Jacob Williams
Tuesday 20th February, 2018

Doubling down

Doubling down

Some significant updates, today, on Pembrokeshire County Council’s latest debacle.

This relates to the authority’s legal duty, delegated by the council to chief executive Ian Westley, to declare the Pembroke St. Mary North seat vacant in order to hold a by-election.

It’s because the previously-elected member, Dai Boswell, failed to attend the legal minimum number of meetings so has lost his seat.

On the advice of the authority’s monitoring officer, the chief executive has so far failed to declare the seat vacant – claiming that Mr. Boswell fulfilled statutory attendance rules by going along to members’ seminars.

Read the original story here.

See yesterday’s update here.

I have now seen sight of a stern letter sent by a London legal firm to County Hall.

In a dramatic twist, it not only says PCC’s claimed legal interpretation is wrong but questions the motives behind it.

It suggests a court would find PCC’s interpretation so wrong as to amount to a deliberate misinterpretation in order to unlawfully allow a councillor to retain their seat.

The rest of the letter is just as strong.

On the basis that Welsh local government is devolved to the National Assembly and funds councils, I understand that an approach is due to be made by a member of the public to the responsible cabinet secretary.

Although Cardiff Bay doesn’t always like to get involved in the affairs of Welsh local authorities, it is well aware of Pembrokeshire and Carmarthenshire councils’ reputation as the ‘Wild West’ – and their view on the matter could be convincing.

In today’s other development, a slightly ‘clearer’ picture has emerged of how senior officers might try to justify their claim that members’ seminars count as meetings for attendance purposes, as set out in S.85 of the Local Government Act 1972.

I quote, below, the relevant legislation to assist readers in coming to their own view.

In my previous post I said that, to prevail in any legal challenge, Mr. Westley’s legal team would have “the unenviable task of convincing a judge” that members’ seminars amount to the categories of meetings outlined in subsection (2) of S.85.

This was on the basis that members’ seminars are informal events, and that S.85 (2) lists several kinds of meetings, beneath committee-level, which qualify for attendance purposes.

A Pembroke resident – and prospective litigant against the council’s failure to fulfil its legal duties – has got in touch with me following his correspondence with PCC’s legal team.

He asked them to explain exactly which type of ‘meeting’ they claim members’ seminars constitute.

The response he received rather surprisingly points to subsection (1) and not (2) of S.85.

I must admit it never occurred that anybody could be so…bold to even dream up the following theory.

This is the suggestion that members’ seminars could count as “any meeting of the authority.”

I’ve previously explained how all council meetings – including full council, committees, sub-committees and the like – must be constituted in accordance with a string of legal requirements.

Members’ seminars fail to comply with the most rudimentary.

In the context of councillors’ attendance requirements, the phrase “any meeting of the authority” can only refer to full council – as all other types of council meetings are covered at length by (2.)

So, if this does end up forming any legal defence, it’s the claim that unconstitutional, unadvertised, unminuted, behind-closed-doors members-only seminars are actually full council meetings!

Local Government Act 1972

Section 85

Vacation of office by failure to attend meetings.

(1) Subject to subsections (2) and (3) below, if a member of a local authority fails throughout a period of six consecutive months from the date of his last attendance to attend any meeting of the authority, he shall, unless the failure was due to some reason approved by the authority before the expiry of that period, cease to be a member of the authority.

(2) Attendance as a member at a meeting of any committee or sub-committee of the authority, or at a meeting of any joint committee, joint board or other body by whom for the time being any of the functions of the authority are being discharged, or who were appointed to advise the authority on any matter relating to the discharge of their functions, and attendance as representative of the authority at a meeting of any body of persons, shall be deemed for the purposes of subsection (1) above to be attendance at a meeting of the authority.


(3) A member of any branch of Her Majesty’s naval, military or air forces when employed during war or any emergency on any naval, military or air force service, and a person whose employment in the service of Her Majesty in connection with war or any emergency is such as, in the opinion of the Secretary of State, to entitle him to relief from disqualification on account of absence, shall not cease to be a member of a local authority by reason only of a failure to attend meetings of the local authority if the failure is due to that employment.

