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...