Jacob Williams

TIMED-OUT COUNTY COUNCILLOR LOSES SEAT

Wednesday 14th February, 2018
TIMED-OUT COUNTY COUNCILLOR LOSES SEAT

• PEMBROKESHIRE COUNTY COUNCILLOR RELINQUISHES SEAT
• FAILS TO ATTEND SINGLE COUNCIL MEETING IN SIX MONTHS
• BY-ELECTION LOOMS FOR PEMBROKE ST. MARY NORTH
• BUT LEGAL BLUNDER CREATES INTERESTING TWIST…
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I’ve covered this developing situation in a follow-up post.

See: Anything to declare?

Residents of Pembroke’s St. Mary North electoral division will head to the polls for the second time in twelve months to elect their county councillor following the seat’s shock vacancy.

The development comes as the ward’s previously-elected member, David Boswell, has fallen foul of local government legislation – relinquishing his seat due to non-attendance.

Section 85 of the Local Government Act 1972 sets out the types of meetings UK councillors must attend at least once every six months or they lose their seat. In plain English, they are:

• Attending a meeting of any council committee or sub-committee.

• Attending a meeting of any joint committee, joint board or other body discharging council functions.

• Attending a meeting of any joint committee, joint board or other body appointed to advise the council on discharging its functions.

• Attending, as a representative of the council, a meeting of any body of persons.

Dai Boswell was also serving as Pembroke’s 638th town mayor when charged with historic child sex offences last year

Mr. Boswell (known as Dai) was narrowly elected to Pembrokeshire County Council at his first attempt in the May 2017 Welsh local government elections, when all sixty of the authority’s seats were filled.

Beating two others vying to represent Pembroke St. Mary North, Boswell’s six-vote victory was one of many Tory gains across the county.

Polling day was May 4th, 2017

But his ward’s residents were left without representation in County Hall for almost two months as Boswell failed to formalise his triumph. I discussed this at the time, see: Why so shy, Dai?

He eventually signed the official paperwork accepting office just days before the deadline which would have triggered an automatic by-election.

During his short term as councillor he attended two meetings – the last was 2017’s August 14th extraordinary full council.

The following week, on 23rd August, he was criminally charged with historic child rape allegations which are pending trial at Swansea Crown Court.

On 31st August Mr. Boswell resigned from the authority’s Conservative group but remained a county councillor, which attracts a £13,400 salary.

With no committee assignments at PCC, he had only two opportunities to attend a qualifying meeting to reset the six months before today – the 19th October or 14th December full council meetings – but attended neither.

Bizarrely, Boswell was actually present at County Hall during December’s full council meeting but didn’t step foot in the council chamber – he was in town for another reason.

On leaving the chamber for the lunch adjournment, councillors found a lone Boswell eyeing up the cling-filmed sandwiches laid on as part of the chairman’s informal Christmas buffet reception.

He also failed to attend the second half of the meeting.

Timed-out

Having failed to attend a council meeting in the six months since August, Boswell’s fulfilment of the attendance requirements hinges on only one other category:

“…attendance as representative of the authority at a meeting of any body of persons…”

This may sound very open-ended but the key part is “attendance as representative of the authority.”

This means a councillor nominated to attend a particular meeting as the council’s delegate.

For example, a councillor appointed by PCC to an outside organisation – a school’s governing body or an industrial liaison group – would be the council’s representative at that forum as they are designated by the council.

Dai Boswell has never been appointed as Pembrokeshire County Council’s representative in any capacity.

A councillor loses his seat due to non-attendance automatically – no decision has to be made – but it’s the first of two separate stages.

The second comes under S. 86 of the Local Government Act 1972. It places a legal duty on councils to formally declare that the seat previously held by a timed-out councillor has fallen vacant ‘forthwith.’

Arrangements to hold a by-election cannot be made until this legal declaration is issued.

At PCC the duty to declare a vacancy is one of a very large number of functions delegated to the authority’s chief executive, Ian Westley.

But, as is so often the case with PCC, JW’s aware of a twist concerning the provision of legal advice likely to generate wide interest in the chief exec’s duty to declare the Pembroke St. Mary North seat vacant.

The plot thickens…

Senior council officers semi-regularly lay on members’ seminars for us councillors. Here we are subjected to glossy (and sometimes not so glossy) presentations on sundry topics.

My County Hall moles say that, upon realising his six-month deadline was creeping up on him last autumn, a concerned Boswell reached out to PCC’s monitoring officer, lawyer Claire Jones, for advice.