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  • Weasel Magoo

    Through the Looking Glass time!

    It is sad, as attempting to make up this nonsense would see you derided as an ill-informed lunatic by the very officers who have come up with it in the first place.

  • Patrick

    The monitoring officer would be wise to concede she has made a mistake and apologise to the councillor involved, however bitter the pill. What a mess!

  • Quill

    I totally agree Patrick, save to add the following thoughts.

    Yes, the piling evidence convincingly suggests to me the Monitoring Officer is very wrong legally, but it’s the Chief Executive who has the power or as Jacob rightly says duty to act on the authority’s (our, the public’s) behalf in this.

    Mr Westley’s evasive action now could still salvage something before it’s a total loss (money, reputation, pride, public confidence, I could go on).

    I almost feel sorry for Mr Westley however these are the sort of responsibilities well paid senior officials are expected to bear without fudging. It’s been a week already and the time to make the right decision is nigh.

    At the very least any decision to go against the obvious or expected course of action should be underpinned by a cogent, arguable case set out before the decision.

    Here it seems to be based on semantical hair splitting and angels dancing on pin heads, all thoughtlessly slapped together after the fact.

    This has got to be Mr Westley’s biggest test yet and I hope for our sake he knows what he’s doing. Pembs CC plastered all over the legal journals is the worst case scenario for all concerned.

  • Mark

    I would be very interested to see the external legal advice they have received, to know who requested it, and what instructions they gave.

  • John Hudson

    As I have said before, statutory officers, the CEO, Director of Finance, Head of Legal Services have a responsibility to ensure that the council does not make unlawful decisions.

    Usually, it is a requirement for them to consult with each other. If they determine to follow a dubious course, the Monitoring Officer, with a heavy personal responsibility, has the right to report direct to council.

    While all of this at the moment is a matter of legal interpretation, PCC has a history of making some remarkable interpretations which all cost us money, as with this one.

    In case law, Directors of Finance have been found to owe ratepayers a special duty of care in the use of their money, so it may not just be a matter of legal interpretations or opinion that needs to be considered.

    What say the good citizens who are denied representation at decision-making meetings of the authority?

    Why are the unelected officers so determined to exclude them from representation?

    Are we now able to attend “seminars” if we are told now when they are to be held and can we see the true and fair record or minutes of them?

    It may prove to be a very interesting court case. I can’t see apart from drawing attention to this matter that councillors have any legal role in the outcome, unless officers backtrack, when they can scrutinise the actions and decisions of officers.

  • Dave Edwards

    But where is Captain Westley whilst his ship is heading for the legal rocks?

    Away on a Welsh course I understand, leaving his inexperienced crew to face disaster.

    I am hearing rumours that the black arts department in the Kremlin have sent out a “confidential” memo to all councillors which includes a warning that commenting on the Pembroke St Mary North debacle could be prejudicial to Mr Boswell’s defence at his upcoming criminal trial.

    Conflating the two unrelated issues could be seen as a naked attempt to stifle debate.

    Can anybody confirm receipt of this memo? If it is true, the London based lawyers you mention will be very interested I am sure.

  • Clive Davies

    So presumably the argument is that briefings ringfenced to councillors are intended for the express purpose of advising the authority. Seems tenuous to me but is it desperation born of a fear that action to remove Dai Boswell could prejudice his upcoming trial?

    But why has Dai Boswell not been attending formally constituted meetings? His bail conditions presumably do not preclude him from doing so – so the decision to not attend is his and his alone.

    How can acting on that possibly in any sense be compromising? He has chosen what to cherry pick. But why?

    And what will be the situation should he turn up for the March full council seeking to act as a councillor?

    If he’s admitted and subsequent litigation reveals him as disqualified will that invalidate the whole meeting?

    You couldn’t make it up!!!

