west*wales*news*review

West Wales News Review — analysis with a sustainability slant

Archive for the category “Law”

Action Fraud Didn’t Answer the Phone

Investors in The Corran Resort and Spa, Laugharne, have lost almost £20 million due to opaque and unethical business practices, such as buying non-existent property on land the vendor did not own, and they feel their plight is not recognised and is not being investigated.

The Financial Conduct Authority had a look at Kayboo, the former owner of some of the property at the hotel site near Laugharne, but investors tell me they are unaware of any findings. They are in the dark.

I have tried to ask for an investigation myself, but  without success. Dyfed Powys Police seemed a good starting point, but their website has firm instructions to contact Action Fraud.

That’s easier said than done. I wanted to speak to a person who could give me further directions, not complete an online form that might drop into an abyss, and rang 0300 123 2040, the phone number prominently featured on the Action Fraud website. I phoned three times, and each time got a recorded message “we apologise for not being able to answer your call”, followed by swift disconnection.

So I tried online chat, and after six minutes an agent called ‘Shannon’ asked me to state the issue. After a couple of lines of typing, a message flashed up, “Too many characters, try again”. How do you state a complex problem in a Twitter-length message? I split the message in two, and Shannon typed back to say I should ring the telephone number!

Circles, mazes, no way forward. Investors had already told me that Action Fraud didn’t seem concerned.

I’ll try again, but maybe dodgy dealings and fraud are so entrenched in our financial system that there is no realistic hope of rooting them out.

What a sad state of affairs.

PDR

We have reported on The Corran several times, e.g. https://westwalesnewsreview.wordpress.com/2017/03/11/financial-conduct-authority-has-investigated-corran-company/https://westwalesnewsreview.wordpress.com/2017/02/26/beware-opaque-investments/https://westwalesnewsreview.wordpress.com/2017/02/19/corrans-tangled-webintentional-misrepresentation/https://westwalesnewsreview.wordpress.com/2017/01/27/sunk-investments-drown-in-carmarthenshire-marsh/

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Know Your Place! Don’t Annoy Big Shots!

The dangers inherent in upsetting people who are richer and more powerful than you have not been removed from our particular political system.

This week Jacqui Thompson, the Llanwrda blogger who in 2011 was arrested, handcuffed and detained for trying to film part of a public council meeting on her mobile phone, was in court to argue against the immediate forced sale of her family home, owned by her husband, forestry worker Kerry, and herself.

The court appearance was the latest episode in the long-running conflict between Carmarthenshire County Council’s chief executive Mark James, one of the highest paid government officials in Wales, and housewife and (unpaid) community councillor Jacqui.

Mr James secured a publicly funded indemnity to sue Jacqui for libel, specifically for calling him a Pinocchio and for referring to a slush fund.  His action was in response to Jacqui’s  high-risk decision to sue him for libel, after he had criticised her and her family on another blog, Madaxeman, run by Mr Martin Milan.

A key factor is the elected councillors’ decision to offer an indemnity for Mr James’ libel claim. The Wales Audit Office said this was unlawful, and it is forbidden in The Local Authorities (Indemnities for Members and Officers) (Wales) (Order) 2006 — but apparently allowed under a catch-all clause of Section 111 of the much earlier Local Government Act 1972, which permits  authorities to do “anything (whether or not involving expenditure …… ) which is calculated to facilitate or is conducive or incidental to the discharge of any of its functions”. Even rob a bank, perhaps, the wording is so permissive. The council relied on the loophole contained in the 1972 Act, as described in People First’s article below:

http://www.peoplefirstwales.org.uk/2016_11_01_archive.html

The Executive Board meeting which agreed to the indemnity, as reported above, heard that any damages would be paid to the council (paragraph 12, sub-section i).

    “(i) The Head of Paid Service has confirmed that he is not motivated by a wish to benefit financially and that accordingly should his action be successful any damages awarded to him will be paid over to the Authority and will not be kept by him.”

Mr Justice Tugendhat, at that point soon to retire, awarded Mr James damages. In his opinion — and libel is often all about opinion, about balance of probabilities, not hard evidence — Mr James was all right and Jacqui was all wrong. The judge’s words prompted Jacqui’s insurers to cancel her conditional fee agreement, leaving her personally liable for every £. She cannot pay it all, even if the family’s bungalow (which has an agricultural tie) is sold.

