been the modus operandi at Carmarthenshire Council under Mark James, deflecting criticism of himself towards a junior member of staff and accusing the critic of attacking said member of staff. Emlyn Dole has, of course, seamlessly taken over the role. 

He excelled himself on Thursday and, later, in the meeting appeared to have lost the plot, bombarding everyone, repeatedly, with figures and statistics to prove some sort of point, which no one was making anyway. 

At one point the Leader's batteries were so overloaded that even Wendy Walters tried to shut him up, finally succeeding on the third attempt.

It's obviously all too much for him, or maybe he's upset about lost bookings for his hot tub. He really needs to go.

The cut-off switch had to be deployed again when veteran Plaid councillor Ken Howells, during a discussion about the controversial One Planet Development policy, started criticising the applicants for one such development which the planning committee, on which he sits, had approved two days previously. He was left mouthing into the ether as the Chair moved swiftly on. 

As usual, the whole meeting is available online.

As I said no one is criticising anyone at the moment, over the pandemic anyway, but it must have escaped Emlyn's attention that both the Welsh and UK governments are in fact, open to question and at least some level of scrutiny from the opposition, the press and everyone else, its par for the course. It's called democracy, and applies at local as well as national level.

There have been no Scrutiny Committee meetings since the March lockdown, other meetings have resumed but most are little more than bland PR exercises for the Plaid administration. 

The pandemic is not the only thing the council are making decisions on, and challenge and scrutiny must be allowed, or all sorts of nonsense will slip under the Covid radar. The final item on Thursday was the business case for the City Deal Wellness Thing, or Pentre Awel (cost of name change - £25k) as it's now known.

Given the secrecy (webcast switched off) one must assume that no 'partners' have yet been found, from academia or the private sector, and the criminal investigation into bribery and corruption continues.

We don't know how much will be borrowed by the council for this fiasco and with the current level of debt at £432m, and a £8m black hole in this year's accounts, they should not be pouring any more into the Wellness swamp. The consultants, lawyers, PR companies and assorted hangers-on have already had millions.

Swamp being the operative word. New flood maps were published by NRW last week which show that much of Llanelli and its surrounds are now at very high risk of flooding. Delta Lake itself, the site for Pentre Awel is at very high risk from river, tidal and surface water flooding, and that's without taking climate change predictions into account. 

All that's separating it from the big blue sea is a broken sluice gate.

Oh dear.

The slush fund to go...sort of

Later post: The libel indemnity clause has gone, sort of...and Thursday's meeting - updated 

Actually, it hasn't gone at all, just been moved.

Previous post; The slush fund - will it stay or will it go?

As I said in my previous post above, full council will discuss the future of the slush fund, (or unlawful libel indemnity clause to give it it's 'official' name) on Wednesday 14th October..

The agenda has been published and whilst it looks like pressure has been brought to bear and the unlawful libel indemnity provision will be removed (or 'recalled', sounds better I guess) from the council's constitution, there's a fudge.

 

The wording of the recommendation (a single paragraph, there are no accompanying documents or legal advice) suggests that the provision will actually still be there, albeit under the cover of the general 'Personnel' function of the Executive Board:

"and to reserve the right to exercise that power [to sue] to the Executive Board under its existing personnel function"

(my emphasis)

So, instead of the chief executive suing you, Emlyn Dole or whoever is in the hot seat will have the honour instead, acting on behalf of senior officers. As most Carmarthenshire councillor 'functions' can be delegated to senior officers, one wonders if anything's changed. 

Anyway, clearly the outrageous, illegal and chilling clause had to go, and, after so many years of  campaigning and writing about it, it's something of a victory. 

By the way, I was spot on when I called it Mark James' slush fund, Mr Justice Tugendhat.

I have to say also that Labour leader Cllr Rob James has been pushing for removal since July 2018, and the Auditor General also rejected the begging letters from Ms Rees Jones and, of course Mark James, before he hastily retired.

Naturally, neither Linda Rees Jones nor Emlyn Dole think there was anything wrong with it. I've lost count of the number of times I've said it was illegal (or, to use the local government jargon 'unlawful') and how Ms Rees Jones and former CEO Mark James lied to councillors and the courts in defence of their own illegal actions. 

Emlyn Dole should hang his head in shame, along with the whole Plaid Cymru group, for demanding reinstatement, particularly as he was so opposed to it all when in opposition, 

Ms Rees Jones should be sacked.