  • John Hudson

    I pointed out in relation to the adult residential charges “case” that the council’s recording of meetings had been found wanting in the first hearing.

    The council’s then legal experts prevented scrutiny of these internal corporate failings, by councillors, on the grounds that such activity could affect the ongoing court proceedings.

    I think I recall in the mists of time that the council, under its previous CEO, defended the innovation of holding members-only seminars that did not have to comply with formal council meeting requirements, because they weren’t subject to the same rules as formal meetings and were classed as dissemination of information meetings without decision making powers. Such meetings do not have to comply with political balance rules.

    There must be a reason for the rule about non attendance at council meetings.

  • Weasel Magoo

    I can neither CONFIRM nor deny that I have also heard a rumour of a memo being sent to councillors in the terms you suggest, David Edwards.

    I repeat: neither CONFIRM nor deny.

  • Dave Edwards

    As the Monitoring Officer goes further and further out on a limb, I learn that the “London lawyers” are acting on behalf of the Labour Group on the council.

    Political parties can be a force for good in local politics after all!

  • Dave Edwards

    On the question of the “confidential” email, Jacob, can you, without revealing its content, confirm that councillors have received it?

  • Chas.

    Once again OUR council is spending OUR money to prop up dubious decisions made by overpaid officials (shades of PCC’s last CEO Bryn Parry-Jones).

    It is time this wasp nest was fumigated. And they have the bare faced cheek to insist on a further 12.5% rise in Council Tax?

    Incidentally are they ‘giving’ OUR Cleddau Bridge to Welsh Highways therefore the tolls will go to them? Hence the sudden shortfall in revenue?

  • John Hudson

    Although the council’s constitution provides a list of definitions which includes ‘Member Body’ (all the meetings of committees) it does not define ‘meetings’.

    It does recognise that, inevitably people will have different views about what certain passages mean.

    Helpfully, it provides the advice, that in situations where clarification is required, the Monitoring Officer will determine the interpretation and application of this constitution.

    Presumably the independent state of Pembrokeshire is not above and is subject to statutory authority permitted by laws passed by government.

  • Preseli View

    Maybe what needs to happen is that the next time David Simpson is out with his ex Round Table Tory friends they insert some steel into his backbone.

    Armed with this reinforced spine he could tell Westley to call the by-election and encourage the Monitoring Officer to consider her position.

    Oh, just a minute, there are pigs flying outside my window.

  • John, another reader pointed me towards this constitutional angle yesterday and I will be covering it in my next update, either tonight or tomorrow.

    Dave, yes I can confirm that councillors did receive an email emblazoned with “CONFIDENTIAL.”

    Suffice to say, the author’s use of the term ‘confidential’ is not without controversy. I will discuss this, also, in my next post.

  • Malcolm Calver

    I note that David Edwards informs us that “London lawyers” are acting on behalf of the Labour group on the council and suggests that, because of this action, political parties are a force for good in local politics.

    The local Labour Party seems to be financially sound to take this action, but in light of the proposed increase in council tax they should concentrate on the plight of those working people in Pembrokeshire who cannot afford such increases but perhaps that is their aim in replacing Cllr Boswell with one of their own.

  • It is always dangerous to be categoric about issues involving legal interpretation, but, that said, it is difficult to see how attendance at a seminar could possibly fulfil the requirements of S 85 of the Local Government Act 1972.

  • Dave Edwards

    The trouble with not coming clean when caught in wrong doing, as Oxfam are finding out, means that as information drips out things get worse. And so it is within Pembrokeshire County Council.

    When Cllr. Boswell, as he then was, was charged the Conservative Group moved swiftly to remove him from their number.

    However, it is now emerging that Cllr. Aaron Carey (Con member for St Mary South) was present at the meeting with the Monitoring Officer when the “seminars meet the attendance rules” advice was given.

    Was Cllr. Carey acting for the Tory group or as an individual without the group’s knowledge? More importantly, why didn’t he challenge and/or make this legalistically nonsensical opinion public?