Last week the judge in the County Court, Carmarthen, declined to allow Mr James permission to sell the house immediately. Instead, there is a ten-year stay of execution, and Jacqui has to pay £250 a month towards the damages bill of £25,000 plus interest and fees, a total around £36,000 before the County Court hearing. The total now exceeds that by over £14,000, because the judge added the latest fees to the damages. Even so, it’s not as much as the nearly £22,000 which Mr James’ team wanted.

Mr James was supposed to pay damages over to the council. That was the arrangement when the indemnity was agreed. Yet last week he appeared to have changed his mind. The court heard, through his counsel, that he could “stuff the money in the gutter” if he wanted.  That’s not what the Executive Board agreed to!

Elections are coming, on May 4th. The Executive Board will have some changes due to retirements, and perhaps after the vote there will be a completely fresh line-up. Hopefully the new board will remind themselves of paragraph 12, sub-section i.

Especially as residents all over the county are looking at their new Council Tax bills and wincing.

PDR

 

 

 

Solicitors’ ‘defamation highlight’ is low point for client Jacqui

The homelessness facing Llanwrda blogger Jacqui Thompson and her husband Kerry, reported in this week’s Private Eye (p.16), is not exactly a triumph for her legal team.

Yet Simons Muirhead and Burton, her solicitors in the 2013 libel court case in which she sued Carmarthenshire County Council’s chief executive Mark James and lost, and he counter-sued her and won, claim the litigation as one of their “defamation highlights”.

“Lucy Moorman and Jeffrey Smele represented award-winning blogger, Jacqui Thompson, in her libel action against Carmarthenshire County Council and its Chief Executive, Mark James, who also counterclaimed,” their website proclaims.

Lucy Moorman, a barrister, is now a pre-transmission advice lawyer at the BBC. Jeffrey Smele remains at Simons Muirhead and Burton, as a senior lawyer.

No mention on the web page, though, that the judge, Mr Justice Tugendhat, found for Mr James both times, after deciding to accept his evidence and to reject Jacqui’s.

To be fair to the solicitors, so much of a libel trial heard by a single judge appears to depend on their personal interpretation of motives, which is hard to predict.

Jacqui’s double loss should have been covered by her legal insurance, but Temple Legal Protection Ltd  cancelled the cover (always read the small print) after hearing Mr Justice Tugendhat doubt Jacqui’s truthfulness.

Asked if she had been aware that her cover could disappear, Jacqui said yes, she knew, it had all been explained to her, but she never thought it could happen because she knew she was telling the truth.

That assumption, in the dangerous world of libel, was mistaken. The judge decided that Jacqui and her family had waged a “campaign of harassment, intimidation and defamation of Council staff and members for some considerable time”, and that Jacqui’s terms ‘Pinocchio’ and ‘slush fund’, applied to Mr James, were libellous.

Lacking insurance after losing, Jacqui found herself liable for costs and damages exceeding a quarter of a million pounds. Her only big asset is her share of the bungalow in which she and Kerry live. Mr James has applied for a court order to enable him to sell the bungalow to recoup damages.

Sudden withdrawal of insurance cover has left Jacqui and Kerry in a nightmare situation. Should it be allowed when, as here, Jacqui is not facing a criminal charge? At the behest of Mr James, Dyfed-Powys Police investigated Jacqui for perverting the course of justice but could not find evidence to warrant a criminal prosecution.

Jonathan Edwards, MP for Carmarthen East and Dinefwr, where Jacqui lives, said he has never been lobbied about the withdrawal of insurance cover, but sees the injustice in its summary removal.

“A fair justice system is the foundation of our modern society which binds us together in our belief of fairness and accountability.  Part of our justice system is, of course, the principle of equal access to justice for all,” he said.

“This particular case, and the cancelling of legal insurance, is not an issue on which I’ve ever been lobbied and I am unaware of any widespread practice of policies being cancelled.

