Jacob Williams
Monday 26th February, 2018

If it doesn’t sound or act like a council meeting…

If it doesn’t sound or act like a council meeting…

Public interest in Pembrokeshire County Council’s latest legal scandal shows no sign of abating.

As the authority’s lawyers went further out on their limb with the suggestion that members’ seminars count as full council meetings, the odds of a judicial review against the chief executive’s failure to declare the Pembroke St. Mary North seat vacant slashed!

On Tuesday afternoon councillors received an email emblazoned with CONFIDENTIAL – in bold, block capital, red lettering.

Authored by the monitoring officer, it references the ongoing situation but it’s difficult to see what’s confidential about it.

It warns councillors about making statements which might prejudice criminal proceedings.

This is a reference to former councillor Dai Boswell’s upcoming trial on historic allegations of child sex abuse which has nothing to do with his failure to comply with council attendance requirements.

Indeed, it’s difficult to see how his relinquishment of his seat, or discussion of the council’s steadfast denials that this has happened, is capable of prejudicing Mr. Boswell’s trial on wholly unrelated matters – as neither makes a suggestion or judgement as to Mr. Boswell’s conduct.

I am of course quite familiar with sub judice and careful that anything appearing on jacobwilliams.com – in my name, or my readers’ – is not prejudicial to any trial.

However it has occurred to me and others that the circular could have a chilling effect on councillors’ legitimate discussion of the authority’s refusal to comply with its legal duty to declare the Pembroke St. Mary North electoral division vacant.

After all, the council has quite an appalling record of crudely misconstruing the law – and the facts – to frighten councillors off thorny topics.

In 2014 Cllr. Mike Stoddart tabled a motion that councillors be granted access to correspondence between the authority and Oxfordshire-based Irishman, property developer Cathal McCosker.

This was where the council asked Mr. McCosker to provide evidence of how he had spent historic property restoration grant cash.

Mr. McCosker refused to play ball and responded by making a total repayment offer to get the council and other interested parties off his back.

Mike had previously uncovered a haul of evidence suggesting fraud by Mr. McCosker and companies under his control by obtaining grant money for work not done.

The authority’s lawyers tried every trick in the book in their bid to derail Cllr. Stoddart’s request to see this correspondence.

They said that the police had objected to the documents’ release citing sub judice – the basis that it could impact upon any legal proceedings against Mr. McCosker.

The invocation of sub judice was totally wrong, not least because it is only triggered when proceedings are active. McCosker had not at that time – and still hasn’t – been arrested, let alone charged awaiting trial.

For good measure councillors were also bullied with the claim that, in its plea for the information to be withheld from councillors, Dyfed-Powys Police force said disclosure would impinge Mr. McCosker’s Article 6 human right to a fair trial.

Not only was that wholly irrelevant legally, but Mr. Westley – then in an acting capacity – had to make a big admission to the council chamber when the game was up.

Mike had dug around further and discovered that this ‘Human Rights Act claim’ had never even been made by the police – it was totally fabricated by County Hall officers!

On that same occasion, to shore-up their dubious claims over the law, PCC officers sought external legal advice which they had intended to use in what can only be described as an attempt to ambush councillors.

It first surfaced during the December 2014 full council meeting where Cllr. Stoddart’s proposal was determined.

During the meeting it also emerged that, for reasons still unknown, a copy had been secretly handed to then cabinet member, and then IPPG member, Cllr. Rob Summons, and he alone.

Tenby councillor Mike Evans was quick to demand to see the correspondence which commissioned this ambushing advice.

It was a canny request because it subsequently revealed that, in her preamble, the council’s head of legal services Claire Incledon told the English-based lawyers that Mr. Westley was “anxious that this matter will be raised” at full council and “would like to have a strong steer.”

I’m not making this up!

In response to Mrs. Incledon’s approach, the Bristol legal firm, St. John’s Chambers, gave impeccable advice – saying councillors had no right to the information.

However they had been asked to advise on councillors’ entitlement to information held by the police – whereas the issue was of councillors asking for sight of information held by the council.

As anybody knows, when it comes to lawyers, everything depends on the question asked – and this was a classic case of obtaining advice on a false prospectus.