Ms. Jones told Dai that these members’ seminars qualify under attendance rules, meaning that his ticking time-bomb is reset every time he attends one – which he has been doing, as recently as this month.

I’ve also managed to acquire the text of a January 2018 email in which the monitoring officer sets out her opinion on what qualifies as attendance under the six-month rule as prescribed by S. 85 of the LGA 1972.

Responding to a query from a third party, Ms. Jones says she is “pleased to clarify the position,” explaining:

“The Section is couched in wide terms and it does not therefore matter if attendance during the six month period comprises of attendance at an informal council meeting, as long as the attendance is recorded.

This would include council workshops and seminars for Councillors.

The Councillor in question [Boswell] has indeed attended various such events in recent weeks and I do not therefore consider that Section 85(1) will be invoked on 14th February 2018 in the circumstances.”

The six-month rule requires the assemblage to discharge council functions or to have been appointed to advise the council on discharging them.

The get-togethers referred to by the monitoring officer do neither.

And those of us with a keen nose will note her claim that the sort of events Boswell attended constitute “an informal council meeting.”

Local government law spells out in great detail how council meetings must be legally constituted.

They include S. 100 of the LGA 1972, requiring meetings to be open to the public and press.

Meanwhile Schedule 12 to the LGA 1972 sets out a string of preconditions, including that meetings must be advertised with notice and for councillors to be formally summoned.

Ad-hoc death-by-PowerPoint sessions over lukewarm coffee behind closed doors fail on all these counts, and more.

In response to a fellow councillor’s question during the December council meeting’s recess, Mr. Westley advised that the then councillor Boswell’s presence at members’ seminars counted under the six-month rule – so a screeching U-turn may be on the horizon.

Ultimately it may be up to St. Mary North electors – whose County Hall representation is at stake – to battle for the law to be followed.

If the seat isn’t declared vacant, the good burghers of Pembroke may consider the pursuit of legal action against the chief executive their only option.

And JW’s top tip: If they do and Mr. Westley’s defence is that members’ seminars qualify under attendance rules, a judge will waste little time declaring the seat vacant – and there’ll be a court-ordered by-election in early spring.


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17 Comments...

  • Dave Edwards

    Jacob, I emailed Ian Westley to point out that attendance at a seminar does not meet the requirements of the Local Government Act 1972, but no reply has yet come. I am not holding my breath!

    I had imagined that the erstwhile Laurence Harding was the most useless, ineffective Monitoring Officer ever, but it seems that he may have competition.

  • Weasel Magoo

    If the seat is not declared vacant there is the very strong risk that the Chief Executive is in the cart if a concerned elector seeks a declaration from the Court that the seat should have been declared vacant.

    Would that come under the heading of ‘…with hilarious consequences’?

  • John Hudson

    Perhaps this constitutes a budget saving, or moratorium on unnecessary expenditure, by not holding an election.

    The PCC administrative machine looks for interpretations of legislation for reasons why not to do something, that common sense would appear to require.

    It is good to know that we are in control and that the rule and spirit of democratic rights are being protected.

  • Paul Absalom

    It makes you wonder what other legal advice has been wrongly given.

    The report into Seren Bernard maybe?

  • Welshman 23

    Here we go again, PCC are an embarrassment and how much will this cost the people of Pembrokeshire?

  • Keanjo

    Surely Councillor Boswell, having complied with the attendance rules as set by the authority’s monitoring officer, would have a case for wrongful dismissal if thrown out.

    A more reasonable approach surely would be to advise him of the error and inform him that from now on he must comply with the proper interpretation of the rule.

    I suppose this is another example of the ineptitude of this authority.

  • Keanjo, my understanding is that the rule is automatically triggered once six months have elapsed.

    So far as I’m aware, the only way to avoid its operation is to apply for dispensation before the time is up.

  • Keanjo

    Mike, I have no reason to support the councillor in question who obviously has not carried out his duty to his constituents but we cannot ignore the fact that he sought the advice of the legal ‘expert’ employed by the authority and that he complied with the advice he was given.

    By the way, I hope Jacob will allow me to congratulate you for your tenacity concerning the Pembroke Dock grants.

  • Dave Edwards

    The Monitoring Officer believes that attendance at seminars satisfies the requirement under the Local Government Act 1972.

    Using this criterion, a councillor who was able to attend one seminar every six months for the five year term would be able to pocket £67,000 with no need to ever attend a formal council meeting.

