Jacob Williams
Monday 19th February, 2018

Anything to declare?

Anything to declare?

My previous blogpost sets out why Pembrokeshire County Council’s chief executive is now duty-bound to declare the authority’s Pembroke St. Mary North electoral division vacant.

This is because the ward’s previously-elected councillor, Dai Boswell, has been timed-out – relinquishing his seat by his failure to attend a single meeting within six months as required by S. 85 of the Local Government Act 1972.

The next step, in order to be able to hold a by-election, is the council’s statutory requirement to declare the seat vacant ‘forthwith,’ as outlined in S. 86 of the LGA 1972.

It’s a council function which PCC, like some other authorities across the UK, has delegated to its chief executive to enact on the council’s behalf.

However it’s the opinion of PCC’s monitoring officer, Claire Jones, that Boswell’s regular attendance at members’ seminars over the last six months counts as attendance under S. 85, so he’s met the requirements.

Unorthodox as it sounds, this view would of course mean that Mr. Boswell remains a councillor so the seat hasn’t fallen vacant.

It will surprise nobody to learn that external lawyers have now been called upon to offer a view.

Insider sources say their opinion offers little comfort on both the suggestion that members’ seminars could qualify for councillor attendance purposes, and the prospects of this interpretation standing up to legal scrutiny.

Nonetheless, the chief executive Ian Westley is refusing to declare the seat vacant.

Since then the authority has remained uncannily tight-lipped, repeating what I quoted in my last blogpost about the law being “couched in wide terms.”

By a seeming contradiction in terms, they stick by the unusual claim that members’ seminars are “informal council meetings.”

Their comment to the Pembrokeshire Herald goes a little further, saying that there is an “absence of case law on the specific point” and that “the Courts would be the ultimate arbiter on such matters.”

Chiefly, the Herald is also told:

“…the Monitoring Officer is satisfied that a wide interpretation of ‘meetings’ in this context would be applied by the Courts as in other Local Government contexts.”

This ‘wide interpretation’ argument, we might assume, is what PCC’s top dogs will be pinning their hopes on in the event of a legal challenge.

But I’m afraid it’s another suggestion that confusion still reigns at County Hall.

If they’re hoping a court will vindicate them by giving a “wide interpretation,” it would have to be that members’ seminars fall into one of the many categories outlined in S. 85 (2) of the LGA 1972.

To prevail, they’d have the unenviable task of convincing a judge that councillors having a behind-closed-doors chat over tea and biscuits – a gathering which fails to comply with any meeting requirements stipulated in local government law – nonetheless amounts to one of the following:

• 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.

It remains to be seen which of these forms of meetings the legal eagles would try to argue members’ seminars fall into, but I’ve previously set out my belief that they are incapable of fulfilling any.

I’m aware of other councillors – including senior ones – who’ve already put forth their views on what’s going on in no uncertain terms.

In others news, the odds of a legal challenge against the chief executive’s failure to declare the seat vacant have lengthened in recent days.

Whilst the reduced prospect of a courtroom showdown might sound like a positive for the CEO and his legal team, the reasoning won’t come as good news.

In what would surely be a devastating blow to his authority, there’s talk among councillors of stripping the chief executive of this duty altogether.

This would be on the basis that the chief executive, as the authority’s most senior post-holder, had been entrusted to declare the seat vacant under S. 86 of the LGA 1972 on the council’s behalf – but failed to.

Without this task delegated to an officer, all sixty councillors could then, as in many authorities across the UK, be empowered as a chamber to declare the seat vacant.

It’s an idea gaining traction among councillors disappointed that due process isn’t being followed by those they expected to know better.

It could bring about the biggest constitutional crisis at the Kremlin on Cleddau since the dying days of Bryn Parry-Jones’ near two-decade tenure, raising wider questions of other officials and advisers, too.

Meanwhile, there’s speculation of crowd-funding a legal challenge against any failure to declare the seat vacant.

Word also reaches these parts of a national political party lawyering up to ask some probing questions of County Hall’s rationale.

“With much pain” is how I’ve been told a certain three-page legal letter is likely to be received.

Among the councillors who’ve spoken to me in recent days I’ve picked up a strong vibe, relating mainly to the significance of the issue and what’s at stake.

Far from being the sort of internal legal howler to which we’ve become so accustomed at County Hall, messing up something as serious as the representation of the people is an altogether different league.

I’ve covered this developing situation in a further follow-up post.

See: Doubling down.

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  • Weasel Magoo

    Wide interpretation? It’s re-writing the law!

    How many more legal howlers will councillors tolerate?

    Taken in with previous ‘unfortunate instances’ (of complete disregard for the law, costing the Council tens of thousands of pounds if not more), surely more astute councillors are wondering about the quality of advice they are being given by senior officers in other departments.

  • Martin Lewis

    Why Jacob? What are they scared of?

    If they’re going to spend money on even more external legal advice why not just put it aside to fund a defence if it comes after doing the decent and honest thing?

