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!