“If such a practice is indeed widespread then changing the law to prevent this would seem sensible in order to ensure justice is not reserved to only those who can afford it.”

Remembering that Mr James had the security of an indemnity from public funds, and Jacqui had only a (misplaced) confidence that she would be vindicated, and the extreme imbalance in the legal system is plain.

Insurance companies willing to cancel cover, although evidence does not reach the standard required for a criminal trial, tilts the scales of justice even more in favour of those with fat wallets or access to the public purse.

PDR

Wronged Maesybont couple are refused insurance claim

“We are sorry to inform you that liability is denied,” said the letter from solicitors Weightmans.

There is to be no recompense from Carmarthenshire County Council for Trisha Breckman and Eddie Roberts of Maesybont, despite 13 years during which the council failed to act against unlawful activities on the next door property, owned by scrap metal dealer Andrew Thomas.

xxxxxx

Trisha Breckman — persecuted for whistleblowing

Dyfed-Powys Police admitted they had been in the wrong when arresting Trisha Breckman at the request of Andrew Thomas and his late wife Karen. In 2010 Planning Inspector Clive Cochrane found that Mr Thomas was violating planning regulations, and in 2012 the Public Services Ombudsman, Peter Tyndall, concluded that the council was guilty of maladministration.

But the county council has employed specialist lawyers Weightmans to fight an insurance claim made by Mrs Breckman and Mr Roberts. Denial of liability, in a letter received by Trisha Breckman on Wednesday October 26, is because “the law of England and Wales does not allow an individual to recover compensation from a public body where the statutory duty or power involved did not itself confer a private law cause of action for a failure to exercise it”.

This seems to show that compensation may be payable only if an authority has a legal duty to act in cases of broken regulations, and not merely a power to act.

Weightmans also say that “the law states that damages in negligence for economic loss are not recoverable when unaccompanied by physical property damage or personal injury”, and also “we believe that your claims are statute barred. The law says that any claims for loss (other than personal injuries) must be brought within six years of the actions causing any loss. The actions which you complain about took place more than six years ago.”

The letter warns against any further action, with the words “Should you commence proceedings, we will ask the court to strike them out immediately.”

So the only avenue which Mrs Breckman and Mr Roberts thought was open to them, to seek compensation for being unable to launch and run their proposed cattery business because of harassment and intimidation from the people next door, now has locked gates across it – just like the lane to their cottage when Mr and Mrs Thomas put gates across that.

Perhaps if Trisha Breckman and Eddie Roberts had sold their cottage, Pantycastell Fach, as soon as they realised they were living next to an industrial site, not a farm, and had been less than truthful about the reason for a sale so soon after moving in, they would not now be in financial hardship.

Instead, they became whistleblowers, but whistled into an Arctic wind which has now frozen them solid.

Absence of justice for whistleblowers, who highlight wrongdoing and cover-ups, is an important national issue. Surely they deserve our gratitude and support, not kicks in the teeth.

PDR

A version of this article appeared in the Carmarthenshire Herald, October 28 2016

More on this case here, here and here

Whistleblower Jacqui Thompson closer to homelessness

Whistleblowing in public threatens to make Llanwrda blogger Jacqui Thompson and her husband Kerry homeless.

Jacqui has received a court letter saying that Mark James, Chief Executive of Carmarthenshire County Council, has applied for an order to sell her home, so that the proceeds will provide libel damages awarded to him of £25,000 plus interest at 8% and fees, currently a total of £35,392. The damages were awarded in 2013 when Jacqui lost a libel claim against Mr James, and he won a counter-claim against her.

“There will be a court hearing to decide whether the order is granted,” said Jacqui, “but the odds are in his favour.”

Jacqui’s sole financial asset is the home where she lives with husband Kerry, a long-established forestry worker. They have a self-built bungalow in wooded countryside north of Llanwrda.

xxxxx

Jacqui Thompson: blogger about to have her home sold by court order

The threat to sell the Thompsons’ home is, seen from the outside, an example of a powerful institution turning on a critic. Jacqui became angry about inconsistencies in planning decisions made by the county council, and began writing a critical blog, ‘Carmarthenshire Planning Problems and More’.