    I was pleased to see leader Cllr David Simpson engage in a small way on the Pembrokeshire Council Watch Facebook group today. Refreshing.

    Even if he can’t commit to engaging often (ascribed to time constraints) I urged him to visit often and read the comments. There are some quite astute comments on occasion.

    I urged him to avoid the spin which his sole comment seemed to be veering towards and offered an alternative version.

    If Ian Westley won’t do what’s right, it’s only right that the present councillors challenge him in the way you describe and do everything they can to see that rules and laws are followed.

    Why is it so hard for these officers to see what is the right thing to do in such situations?

  • Flashbang

    After they have got rid of the councillor the legal department should be considered next!

  • Cllr Paul Dowson

    Mr Westley should not allow this to drag on unnecessarily.

    I’d like to see him believe in his own feelings on the matter and make a decision guided by the courage of his own convictions.

    If not, then this would be so much simpler and free up some time and finances if Mr Boswell resigned and let someone else stand up for these people!

  • Dave Edwards

    Jacob, I have submitted the following public question for answering at the full council meeting on 8 March:

    Does the Leader agree with the Monitoring Officer’s view that non advertised, informal, unminuted, private, members only seminars are meetings as described in Section V, para 85 (2) of the Local Government Act 1972?

  • John Hudson

    Not so long ago, after a previous infamous bout of legal confusion, the council’s external auditor undertook to look into contentious legal decisions made by this council.

    The trouble with this is that the Head of Legal Services has the statutory obligation to defend actions of the council, so we pay unless the council decides that its actions were wrong and declines to defend.

    If the auditor mounts an investigation, we pay for this and his investigation just results in a legal view that the council is not required to adopt.

    This council is not above, or below, seeking independent legal advice, which we pay for, to support its actions, rather than seek an impartial view, as in the case of the Cleddau Bridge finances.

    In this instance, counsel advised that his brief did not include particular relevant sections of the Dyfed Act 1987.

    It is about time this council was taken into care and subjected to a wide-ranging independent inquiry.

  • Malcolm Calver

    I am sure Ian Westley would only want to do what is legal and that is why the legal advice it seems he has been given suggests that Cllr Boswell has met the criteria, rightly or wrongly.

    If he went against any legal advice he would also be criticised.

  • John Hudson

    Just another thought, I keep hearing about a lack of trust between members and officers at meetings, mostly from the CEO.

    While members are required to have regard to officers’ advice this does not mean, as in the past, slavish obedience.

    Councillors are required to apply their own common sense.

  • Keanjo

    Does David Edwards’ defeat by Boswell amount to a prejudicial interest?

  • Keanjo, no! David Edwards would be submitting his question as a member of the public, to which the councillors’ code of conduct does not apply.

    John, I was talking about the two high profile judicial reviews PCC lost with another councillor only yesterday. It seems little has been learnt.

    Malcolm, it is my understanding that a legal challenge against Mr. Westley is not only likely to challenge that his reasoning is legally flawed (i.e. that members’ seminars are incapable of being considered to fulfil S. 85(2) of the LGA 1972) but that the motives for claiming this interpretation are improper.

    That is to say, not only is the legal interpretation of the law wrong, but it was deliberately twisted in order to avoid the adverse ramifications (Boswell losing his seat) as a result of the incorrect legal advice being provided by the authority’s monitoring officer.

    So things are far more serious than you or Mr. Westley would realise – and I cannot agree. In fact, I’ve yet to speak to anybody who agrees with this claimed ‘interpretation.’

    Paul, on the second part of your question, on the basis that he has failed to attend a meeting for six months, legally Mr. Boswell has nothing to resign from!

    Martin, I think they should have a lot to be scared of – but as Cllr. Paul Dowson suggests, it’s all totally unnecessary and absolutely avoidable if only the law was followed.

  • Paul Absalom

    This is why Pembrokeshire people are so miffed about a 12.5% rise in council tax.

    The local authority seems to have inadequate people at the top of the authority spending our money needlessly.

  • Tomos

    Our public servants still haven’t grasped the fact they are servants and should do as councillors and the law tell them to do.

  • John Hudson

    Jacob, I remember the residential services fees but cannot remember the other one, could you please remind me?

    The adult services court case ended up with PCC having to come up with better sums, a consultant had got them wrong. It took a court ruling to get PCC to correct matters.

    There were also procedural defects in PCC’s administration that m’lud took a dim view of, in as much as it could not justify its decisions due to a lack of proper record keeping.

  • Hi John,

    This 2012 Western Telegraph article previews the cabinet’s discussion in the aftermath of the care home fees legal losses.

    The article says that a WT FoI request revealed: “the council’s costs of the first judicial review were revealed to be more than a quarter of a million pounds” – including the claimants’ costs.

    I assume all the accompanying reports will still be available on the council’s website within the January 2012 cabinet meeting reports.

    Cllr. Viv Stoddart has paid quite an interest in this particular legal howler.

    She is always quick to point out, and rightly so, that the council went into the legal fight full of confidence – but ultimately PCC lost both judicial reviews.

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