Ultimately these scare tactics to stop councillors getting their hands on the McCosker files were all in vain.

Full council rejected the spurious legal arguments, voting to approve Cllr. Stoddart’s request.

We don’t know which firm PCC’s external legal advice came from on this latest legal debacle – nor what question they were asked.

The advice is rumoured to be ambiguous, so, even if they were asked the right question, it doesn’t sound like they think Mr. Westley’s holding a strong hand.

The monitoring officer was chiefly involved in the adoption of PCC’s long-awaited new constitution over recent years.

Early on it contains a glossary of words and phrases contained within.

The term ‘Judicial Review’ doesn’t feature on this alphabetical list of definitions, but we are given a list of meetings which constitute a ‘Member Body.’

Readers will note the conspicuous absence of anything sounding remotely like members’ seminars.

Strange, you would think, if we (and potentially the courts) are expected to believe that members’ seminars are “meetings of the authority” according to S. 85 of the LGA 1972:

The very next entry in this Local Government for Dummies-style glossary defines ‘Monitoring Officer’:

Regular reader John Hudson points out that, a couple of pages later, this postholder’s big say on interpreting the constitution is set out thus:


Should a judicial review be taken against the council, and it claims in defence that members’ seminars are council meetings, it will be quite interesting for the historians.

It would sound like a clear admission from the authority that it’s learned nothing from the court’s prior scalding criticisms on making and maintaining proper records of decision-making forums.

I refer to the 2011 judicial review in which PCC was challenged on its setting of residential care home fees.

The then leader, Cllr. John Davies, spoke confidently of the authority standing up to legal scrutiny and prevailing in court.

But the council lost big time.

Its decision-making process was found to be legally improper – making erroneous financial calculations, failing to take records of meetings and decisions, and failing to consider relevant factors including the impact on service users.

In particular the judge hammered the authority over its almost complete absence of contemporaneous decision-making records to back-up claims in its defence.

“There is no evidence,” or variants thereof, appears no fewer than twelve times in the ruling.

Here are some other quotes:

“I have been hampered by the lack of contemporaneous documents from the Council.”

“…good administrative decision making and practice demands appropriate recording and communication of decisions made, and the essential reasons for them…”

“…the lack of substantial evidence in relation to the Council’s decision-making process, to which I shall return…”

“…good administrative practice demands that decisions, including essential reasons for decisions, are recorded.”

“The importance of proper notification of a decision is not a technicality: it is a fundamental constitutional principle, important to trigger an individual’s right to challenge that decision in the courts…”

“…the Council failed to take into account matters other than its own financial resources in a proper and lawful way.”

Other than being a judicial review the council lost, readers may be wondering what relevance the care homes case has to the current situation.

The claim that members’ seminars count as a “meeting of the authority” – i.e. full council meetings – cannot bypass the fact that they would still have to comply with an array of legal requirements.

Among the most basic and well-known of these are that members be summoned, minutes be taken and free public and press access.

The council will be unable to produce any evidence of these rules having ever been met by seminars, as they never applied.

So having previously been scolded for making uncorroborated claims in defence of a judicial review, PCC could be about to repeat history.

These rules have never applied because seminars, as held at PCC, are incapable of being considered by any reasonable interpretation to comply for attendance purposes set out in S. 85 of the LGA 1972.

This point was actually spelt out in a novel way to Claire Jones, PCC’s monitoring officer, by London lawyers acting on behalf of the Association of Labour Councillors in their three-page epic:

“Thus if a members’ seminar is not subject to these legislative requirements or the council’s own standing orders, in common parlance if it does not sound like a council meeting and it does not act like a council meeting then it is more than likely not a council meeting!”

That letter was emailed a week ago yet I’m told nobody at County Hall has even acknowledged its receipt.

If they thought it was a bluff, or that things would all go away, I’m told a second letter is now winging its way.

Marked URGENT, it reemphasises the stark legal position to chief executive Ian Westley in no uncertain terms, and reasserts the intent to proceed with two forms of legal action against his failure to fulfil his delegated legal duty.


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21 Comments...

  • Mark

    Sounds like they are all burying their heads in the sand.

