west*wales*news*review

West Wales News Review — analysis with a sustainability slant

Archive for the tag “libel indemnity”

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

 

 

 

Loose Language, Harsh Words and Wasted Money

Worrying issues from today’s meeting of Carmarthenshire County Council:

  1. There are 74 councillors, but only 56 were present to vote. One in every four stayed away, some unavoidably due to illness, but surely there is no plague sweeping through the county, sufficiently contagious to incapacitate one member in four?
  2. The issue of the indemnity granted to chief executive Mark James, to defend himself against a libel action by a local blogger and to mount a counter-action of his own, prompted the said chief executive to launch a blast against the blogger and against a councillor who had been prepared to give evidence on the blogger’s behalf. The blogger had waged a “vindictive defamation campaign” to which he had every right to respond, insisted the chief. The blogger had no right of reply, and although one would have expected the councillor concerned, Cllr Sian Caiach (PeopleFirst, Hengoed), to have been allowed to counter the accusation of supporting a blogger against the wishes of the chief executive, council chairman Cllr Daff Davies (Ind, Llansteffan) metaphorically stamped on her fingers and made her sit down.

How did we arrive at such a state of affairs? Councillors’ apparently declining participation rates in local government deliberations, and an apparently increasing tendency for council staff to devote time and resources to oppose and deter critics? How marked are these two possible/probable trends, and are they linked?

I don’t know the answers to these questions, but do feel that coverage and scrutiny of local government have weakened immeasurably because of the decline of local media, in no small part due to the advance of the internet, where resides the advertising which used to bankroll local papers (but which has also created the space for bloggers to blog). While the Establishment has always been powerful, the local media used to provide more of a counter-balance than it can afford to do nowadays. Bloggers do their best, but the lone blogger has to explore the legal labyrinth unaided, and without the benefit of second opinions, while in the days of strong local newspapers and proper training, reporters would have to learn about the law, and thereby could often work on firmer ground.

Today, the council (or the three in four who turned up) have at least accepted that their constitution should not at present allow public money to be used to indemnify individual officers. The power to offer indemnity, based on Part 1 of Section 111 of the Local Government Act 1972, the ‘carte blanche’ clause allowing councils to do, in effect, anything they like, is not to be reinstated (but neither is it definitively abolished from the constitution). Lesley Griffiths, the Welsh Government’s minister for local government and government business, had told Carmarthenshire County Council in a letter dated May 6th that interpretation of the impact of the 2006 Local Authorities (Indemnities for Members and Officers) Order prohibiting indemnities, on the ‘yes you can’ provisions of Section 111 of the Local Government Act 1972, would have to be a matter for the courts.

Councillors were presented with a report from Roger Jones, the retiring head of resources, and head of administration and law and monitoring officer, Linda Rees-Jones, that the original decision to allow Mark James an indemnity had been in accordance with Welsh Government guidance, but faced with First Minister Carwyn Jones’ opposite view expressed yesterday, they opted to kick the contentious matter as far into the long grass as possible, hoping it would lose itself amidst the undergrowth. They voted to merely ‘note’ the officers’ report, i.e. neither to agree nor disagree with it. An amendment from Plaid Cymru councillor Emlyn Dole (Llannon) to accept the verdict of the Wales Audit Office that the indemnity was unlawful, was lost by 24 votes to 31 with one abstention.

As for seeking clarification in the courts, there seemed no appetite for that expensive course of action in any part of the council chamber. The price of arguing with the Wales Audit Office is already thought to be in the range £50,000 to £70,000, when the council is crying poverty and cutting services.

A simpler answer, to my non-legal mind, would be for the Welsh Government to revise the 2006 Order, to make it clear that in respect of indemnities, Section 111 of the Local Government Act 1972 is disapplied.

Clearer drafting of the Order would have saved many, many thousands of £s of public money which would have been far better spent on public services.

 

Pat Dodd Racher

Frayed Tempers as Council Struggles to Ignore Elephant in Chamber

Carmarthenshire County Council’s Acting Head of Administration and Law, Linda Rees Jones, verbally blasted Councillor Sian Caiach during yesterday’s ‘routine’ council meeting. Instead of supporting his fellow councillor, chairman Terry Davies moved swiftly to stop Cllr Caiach asking Ms Rees Jones to justify her remarks.

Cllr Caiach (People First, Hengoed) has guts. She stands up to what I see, on the webcast screen, as attempts to intimidate her. She asks awkward questions, questions which, conveniently for the Executive Board and senior officers, are deemed ‘not on the agenda’ (and thus inadmissible).

In truth, not much seems admissible. Considering the elephant in the council chamber, the worrying reports from the Wales Audit Office citing unlawful payments to the chief executive, Mr Mark James, and the launching of a police investigation to be handled by Gloucestershire Constabulary, the refusal of council chair Cllr Terry Davies (Labour, Gorslas) to allow questions about the unlawful deals – direct salary payments instead of employers’ pension contributions, and an indemnity for a libel counter-claim against blogger Jacqui Thompson —  strikes me as copying not an elephant but an ostrich, head deep in the sand. Cllr Caiach wanted to ask about the legal position of councillors who approved the unlawful deals, which seems a sensible question.

She got a counter-blast from Linda Rees Jones, who said that Cllr Caiach was “obviously trying to introduce the issue of the indemnity by the back door”.  Ms Rees Jones added in a tone of exasperation that a report she had prepared for the Executive Board had nothing to do with the funding of the counter-claim but was about where the litigation currently stands. She had no intention of addressing the case law quoted by Cllr Caiach because it was “irrelevant to the item on the agenda”. Then came the counter-attack.

“What I would say is I am very surprised that having mentioned the code of conduct for members, Cllr Caiach has not turned her own mind to her own position in the matter considering she was a witness for Mrs Thompson in the litigation.”

At this, Cllr Caiach asked “Could you tell me how the code of conduct applies to me in this case?” But Cllr Davies – who complained “you keep on and on about the same thing” — had already moved to protect Ms Rees Jones from having to reply.

According to Cllr Davies, a special meeting planned for February 27th will be the time and place for the matter of the unlawful payments to be aired. Hopefully that meeting will not be a stage-managed presentation. In fact, yesterday a presentation by the Housing Department took up almost an hour of the three hours allocated. Especially at this critical point, are slides about the state of council housing the best use of that time? Fifteen minutes before 1pm, with a chunk of the agenda outstanding, and the majority content to finish at 1pm, the chairman sped through the remaining items like the hurricane that was beginning to blow outside.

There has to be order and courtesy in council meetings, but the impression from yesterday was of discourtesy to Cllr Caiach, who is persistent on behalf of electors, but always polite. As for order, at times this seemed the sort of ‘order’ of which David Copperfield’s step-father, the alarming, not-so-charming Mr Murdstone, would thoroughly approve.

Pat Dodd Racher

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