  • Keanjo

    If Boswell was advised by the council’s Monitoring Officer that he was fulfilling the attendance requirements by attending seminars, I cannot see that the Chief Executive has any moral or legal reason to exclude him and call an election, without giving Boswell grounds for legal action against the Monitoring Officer and the Authority.

    Surely the correct action would be to formally advise him of the proper interpretation of the attendance rule and his duty to attend.

  • Keanjo, the monitoring officer giving the then councillor Boswell the incorrect advice has no bearing on anything.

    The law says that if a councillor fails to attend a qualifying meeting within six months of the last then he or she is no longer a councillor.

    It’s not qualified like you suggest. It doesn’t say: “…but if he or she was given the wrong advice and followed it then this law doesn’t apply.”

    You also raise the possibility of ramifications for the monitoring officer and legal comeback.

    Has it not occurred to you that this failure to declare the seat vacant – justified on outrageous grounds – could have everything to do with this quandary you’ve mooted?

    It’s certainly occurred to the London legal firm, whose scathing letter I have seen.

  • John Hudson

    With the adult services ‘case’ a number of statements made in the council’s defence could not be substantiated by recorded evidence, pre-letters/minutes of meetings.

    As I understand matters now, all decisions are meant to be recorded and this extends to those made by officers. There is a section on the website for such delegated decisions by directorate.

    Presumably, seminars count as approved meetings for the purposes of travel/subsistence expenses, if claimed, even though they may not meet the strict legal criteria.

    I suppose that turning up at County Hall for “portfolio duties”, even if not for formal meetings, counts as an approved duty.

  • Keanjo

    Jacob, I don’t want to labour the point but the interpretation of the law was given by a legal expert appointed by the council and the council is responsible for any action by their employees.

    Very careful thought is needed before any action is taken which could result in council tax payers having to stump up yet more money.

  • John, as you say, there may be wide interpretations – probably supported by case law – of what constitutes a ‘meeting’ in all sorts of local authority contexts.

    But in the context of the six-month attendance rule, S. 85 of the LGA 1972 is quite clear what qualifies – and it’s wide-ranging.

    I’m sure you’d agree, however, that seminars are incapable of matching any of the categories listed, due to reasons previously set out!

    Keanjo, I couldn’t agree more with your last line about the risk to council taxpayers’ money.

    I and many others think that fear will be realised if the chief executive, under delegated powers, bases his decision not to declare the seat vacant on spurious legal grounds.

    I am confident that the council would be wide open to a costly legal challenge without a leg to stand on.

    I can then see the council throwing money at a defence in the belief that the council is in the wrong, but in the hope of a miracle ruling in its favour.

    I would also add that there would then be serious questions over whether the refusal to declare the seat vacant was made in the hope that nobody would stump up the courage and cash for a legal challenge.

  • Dave Edwards

    Malcolm, I accept your visceral hate of the Labour Party which you bring out every time I or anyone else suggests it has done something useful, but surely, challenging the ridiculous opinion of the Monitoring Officer is a good thing.

    In the interest of clarity, it was not a local Labour Party branch that contacted the law firm – our branch in Pembroke and Pembroke Dock has around £320 in the bank. It was actually the Labour Group in PCC.

    Labour councillors pay 1% of their allowance into a fund to support expenditure by candidates in local elections who are unable to pay for themselves. They also pay 2% to the Association of Labour Councillors who give advice and support on local government issues to Labour groups.

  • Quill

    I suspect Ian Westley is under a similar misapprehension to that which Keanjo outlines, this idea that the (highly questionable, putting it mildly) legal advice has been provided by a “legal expert” (!) so it would be foolhardy to dismiss.

    If we can learn anything from the history of legal errors at PCC and how they came about (whitewashing attempts, backside covering, trying to stonewall elected members, introducing illegal fat cat perks) then it’s that it’s a bloody good thing for councillors and the public to be sceptical of the lawyers and their advice, whether internal or external.