  • Weasel Magoo

    Who could possibly have anticipated such an unfortunate collision between the Council’s constitution and the Monitoring Officer’s scrabbling around in the back of a dusty draw for any old excuse not to do anything.

    Here’s my tuppence worth: the Monitoring Officer gave defective advice, but was confident that it would not be found out because Dai Boswell’s trial was due to be concluded by now. A verdict one way or the other would have let the Monitoring Officer off the hook.

    This whole thing is beginning to smell like a six day old mackerel wedged behind the fridge!

  • Dave Edwards

    Jacob, this can of maggots (as a gardener, worms are useful) is growing by the day.

    Two further scenarios are emerging if, as rumoured, Mr Boswell attempts to attend the March 8th council meeting.

    As a member of the public he cannot be admitted to the meeting so the council would be acting “ultra vires”, and if Mr Boswell pretends to be a councillor he is in breach of LGA 1972 section 92.

    Either way, I see legal injunctions and judicial reviews on the horizon.

  • Quill

    I noticed an interesting Facebook comment by a county ratepayer.

    I can’t find it now but from memory they said something like, ‘the council is supposed to have had a new dawn, but which other councillors are going to have their voices heard?’

    I hope they aren’t afraid to speak out because of something they may have been told in a “confidential” email.

    Setting their personal viewpoints aside, all councillors should be interested in this, if only for financial reasons on behalf of their constituents.

    It’s fast appearing to be the next big expensive legal scandal to rock the council when we can all least afford it.

    Such folly with public money should be opposed and scrutinised. Does anybody know, maybe John Hudson does, if councillors can involve themselves in matters (particularly legal matters) relating to council functions delegated to officers?

    Can councillors for instance intervene and decide not to contest any legal challenge? Can they also prevent even more costly lawyers being instructed? So many questions.

  • Flashbang

    What is wrong with you councillors not ordering a complete clean out from top to bottom of all those drawing taxpayers’ money for abysmal service. Why is the tail wagging the dog?

  • Malcolm Calver

    You would think these publicly-financed officers/employees at County Hall would have more important business to attend to than trying to obscure things and defend the indefensible.

  • Keanjo

    Under the circumstances County Councillor Boswell could be medically stressed and unfit to attend full council meetings and the Chief Executive could be taking this factor into consideration.

  • Cllr Paul Dowson

    I am embarrassed to be a part of this council!

  • John Hudson

    You raise the issue of independent legal advice sought by the Council. An example might be the case of the Cleddau Bridge tolls under the terms of the 1987 Dyfed Act the Council, as a way forward was obliged, by the WAO, to seek legal advice in support of its treatment of Toll Income.

    The Council’s report on Counsel’s opinion quotes “The strict requirements of Section 24 (application of revenue) were not evidenced in his instructions”.

    The Council’s custom and practice of applying annual surplus toll income under the Act is proscribed by Sections 14 – Revision of tolls, 24 – Application of Revenue, and 25 – As to Deficiencies, including 25 (3) – as to surpluses.

    Despite unanswered questions raised by some Councillors on these relevant sections of the Act, Council, by a majority, approved to continue the Council’s custom and practice of applying the annual surplus generated by toll income to non-bridge county wide transport matters.

    At this stage after a financial review, the first in 20 years, it was identified that some £11m of aggregated surplus toll income had accrued and had been spent.

    So after an External Audit Review which prompted independent legal opinion, a Council decision as advised by an O&S Committee and unaddressed outstanding legal matters, council’s use of toll income of some £1.9m p.a. was protected as well as the “correctness” of advice by council officers.

    As is known, if the Bridge is taken over by WG the Council stands to lose £1.9m a year. Even if WG continues tolls, bridge users may benefit by being required to meet only the annual cost of maintaining the bridge.

  • John Hudson

    After a bit of delving, the council’s powers in respect of legal proceedings derive from the Local Government Act 1972, Section 222 – Power of local authorities to prosecute or defend legal proceedings.

    (1) Where a local authority consider it expedient for the promotion or protection of the interests of the inhabitants of their area –

    (a) they may prosecute or defend or appear in any legal proceedings and, in the case of civil proceedings, may institute them in their own name, and

    (b) they may, in their own name, make presentations in the interests of the inhabitants at any public inquiry held by or on behalf of any Minister or public body under any enactment.