There is no requirement to pass a legal exam before starting a blog, and Jacqui strayed into hazardous territory, although was unlucky to come up against a chief executive determined to protect his and his council’s reputation, come what may. He wrote about Jacqui on Martin Milan’s ‘Madaxeman’ blog, including these words quoted by Mr Justice Tugendhat in his judgement on Jacqui’s libel claim:

 

“Mrs Thompson and her family … have been running a campaign of harassment, intimidation and defamation of Council staff and members for some considerable time… [and that, in respect of the incident on 13 April 2011] … the Council would have made a formal complaint of a deliberate attempt to ‘pervert the course of justice’ to the Police by making false statements, but the [Council] officer concerned … did not want to make a fuss…”

 

Jacqui objected and said she would sue. Chief executive Mark James, protected by an indemnity funded with public money, opted to counter-sue. The grounds were that Jacqui had called him a ‘Pinocchio’ and said he had a slush fund for legal fees and indemnities.

The now-retired Mr Justice Tugendhat, heard the case in February 2013. The learned judge disallowed a jury trial, and chose to agree with evidence on behalf of Mr James and to disagree with evidence submitted by Jacqui’s legal team. She thought she was protected by insurance from the specialist provider Temple, but cover was unceremoniously removed when the judge said he thought, on a balance of probabilities, that she was not telling the truth.

There was no incontrovertible proof that Jacqui lied, but that did not matter in a libel trial.

Withdrawal of insurance cover makes her liable for court costs of £190,390 as well as for the damages awarded to Mr James, and a smaller amount of £7,500 in costs awarded against her after an earlier conflict over a planning decision, settled out of court, with the now-retired head of planning Eifion Bowen.

Jacqui pressed for filming of council meetings to be allowed, and that now happens – and filming of planning committee meetings and executive board meetings too. Filming of planning committee deliberations has shown inconsistent decisions of the sort to which Jacqui objected, but current chair Alun Lenny makes a point of requiring members to justify decisions which appear to conflict with planning policies, and the chances of irregular decisions being made are much reduced.

Is the county council grateful for Jacqui’s prompting?

Individual councillors may well recognise beneficial impacts of her actions – which led to her being arrested and handcuffed for filming part of an open, public meeting on a mobile phone — but the chief executive has chosen to pursue her to the point of forcing the sale of her home, and that would make her and Kerry homeless.

Jacqui has asked for support from her AM and MP, Adam Price and Jonathan Edwards, and from the Welsh Government’s First Minister Carwyn Jones, and the Cabinet Secretary for Finance and Local Government, Mark Drakeford.

“I’m hoping to bring some political pressure to bear,” she said, “although I’m not sure it will help our predicament.”

PDR

An earlier version appeared in the Carmarthenshire Herald, October 28 2016

Heavy Cost of Carmarthenshire’s Loophole Syndrome

“Who pays for the fairy lights?” my daughter asked when viewing the town’s Christmas decorations one year.  The answer was all of us, to a greater or lesser extent, whether we wanted to or not.

Those Christmas lights flashed into mind again today, watching the webcast of Carmarthenshire County Council’s special meeting to discuss the Wales Audit Office’s findings that they had made illegal payments.

Mr Tim Kerr QC was down from London for the day. QCs retained as advisers are not usually cheap. There would have been no need to engage a barrister if the county council had accepted the Audit Office’s findings last year. The council, though, is suffering from loophole syndrome, the obsessive search for escape clauses in dense legal texts.

Egged on, as it were, by their legal advisers, the in-power coalition of Labour and ‘Independent’ councillors refused to accept the verdict  of Anthony Barrett, the assistant auditor general for Wales, that an indemnity to chief executive Mark James was unlawful. Instead, they voted to ‘note’ the auditor’s findings, and to withdraw the indemnity pending further legal clarification.

The legal loophole, described in a previous post here, is not accepted by the Wales Audit Office. “The law is very clear,” said Mr Barrett, but rather predictably, Mr Tim Kerr QC cast doubt liberally upon the minds of Labour and Independent councillors. The Wales Audit Office is not an authoritative source of law, said Mr Kerr, it is arguable that the council does have the power to grant an indemnity.