They cannot, of course, admit defeat. Ms Rees Jones' job has been on the line for seven years and god forbid they'd have to send the bailiffs to Mark James' door for the illegal cash he pocketed...

So, here's the fudge.

It is, according to Ms Rees Jones, perfectly legal to fund officers to bring libel cases under 'duty of care'. She has based this argument on the Bedford Council case from 2002.

I will explain.

Three senior officers were publicly funded to bring an action for defamation against a local newspaper and the whole shebang, which they pretty much lost, cost the Bedford taxpayers £500,000 in legal costs. They defended their expenditure (obviously decided behind closed doors, sound familiar?) under 'duty of care'.

The Auditor challenged it in court but the judge decided he was too late, and that it would be 'too onerous' for the officers to repay the money, so he turned down the challenge.

He added that this was a 'one off' and gave dire warnings to any other council considering such a move.

It is this, erm, ringing endorsement of libel indemnities that Ms Rees Jones relies, and has decided that the Council, as the 'employer' has the right to sue in the same circumstances.

This was not the end of the story at Bedford though. .

Not only were the taxpayers outraged that their precious cash had been squandered but so was the MP. The matter was then discussed in Parliament and led, directly, to the eventual ban on the bringing of libel actions with public money in 2004, the same legislation being adopted by the Welsh government in 2006.

It is well worth reading what was said by the MP about the case in 2002, and the 'duty of care' argument and it was these parliamentary discussions which led to the eventual ban.

Hansard, April 2002;

Bedford borough council has agreed to use public money to maintain private libel actions. It has also committed staff time and resources in support for many months. It has justified that under its duty of care to employees.

I am deeply disturbed by the situation, which has serious and wide-ranging implications. The obligations and responsibilities associated with the duty of care do not include maintaining private libel actions initiated by employees. Duty of care, as I understand it, covers matters such as safeguarding health and safety, dealing promptly with grievances, taking reasonable care, and acting in good faith.

I do not believe that any case law suggests that duty of care extends to funding private libel action. I do not believe that an employment tribunal in the land would consider any failure to sponsor such action to be a fundamental breach of the contract of employment. Councils can and do fund prosecutions when employees have been assaulted in the course of their duties, but there appears to be no duty of care to fund libel actions... 

I turn now to the maintenance by a local authority of libel actions. I strongly oppose that, because the use of public money to suppress public criticism would fundamentally undermine freedom of expression and, therefore, democracy itself. If a Government or a local council disagree with comments made, they have suitable avenues open to them to obtain a remedy without recourse to litigation. The normal and healthy response is to investigate the complaint, debate the issues openly and issue a rebuttal in the media.

Public criticism of an officer or councillor may sometimes be harsh and unfair, but that is an occupational hazard. The more senior the individual in an organisation, the better one would expect that to be understood. If a council considers a particular instance worthy of an investigation and a reasonable response, it has the means to pursue such a course of action; supporting and maintaining a defamation action is clearly beyond reasonable....

Not maintaining an action for damages surely means not doing so either directly on the local authority's own account, or indirectly, or by proxy by funding its employees to do so. Naturally, individuals enjoy the right to sue for damages, and that includes individual councillors and officers. It is the maintenance of such actions through public funds that is wrong. Bedford borough council has done just that. I believe it is wrong, and many of my constituents believe it to be wrong. They know that there are dozens of better ways of spending their money than through the irresponsible commitment of hundreds of thousands of pounds on legal costs. They know that this whole business represents a diversion of time and energy from the real tasks that should concern the council—those of promoting the borough and running effective services. I could not agree with them more, and I think that the people of the borough are owed an apology by the council....

...local authorities should not maintain and support libel actions directly or indirectly. I hope that he {the minister] will also agree that such actions cannot be in the public interest, that they would undermine freedom of speech in our country, that they form no part of duty of care, and that they must therefore be stopped once and for all.

          Patrick Hall MP Hansard 2002

As I said above, it was stopped, once and for all, in 2006. 

Except for Carmarthenshire County Council.

In my case Mark James knew he was acting unlawfully so ensured that the Exec Board, at the time, gave it the rubber stamp. He even co-wrote the recommendation to bankroll himself and stayed in the meeting to ensure they complied. Fraud, in other words.