    The Monitoring Officer’s brain obviously works differently to mine!

  • Keanjo, I agree that Cllr Boswell, or ex-Cllr Boswell as the case may be, might feel aggrieved if it transpires that the advice he received from PCC was wrong.

    However, that doesn’t affect the legality of what has gone on. After all, the courts are full of unsuccessful litigants who have followed the advice of their highly-qualified and highly-expensive lawyers.

    Indeed, as I have said before, in every contested legal case 50% of the lawyers are wrong.

  • Malcolm Calver

    Putting aside the advice from the council’s legal eagles over his non-attendance at qualifying meetings, there are many councillors who sit at meetings drawing salaries without taking part in the debates.

    Let us all hope that “if” or should I say “when” a by-election is called, the good people of the ward elect a councillor who is open, transparent and holds officers/employees at County Hall to account.

  • John Hudson

    The Chief Executive and Director of Finance have a statutory obligation to ensure that the Council acts lawfully, presumably on advice from the Head of Legal Services.

    The Monitoring Officer’s responsibility for ensuring the legality of decisions of officers and councillors are lawful is, by statute, a personal one.

    The way the council works is governed by process which is subject to rules concerning justification and reasonableness in the way decisions are reached. What could possibly go wrong?

  • Keanjo

    If we can manage without a councillor for 6 months is it just possible that there are far too many?

    For example do we really need 6 to represent the people of Haverfordwest and as many as 5 to look after the interests of Milford Haven?

    The number could be halved without any problem. If the council are serious about cutting costs, that would be a good start.

  • Keanjo, hate to be pedantic, but Milford, as Pembrokeshire’s largest town, has six members and poor little Haverfordwest only five.

    That’s not to say both towns couldn’t get by with half that number…

  • John Hudson

    It would be interesting for us on the outside to know how many members-only secret seminars (which are unreported, at which “information” is disseminated but no decisions are made) are held as opposed to open formal council and committee public meetings.

    Also, it is not unusual for committees to refer matters to their own secret workshops resulting in a report back to the committee.

    I assume that at all of these secret workshop meetings, advice is provided by officers that is subject to scrutiny by a small number of members which is fully reflected in the report back for final decision by all committee members and eventually possibly cabinet and council.

  • Malcolm Calver

    I note the suggestion by Mike that Milford Haven and Haverfordwest (and I presume he means the whole county) could get by with half the number of county councillors.

    Surely this is the body that runs/organises most services in the county, so it is crucial for Pembrokeshire residents and therefore needs sufficient members to scrutinise spending.

    The cost of county councillors is small compared to the overall budget but the problem I see is their ability to easily raise the council tax charge to residents but their failure to check spending, after agreeing the annual budget for the various departments, with only Mike and you Jacob scrutinising actual spending.

    The solution therefore could be in making the role of councillor a 35 hour week position rather than it is at present 20 hours with individual councillors allocated to a particular budget spend.

    I do believe several years ago when Bryn Parry-Jones was in charge there was a move to reduce the number of wards, thus county councillors, but that was rejected.

    I would suggest the first port of call for savings in councillors and statutory bodies should be town and community councils, a costly expense no longer needed in today’s world.

    It is very easy for councils to spend taxpayers’ money. It is not like a business which has to first sell its services before being paid.

  • John Hudson

    Recent history shows that despite identifying annual savings to meet “a balanced budget”, these savings were not actually fully achieved.

    Annual shortfalls were rolled over to be met in the next financial year. Halfway through the year, cabinets, on the advice of officers, have agreed that moratoriums be placed on “non essential spending”, whatever that means.

    At the end of the financial year, as spending is monitored on “net expenditure” rather than gross expenditure and income, there is sufficient flexibility within the accounts, expenditure, income, reserves and additional council tax raised for the outturn or actual to be “in balance” i.e. gross expenditure to be met by income from all sources.

    In my opinion, there hasn’t been any strict financial control of council spending programmes for years, councillors have been happy to let officers get on with it.

    An examination of the current financial year’s monitoring reports shows that the emphasis on financial monitoring is now placed, not on the original budget as approved by council, but on the estimated projected council outturn based on actual spending through the year.

    While it may be commendable for cabinet to look forward to the projected outturn position and the required end of year balanced account position, it would appear that members are provided with little or no information on actual spending on services during the year.

    Councillor scrutiny on actual spending and therefore control is almost non existent and lies with unaccountable departmental spending by officers.

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