West Wales News Review — analysis with a sustainability slant

How Valid is Carmarthenshire Council’s ‘Get Out of Jail’ Card?

When Loose Wording in an Earlier Law is used to Avoid Later Regulation…..

The Local Government Act 1972 is not my usual leisure reading, but its repeated appearance to bolster Carmarthenshire County Council’s argument that it allows an authority to bring a libel action, led me to the oft-quoted Section 111.

Part 1 of Section 111 says:

“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.”

The carte blanche section. The do-as-you-please section. The section that the council has used to disapply the Local Authorities (Indemnities for Members and Officers) (Wales) Order 2006.

The 2006 order says, in section 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.”

This sounds clear enough to me, an ordinary member of the public. An indemnity can be provided for the defence of a libel allegation, but not to make a claim or counter-claim.

Use of Section 111 of the Local Government Act 1972 to over-ride the 2006 order means, in effect, that virtually any subsequent legislation applies only if a local authority agrees that it applies — because there is always the option “to do any thing…..which is calculated to facilitate, or is conducive to or incidental to, the discharge of any of their functions”. This wording is imprecise and wide open to interpretation.

Section 111 is being used by Carmarthenshire County Council as a ‘get out of jail free’ card, which can surely not have been the legislators’ intention. Yet what about the words “subject to the provisions of this Act and any other enactment passed before or after this Act (my emphasis)? Does the Local Authorities (Indemnities for Members and Officers) (Wales) Order 2006 not count as an ‘enactment’? The intention of the 2006 Order is to prevent an indemnity from being provided to a member or officer who wants to initiate a claim for defamation, and use of the Local Government Act 1972 to overrule the Order is clearly contrary to the purpose of the Order.

Sorting this out may be a bonanza for lawyers, but it seems a very poor use of public money to me.

Pat Dodd Racher

  • Thank you to Y Cneifiwr for pointing out that Mr Tim Kerr QC, in his advice to the county council, highlighted a sentence in the Explanatory Note to the 2006 Order, which he interpreted to mean that the powers conferred by the Order were “in addition to any existing powers that such relevant authorities may have”. Mr Kerr went on to opine that, based on this wording, the Order did not abolish the incidental power stated in Section 111 of the Local Government Act 1972. To a non-expert like me, if the Order does not supersede the 1972 Act with regard to libel claims, it is time for redrafting!  



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6 thoughts on “How Valid is Carmarthenshire Council’s ‘Get Out of Jail’ Card?

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  4. Y Cneifiwr on said:

    The argument used by the council’s QC (engaged to provide advice 22 months after the the indemnity was awarded) is that the Explanatory Notes to the 2006 Order contain a sentence which he interprets to mean that the “incidental” powers under the 1972 Act still exist. He notes that the House of Lords ruled that Explanatory Notes are of little legal validity when interpreting an Act, but Mr Kerr believes that the Explanatory Notes to an Order may have greater validity.

    On that thread hangs his argument in favour of the 1972 Act.

    Only a court could sort that out, but it does not sound like a killer argument to me.

    • So much of import these days seems to depend on semantic interpretations, to the exclusion of intention. Wonderful for fee-hungry lawyers, perhaps, but not so good for the rest of us.

      • I think what is being lost here is that the council does have a really important role to play in all of our lives. From collecting rubbish, keeping the streets clean and looking after the vulnerable they must also balance the budget and keep costs down for hard working people.

        I think the pension matter is just a sheer blooming scandal. How a Labour run council could go for this is completely beyond me. They refuse to implement the living wage but condone a tax efficiency scheme for one of the wealthiest blokes in the council.

        As regards the indemnity I can not believe that a huge machine like the council could not have absorbed a little bit of criticism even if it was a little over the top. Who would ever have heard about Jaquie T if the council had just let things blow over.

        This has been blown up out of all proportion but the danger is it is using up money that could be spent on the vulnerable. How many hours of work would we be able to fund for the amount spent on legal fees for say lollipop attendants, school teaching assistants etc etc etc.

        And I don’t think the council can fall back on the position that the costs will be recovered. Is Js house worth the cost of the legal action – does she own the property. If and when the council succeeds in getting her out of her home will she have to be housed – by the council !!!

        Councillors need to get a grip – stop all of this rubbish now. Concentrate on what you are there for – to provide services for the elderly, the young and the vulnerable.

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