The particular indemnity, that granted by the council’s Executive Board to chief executive Mark James to fund his defence of a libel accusation by blogger Jacqui Thompson and – the point at issue – to bring a counterclaim against Mrs Thompson for defamation, was agreed when Cllr Meryl Gravell was council leader.

Exactly what will satisfy the Executive Board that they acted unlawfully is unclear. It would probably have to be a redrafting of the 2006 Order prohibiting publicly funded indemnities for officers or members to make defamation claims against individuals. Redrafting would have to state in simple English and Welsh that there are no exceptions whatsoever to the Order. Who’ll be paying for the redrafting? All of us, naturally.

The council did vote to accept the Audit Office’s findings of unlawful payment of cash to Mr James, in place of employer’s contributions to the local government pension scheme, from which Mr James had opted to withdraw. There were even some apologies for making mistakes. “The process was wrong,” said Cllr Anthony Jones (Labour, Llandybie), who visitors from other lands might well have mistaken for the leader, so authoritatively did he speak.

Plaid Cymru’s Peter Hughes Griffiths (Carmarthen Town North) brought a motion of no confidence in current leader Kevin Madge (Labour, Garnant), deputy leader Pam Palmer (Independent, Abergwili) and past leader Meryl Gravell (Independent, Trimsaran), but Labour and the Independents refused to support it.

Cllr Kevin Madge spoke about chickens coming home to roost (but not his chickens, those belonging to the opposition), about the marvellous new bungalows for the elderly (“something to be proud of”), about his pride in Carmarthenshire being one of the best performing local authorities (in his view). Cllr Pat Jones (Labour, Burry Port) also expressed her delight about the bungalows. Cllr Colin Evans (Labour, Pontamman ) referred to “this prestigious authority”, and Cllr Philip Hughes (Independent, St Clears) claimed that Carmarthenshire has “come out of the recession unscathed” thanks to the good leadership of the officers and the Executive Board.

Leaving aside the moot point whether most residents feel unscathed by the recession, the impression given was of a ruling group now accustomed to living in a bubble of self-congratulation, insulated from opposing points of view. I’d like them to remember who is paying for their fairy lights (and for barristers’ opinions).

Pat Dodd Racher

Raising the False Flag of Predetermination: a Farce in Pembrokeshire

‘Predetermination’. Sounds like a religious belief. It’s certainly got a lot of power – too much power, the way the word is often interpreted in local government.

Spiked club

‘Predetermination’ seems to be a spiked club which local government officers and/or rival councillors can use to bash elected representatives around the head, metaphorically speaking. If a councillor speaks out on an issue, say a school closure, or a commitment to spend a great deal of public money on a prestige project like Llanelli’s Parc y Scarlets, perhaps, they risk losing all power to vote on it because of ‘predetermination’ – the accusation that they have already made up their mind in advance of a vote in the council chamber.

There is loadsamoney in this for lawyers. (Could it be in their financial interests to make local government as litigious as possible? Surely not!) Predetermination is also advantageous to some council officers, because opinionated councillors who make their life difficult can be gagged.

As an ordinary voter, I want councillors to stand up for their communities, to represent their electors, but predetermination stops that. Or did, before the 2011 Localism Act, which is supposed to privilege free speech and to give councillors the confidence that having a known view on an issue would not lead to a legal finding of ‘predetermination’.

But predetermination is alive and well in Pembrokeshire. The county council’s extraordinary general meeting last Friday, Valentine’s Day, turned into a massacre of good governance, and predetermination was the emblazoned (but false) banner at the head of the charge. Excellent bloggers who have described the shambles include Old Grumpy and Jacob Williams, as well as Mrs Angry of the forensic blog Broken Barnet. Someone in authority, Laurence Harding the Monitoring Officer, it was later reported, stuffed an envelope with useful info for the London barrister engaged by the ‘council’, Tim Kerr (pronounced ‘Car’) QC, and had it placed in the limousine which collected Mr Kerr from Port Talbot railway station (not the nearest station to council HQ in Haverfordwest, but no point having a limmo if it’s not purring down the motorway). The envelope included the names of councillors who had expressed the opinion that council chief executive Bryn Parry-Jones should be suspended while police investigate payments made to him in lieu of employer’s pension contributions, after he had opted out of the Local Government Pension Scheme. The Wales Audit Office said the payments were unlawful, the in-power Independent Plus group disagreed, but in the end back-tracked and opted to do the auditor’s bidding. Much time had been unproductively spent as councillors tried to work out how to vote without being allowed to read the legal advice which Mr Kerr had earlier furnished to their masters, because it was held to contain ‘privileged information’.