    This is mirrored in the council’s constitution Section 5.3 (page 115) in delegations given by the council to the Head of Legal and Committee Services.

    The statutory qualification S222 (1) regarding “the interests of the inhabitants” is missing, and the Council has also delegated S223 for any officer of the Council to act for the Council, presumably in the interests of the inhabitants.

  • Dave Edwards

    The simplest way out of this dilemma might be for a councillor to request the Chairman to allow an urgent motion at the 8 March full council meeting to amend the scheme of delegation in respect of declaring local government ward vacancies.

    If this happened it will no longer be the duty of the Chief Executive to declare the seat vacant on the council’s behalf, the duty will revert to full council acting in public.

    Step up a brave Councillor.

    Cllr Dowson, perhaps?

  • John Hudson

    Perhaps it is about time that delegations to officers in respect of finance, contracts and etc. etc. are reviewed in the light of current circumstances.

    These were given by council based on those going back years. Next year’s budget report (appendix E), lists proposed budget reductions in both legal services (-£60k) and the Monitoring Officer (-£32k).

    This raises the question about where the money is to pay for optional unforeseen legal activities.

    Departmental officers can only spend money that is in their approved budget, but this does not appear to restrict legal activity. Such costs only come to light after the event, and only then if a concerned councillor asks.

    Any councillor can by tabling a Notice of Motion, propose such a review of delegations in the interests of the county’s inhabitants.

    Perhaps the council has neither the capacity or the money?

    The terms of authority delegated to officers to act on behalf of the Council, is permissive and rests with the Council. It does not have to delegate anything unless officers are required to undertake actions by express statute when it is not a delegation!

    Who is looking after our interests?

  • John Hudson

    Jacob, this full council report from 2012 may be of interest.

    It appears that there was and is a clear difference between formal council meetings and seminars, or at least there was in the mind of the council’s lawyers at that time.

    Also note that, in accordance with the following report, for the 2016/2017 municipal years there are still two attendance tables provided on the council’s website.

    Report of: Head of Legal and Committee Services

    Date: 23 February 2012

    GOVERNANCE ISSUES – PUBLICATION OF MEMBERS’ ATTENDANCE RECORDS

    Corporate Governance Committee at its meeting on 21 November 2011 considered a range of governance issues submitted by Members to the Chairman of the Committee in response to a letter circulated by him to all Members requesting the same. Amongst those issues was a suggestion by Councillor Myles Pepper that Members’ attendance records be published.

    The Committee resolved to endorse in principle the adoption of publication of Member attendance records on an annual basis, but that further consideration of the matter be deferred pending receipt of a report as to the precise definition of the form of the attendances record to be included in the publication scheme.

    Such further information was submitted to Corporate Governance Committee at its meeting on 6 February 2012.

    Arising from their deliberations, the Committee resolved to recommend to Council as below.

    RECOMMENDATION:

    That it be recommended to Council that annual publication of Members’ Attendance Records be implemented on the following basis:

    (a) That the recording period cover each municipal year, and the record apply to attendances at formal Council body meetings (Council; Cabinet; Committees and Sub-Committees).

    (b) That the data be published with the annual publication of the schedule of Members’ Expenses.

    (c) That on a trial basis for the first twelve months of the scheme, attendance at Member training events/seminars be included in the attendance record.

  • Very good detective work, John, well done!

    This is significant as it evidences that the authority does not, and never has, conducted its operations in the belief that members’ seminars constitute council meetings – or at the very least, that there has always been a clear distinction made between the two.

    It lends weight to suspicions that this claim has been made up to avoid the adverse legal ramifications of the monitoring officer’s poor advice, i.e. that Mr. Boswell, having followed it, has legally relinquished his seat.

    I’m sure any litigants will find this useful in challenging Mr. Westley’s failure to fulfil his delegated legal duty to declare the seat vacant.

  • Quill

    Thank you John Hudson! You can always be relied on to deliver the goods.

    You should be a councillor or maybe the council’s next monitoring officer.

    Pembrokeshire owes people like you a debt of gratitude for you demonstrate far greater public service than countless others who claim to be looking after our interests.

    As more and more days go by it’s looking less likely that the chief executive will do the honourable thing, so he and his team had better be prepared for the legal onslaught.