    It’s not unique to Pembrokeshire either. I understand Carmarthenshire County Council’s legal department is quite comparable.

    In almost every profession under the ‘legal’ umbrella I can think of, personal reputations mean everything and are fiercely guarded.

    But a legal job in local government comes with little accountability, is usually for life, and the sort of ‘mistakes’ of which the private sector would be wholly unforgiving rarely result in career setbacks or adverse personal ramifications.

    In other words, they can get away with a lot, and I hope that’s not why Mr Westley seems to be ‘just going along with things’.

  • Malcolm Calver

    David, I am sorry that you feel that I have a visceral hatred of the Labour Party any more than any other party, but it is time I feel that it started to represent the views of the people it was set up to represent, which in my humble opinion it has failed to do over recent years.

    Getting back to the subject of Cllr Boswell, who I believe you stood against in the last election, perhaps you would explain to the readers of this website why you believe officers at County Hall have gone it seems to extreme lengths to ensure his survival, surely they are not in fear of a Labour Party candidate being elected in the ward should an election be called.

  • Keanjo

    Quill, you seem to be misunderstanding what I posted.

    What I am saying is that if a person employed by the authority gives advice, the authority is responsible for that person’s actions and I still think, if Boswell were excluded, he could take action against the authority.

    Obviously others feel that if he is not excluded some other party could take legal action against the Chief Executive for not carrying out his legal responsibilities.

    The devil and the deep blue sea comes to mind but whatever happens will bring yet more discredit on the council.

  • Dave Edwards

    I am sure that the prospect of a Labour, Plaid Cymru, Tory or an unaligned candidate being elected carries no weight at all in this matter with Westley and co.

    Neither is it a signal of support for Boswell, he is as insignificant as any other candidate. It is clearly a defence of the organisation at the expense of their duty to uphold the law.

    If we rehearse the sequence of events, I imagine it looks something like this:-

    1. Boswell realises that he needs to attend a qualifying meeting before February 14th or risk losing his seat under the six month attendance rule.

    2. He is not prepared to attend a full council meeting so he needs a get out of jail card as he is not a member of any type of committee or other body.

    3. He consults the Monitoring Officer who through ignorance or incompetence gives incorrect advice that if he attends members’ seminars they count for attendance purposes.

    4. Boswell does not think of getting a second opinion believing, probably, that he has been given a ruling rather than just advice.

    5. On February 14th, when the six months are up and the situation goes public, PCC are in a quandary. Should they uphold the clear intent of the Local Government Act 1972, or close ranks and defend the indefensible view of the Monitoring Officer that seminars are qualifying meetings for attendance purposes?

    6. They choose to defend one of their own rather than the law.

    7. I have no idea!

  • Keanjo

    Dave, that is a fair summary of events. Number 7 will be interesting. Incidentally I have heard a suggestion that Boswell intends to appear at the March full council meeting.

  • Quill

    Excellent summary Dave. I would cut Mr Boswell the following slack: in this scenario he didn’t have to say to the monitoring officer that he was unwilling to attend a full council meeting.

    He may have been offered that advice without needing to give that prompt. A true conspiracy theorist would add that his absence from full council was in the council’s interest, so the advice was mutually convenient, albeit flawed.

    On number seven it sounds like there are many others in County Hall who haven’t got a clue what to do next!

    Keanjo, that may be so (I doubt it actually, but that’s a different topic) however even if Mr Boswell has a cast iron case against the monitoring officer for her poor advice, that would be no defence to Mr Westley if challenged over his failure to fulfil the council’s legal duty to declare the seat vacant.

  • John Hudson

    This used to be a decision for council. I recall some years ago a councillor was indisposed for a long time and the council determined that although he had been ill and hospitalised for the requisite period, he was allowed, by council decision, to continue in office.

    Is this discretion within the authority delegated to the chief executive, exercised, of course, within the stated purposes of the constitution?

  • Keanjo

    Well gentlemen, it turns out that my opinion prevailed!

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