The ruling Independent Plus-ers, having at the 59th minute accepted the auditor’s findings, were determined not to retreat any further and that meant rejecting the opposition Labour party’s motion to suspend the chief executive during the police investigations into alleged legal breaches. How to do this? Simple! Predetermination.

The 10 names in Mr Kerr’s envelope belonged to councillors, including Labour group leader Paul Miller, who had publicised their opinion that they wanted the chief executive suspended. But I am ahead of myself. A couple of Independent Plus councillors had already set the scene, by telling their fellows that they should leave the chamber because they had professed the view that the chief must stay in post, so they had predetermined the issue, hadn’t they?

Canoe without a paddle

Now all sorts of nasty things can happen to a councillor who votes when in a state of predetermination. When Mr Kerr’s names were revealed, the Labour opposition was incandescent, realising they had been tied up in a canoe without a paddle somewhere in the middle of Milford Haven with a liquefied natural gas tanker looming over them. No chance yet of Mr Parry-Jones suffering the indignity of suspension.

The role of Mr Kerr in all this seems, er, odd. As an ordinary bystander, I would have thought that a top London QC paid from public funds would be engaged, if at all, to advise the whole council on a vital matter of public service, not to assist one set of councillors to block a motion drafted by the opposition, using the predetermination trap.

But is it really such a trap?

Section 25 of the Localism Act 2011 clarifies predetermination. A guide to the act, published by the Department for Communities and Local Government, says:

“…the Government has used the Localism Act to clarify the rules on ‘predetermination’. These rules were developed to ensure that councillors came to council discussions – on, for example, planning applications – with an open mind. In practice, however, these rules had been interpreted in such a way as to reduce the quality of local debate and stifle valid discussion. In some cases councillors were warned off doing such things as campaigning, talking with constituents, or publicly expressing views on local issues, for fear of being accused of bias or facing legal challenge.

“The Localism Act makes it clear that it is proper for councillors to play an active part in local discussions, and that they should not be liable to legal challenge as a result. This will help them better represent their constituents and enrich local democratic debate. People can elect their councillor confident in the knowledge that they will be able to act on the issues they care about and have campaigned on. “

 The Welsh Government issued a similar statement:

Part 1, Chapter 4 Clause 13 clarifies how the common law concept of “predetermination” applies to councillors in England and Wales. The Explanatory Notes to the Bill state: Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgment fully and properly to an issue requiring a decision. Decisions made by councillors later judged to have predetermined views have been quashed. The clause makes it clear that if a councillor has given a view on an issue, this does not show that the councillor has a closed mind on that issue, so that if a councillor has campaigned on an issue or made public statements about their approach to an item of council business, he or she will be able to participate in discussion of that issue in the council and to vote on it if it arises in an item of council business requiring a decision.

Clause 13 applies to members of all councils in England and Wales to which there are direct elections – although it applies both to elected and to co-opted members of those councils, and also to members of National Parks Authorities.

So in both England and Wales, the Localism Act was supposed to tame the ogre of predetermination. If so, why is the ruling group on Pembrokeshire Council still citing it to silence opponents? It seems to boil down to fear of the law.

Fear of the law trumps free speech

James Goudie QC, the barrister in whose chambers Mr Kerr is accommodated, wrote a note called ‘Localism Act 2011: Wales – Territorial Extent and Application’, which says in paragraphs 10-12:

“Section 25 of the Act (prior indications of view on a matter not to amount to determination is intended to do no more than to clarify the common law on unlawful predetermination. (sic) In effect it does this by attempting to highlight the important distinction between a closed mind and an empty mind.