    I want front seats in the courtroom.

  • John Hudson

    While on the matter of general delegations, officers have advised that under the provisions of the Local Government Act 2000 certain functions by default are to be the responsibility of the Cabinet.

    The full range of available function responsibilities/authorisations are set out in The Local Authorities (Executive Arrangements) (Functions and Responsibilities) (Wales) Regulations 2007 No 399 (W45) as amended. I recommend this as a good read, it’s on the web!

    Officers have advised that the Full Cost Recovery Strategy falls in a “default” category and has therefore been approved by cabinet.

    The above Regulation, Section 6 Schedule 4, gives discretion to local authorities and sets out circumstances on which functions are not to be the responsibility of an authority’s executive or cabinet.

    Function 1 of these relates to the adoption or approval of a plan or strategy (whether statutory or non-statutory) where the authority has local discretion to determine whether the plan or strategy should be adopted or approved by full council rather than the cabinet.

    The council’s Full Cost Recovery Strategy is a non statutory strategy and as far as I am aware council has never been given the option of considering whether this plan, which involves income generation by charging service users, should be a proper matter for them.

    In my view given the increasing role of fee and charge income within the Council’s budget, it rests alongside but separate from the budget decisions which has to be a council decision.

    As it is, estimated fees and charge income already determined by cabinet is included in the draft budget for approval by full council.

    Cabinet have already questioned full cost recovery charges and I would also point to the draft minutes of the Policy Pre-Decision O&S committee meeting of 25 January 2018, minute 16.

    WE may be taken on an expensive ride without proper consideration of all relevant circumstances.

  • Rosieone

    Where is the leader and his cabinet in all of this?

    Have we just staggered from one detrimental arrangement – Jamie Adams and the IPPG being firmly in the pocket of officers and a collective of “yes” men.

    To another – David Simpson & co being deemed to be of little consequence and too weak to stand up to Mr Westley et al.?

    One would have hoped that the cabinet were being collectively vocal about this and applying serious pressure to do right by the people of Pembrokeshire in general and Boswell’s ward in particular.

    It seems, however, that they are as amenable to officer persuasion as the last shower, albeit for different reasons…

  • John Hudson

    I do not understand the comment about being too weak to stand up to officers.

    Following the election the council is to be run on the basis of an unaligned majority. The cabinet has no mandate to speak for, or direct, the 60 councillors who are “individually independent” and members of several political groupings.

    The cabinet can come to a collective view and offer their thoughts and recommendation to council for decision. Precisely what has happened over the budget with options for 5%, 8% or 12.5% council tax rise with identified consequences for decision by full council.

    It was the previous IPG-led Council that determined that the CEO be given delegated authority in the matter of vacancy declarations. Only Council can revoke that decision.

    After some 20 or so years, the whole system of delegations to cabinet and officers to act on behalf of the council must be comprehensively reviewed.

    This is all a matter of law handed down, designed to prevent the abuse of power to protect our rights.

  • Dai Trump

    How sad this all is, the monitoring officer will obviously not back down and the chief executive will not do the decent thing.

    We will pick up the cost of their legal fees for more incompetent litigation unless you as councillors put a stop to it.

    If this goes to court then all I can say is bring back Dyfed as soon as possible, rid Pembrokeshire of officers and weak, ineffective and self serving councillors.

  • Patrick

    The C.E.O. on a couple of webcasts has stated his ambition is to arrive at a point where trust, shared values and respect are the norm between councillors, officers and the public, but I feel little progress will have taken place in this regard because the monitoring officer continues to defend her opinion that attendance at informal seminars counts as attendance at council meetings, although seminars are not a forum for councillors to represent and vote on behalf of electors.

  • Malcolm Calver

    Jacob, please would you clarify the position in regard to so-called “seminars” after the capitulation to the so called “Monitoring Officer” over the Cllr Boswell fiasco.

    If these meetings are now classified as official council meetings will they be in future open to the press and public?

    It would also be of benefit to the public if these meetings were webcast as it would be interesting to witness if any councillors contribute anything to the debates.

    The majority of county councillors do not at present take part in the meetings which are now webcast and you wonder how they justify their worth.

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