We will have to see what it said on Wednesday and whilst the removal of the offending clause is to be welcomed, and, to be honest, I can't see the council treading this path again, it must be recognised that they were unlawful in funding the chief executive's counterclaim, and there is NO power to use public money to sue for defamation, either in a claim, or counterclaim.

This is an illegal and deeply disturbing legacy from a deeply disturbed Mark James, and needs to go.

This, from the same Hansard speech, is from earlier case law in South Africa, and sums up the moral of the story;

"I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the state, derived from the state's subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country."

We will see what is said on Wednesday.

* * *

PS. I must also mention that the City Deal business case for the Wellness Thing, the Sauna-on-the-swamp, is on Wednesday's agenda. The fact it's now had to be rebranded (due to the well documented scandal and ongoing police investigation) as 'Pentre Awel', says all you need to know. 

Despite involving £mms of public money, it's being discussed behind virtual closed doors, public and press excluded...

Century Wharf - a forged signature, and the cladding scandal

Since the Grenfell tragedy in 2017, cladding inspections have been required for all high rise residential buildings in the UK. The UK government provided cash to replace the flammable cladding in England, although this has now run out, but the Welsh Government only provided money for publicly owned buildings, not those in private ownership.

In Wales, many of these flats are in leasehold ownership and residents have found that without the proper certification that the cladding is ok (an EWS1 form), they are impossible to either sell, or to obtain a mortgage to buy one. It's left swathes of modern developments pretty much worthless whilst the developers, management companies and residents argue over cost and responsibility.

In most cases it seems that the leaseholders' are being expected to pick up the cost. Plenty of detailed background information can be found online, the hashtag #endourcladdingscandal is particularly informative.

Some unscrupulous individuals have found ways to cash in on the scandal, and at Century Wharf, Cardiff, a forged signature on a EWS1 form has been discovered. There appeared to be more than one. We know, of course that former CEO Mark James just happens to control the Right To Manage (RTM) company at Century Wharf.

As the Western Mail reports, a concerned resident and retired police officer Gareth Griffiths grew suspicious and contacted the surveyor who had 'signed' the form only to be told that she knew nothing about it whatsoever, she had not signed the form, inspected the building, nor had any contact with the company contracted to carry out the fire safety survey. 

His actions saved the residents over £100k in fees for fraudulent certification, though still left the uncertainty over the cladding. Mr Griffiths was also instrumental back in 2017 highlighting the problems caused by poor management and Airbnb guests. 

At the time, Mr James, who, by the way, had not declared any of his business interests to his employers, called those who raised concerns, like Mr Griffiths, a 'cancer'.

The company which manages the flats, Warwick Estates Ltd had contracted Specialist Facade Inspections Ltd (SFI Ltd) to carry out the certification. SFI Ltd have claimed that the third party surveyors they used to sign off the forms are to blame, although they don't identify who that was exactly. They are, however, adamant that they're not at fault.

An investigation is ongoing, and presumably the police are now involved.

Warwick Estates have yet to provide a statement on the issue and neither, it seems, has the RTM company Chaired by Mr James, who also owns property at Century Wharf.

It is, of course, early days but one wonders whether Mr James, or Warwick Estates are being particularly co-operative with the investigations, or not. It was surely the role of the RTM to provide oversight and represent the leaseholders' interests, yet, if it wasn't for Mr Griffiths they'd have flushed £100k down the toilet.

As I said in my previous post on Century Wharf, which dealt with Mr James' use of his business friends to supply telephony services, he got rid of AGMs for the RTM company and, according to sources, runs it with the same charm and hubris that he did at the Council for seventeen years.

I'm not suggesting for one moment that Mr James is somehow involved with forged documents...despite his history at Boston council, let alone his history at Carmarthenshire Council, nor that any of his business acquaintances are involved, nor even his own building inspection company or consultancy firm.... 

What I would say is that, the latest scandal aside, the RTM company would be well shot of Mr James. He spent seventeen years plundering the council, bullying, lying and manipulating his way to favour his friends and silence his critics. He used public resources to further his own interests and private vendettas, and has been investigated by the police more than once, with one investigation, relating to fraud and bribery, currently ongoing. 

He's a crook. 

What is pretty clear, so far, is that in this case, the management fell very short of acting with a duty of care and due diligence, and with SFI Ltd claiming so strongly that they are in fact the victims, it seems there's still some way to go with this. 

(Later post, December 2020; Century Wharf - Mark James' take-over bid)