“Although the common law has always regarded a closed mind to be a bad thing, it has never required decision makers to undertake their work with empty minds. Hence the provisions of subsection (2) of Section 25 of the Act, which do no more than to underline specific matters that are not of themselves to be determinative that there has been unlawful predetermination. The limits of subsection (2) are important: the subsection does not require previous statements or actions to be disregarded; rather it provides only that if such statements or actions have occurred, they are not of themselves to be treated as determinative of the case.

“How does Section 25 of the Act compare with the approach that the Courts have taken without Parliamentary assistance? In fact, the comparison is a pretty close one. The general trend of Court decisions in this area has been to recognise that local councillors really are politicians, and that they are required and expected to hold political opinions, particularly on matters of local controversy. The Courts have also recognised the potential for rough and tumble in local politics, and to try where possible to distinguish this from genuine predetermination.” (my emphases)

The tone of Mr Goudie’s note is more barbed than the rather permissive language in the information from the Department for Communities and Local Government and the plain speaking from the Welsh Government.  I noticed that Mr Goudie refers to ‘courts’ three times, which may sow fear in the mind of any councillor reading it. If I were counting on the cheery prose from the DCLG, I would feel emboldened enough to address a public meeting, or write a stiff letter to the local paper. But if I was relying on Mr Goudie’s expectation that the courts should “try where possible to distinguish this from genuine predetermination” I would think “how on earth am I going to pay the legal bills?” and would be tempted to proceed with excessive caution.

So despite the Localism Act, predetermination is still a legal snake pit and evidently still a lucrative business area for legal professionals. The intention in Section 25 of the Localism Act to strengthen democracy was easily subverted in Pembrokeshire last week. Too few councillors have confidence that Section 25 would protect them.

If only a great public campaign for the application of Section 25 could materialise, but by and large the public has little interest in legal technicalities. These three stories in the Western Telegraph were, this morning, all more popular than the paper’s report of Friday’s dreadful meeting: ‘World War II mine found on beach’, ‘Warm tributes following death of Pembrokeshire Lottery founder’ and ‘Theft of 88-year-old volunteer’s handbag ‘shocking’’. We find portents of danger and the misfortunes and tragedies befalling individuals far more interesting than legal abstractions, which is good news for lawyers.

For reference, the following is Section 25 of the Localism Act.


Prior indications of view of a matter not to amount to predetermination 
etc

(1)Subsection (2) applies if—

(a)as a result of an allegation of bias or predetermination, or otherwise, there is an issue about the validity of a decision of a relevant authority, and

(b)it is relevant to that issue whether the decision-maker, or any of the decision-makers, had or appeared to have had a closed mind (to any extent) when making the decision.

(2)A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because—

(a)the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and

(b)the matter was relevant to the decision.

(3)Subsection (2) applies in relation to a decision-maker only if that decision-maker—

(a)is a member (whether elected or not) of the relevant authority, or

(b)is a co-opted member of that authority.

(4)In this section—

  • “co-opted member”, in relation to a relevant authority, means a person who is not a member of the authority but who—

(a)

is a member of any committee or sub-committee of the authority, or

(b)

is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority,

and who is entitled to vote on any question which falls to be decided at any meeting of the committee or sub-committee;

  • “decision”, in relation to a relevant authority, means a decision made in discharging functions of the authority, functions of the authority’s executive, functions of a committee of the authority or functions of an officer of the authority (including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given);
  • “elected mayor” has the meaning given by section 9H or 39 of the Local Government Act 2000;
  • “member”—

(a)

in relation to the Greater London Authority, means the Mayor of London or a London Assembly member, and

(b)

in relation to a county council, district council, county borough council or London borough council, includes an elected mayor of the council;

  • “relevant authority” means—

(a)

a county council,

(b)

a district council,

(c)

a county borough council,

(d)

a London borough council,

(e)

the Common Council of the City of London,

(f)

the Greater London Authority,

(g)

a National Park authority,

(h)

the Broads Authority,

(i)

the Council of the Isles of Scilly,

(j)

a parish council, or

(k)

a community council.

(5)This section applies only to decisions made after this section comes into force, but the reference in subsection (2)(a) to anything previously done includes things done before this section comes into force.

Pat Dodd Racher

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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