Jacob Williams
Monday 5th March, 2018

A civil question deserves a civil answer

A civil question deserves a civil answer

When councillors table a question or notice of motion (NoM) to full council meetings we’re all emailed as and when they are approved.

Before this rule came in, the first we heard of what our colleagues had tabled was when the public agenda was published a week before the meeting.

This change was brought in during the last council term by Labour group leader Cllr. Paul Miller.

He was concerned at the lack of any safeguard preventing questions submitted after the deadline being slipped onto the agenda right up until it was published.

And so it was, last week, that councillors were notified that three questions and a notice of motion tabled by Tenby’s Cllr. Mike Evans: “have now been approved and will be placed on the agenda for Council on 8 March.”

All three related to the large swathe of council-owned land, Brynhir, on the way into Tenby.

It’s been the source of controversy among some vocal locals opposing its sale for residential development, particularly executive-style homes, and the loss of what they consider to be a valuable amenity.

Cllr. Evans’ NoM was:

That this Council resolves to –
Withdraw from open sale the land owned at Brynhir Tenby, so that a social housing scheme to meet the needs of local residents, including social rented, low cost ownership and innovative self build opportunities can be brought forward in cohesion with Pembrokeshire Council’s HRA
[Housing revenue account.] This would also enable Council to maximise any capital revenue receipt.

His three questions were:

1 What financial offers have been received to date for the Council owned land at Brynhir Tenby, including details of any conditions attached by prospective developers in relation to the offers made?

2 Has this Council taken any opportunity over the last 18 months whilst marketing this land, to talk with a SRL? [Registered social landlord.]

3 What values has this Council attributed to this land over the last 10 years?

In a key point we’ll revisit, Cllr. Evans was very alert to the potential sensitivities the three might raise, helpfully stating with his questions:

“If any of the answers above contain commercially sensitive information, I am happy for Council to resolve to go into private session.”

When councillors resolve to go into private session, only councillors are privy to what’s said or circulated because the public and press are excluded for the duration of that item.

Three days later, on 1st March, Cllr. Evans got an email from County Hall telling him that due to an “understandable mistaken belief,” his first question was now deemed off-limits and was going to be scrubbed from the meeting’s agenda, published the following day.

The authority’s head of legal and committee services, Claire Incledon, said that the change of tune came about following the “receipt of information from the Property Department.”

Apparently, they say that Mike’s first question “discloses exempt information, that is information relating to the financial or business affairs of any particular person/company.”

Accordingly the land is “still being marketed” and any offers submitted so far have been “made in confidence.”

The St. David’s Day email went on to suggest that, if PCC gained the reputation of disseminating private commercial affairs publicly as per Mike’s request, it could deter potential future bidders thus harming this and other council sales.

It continued: “The public interest in maintaining the exemption outweighs any public interest in disclosing the information.”

The council’s constitution sets out a number of grounds on which the chairman, Cllr. Paul Harries, “may reject a question,” including if he “considers that the question discloses Confidential or Exempt information.”

For good measure, the constitution says that “The decision of the Chairman in consultation with the Head of Legal and Democratic Services shall be final.”

Readers, particularly Cllr. Evans’ constituents, might have something to say about the fairness in all this.

What about his question previously being given the thumbs up by the chairman under his so-called ‘final’ ruling?

Well this dilemma is obviously something that occurred to the council’s legal department, adding: “despite in this case the initial indication of acceptance,” it’s actually their opinion that the chairman is free to change his mind right up “Until the matter actually reaches the Agenda”!

It has bizarre similarities to my own experience exactly three years ago, see: Don’t pee on my leg and tell me it’s raining!

Like that example, I’m afraid this is yet another case of PCC’s constitution being misapplied having been misread or misunderstood.

And by that I’m not just talking about the chairman going back on his word – but the flawed reasoning from legal.

What the constitution actually says is that the chairman may deem a councillor’s question out of order if the question “discloses Confidential or Exempt information.”

What it seems has managed to confuse the lawyers is their concern that the answer to Cllr. Evans’ question might disclose such information.

This is a clear distinction already noted within the constitution.

Members of the public can also table questions to council meetings, where the chairman’s ability to refuse a question is almost exactly the same as those tabled by councillors – save for one important difference.

For questions submitted by the public, the chairman can refuse it if the question: “discloses Confidential or Exempt information, or the response would be likely to disclose such information.”

That last bit I’ve emphasised doesn’t apply to councillors’ questions because if councillors wish to they can hear the answer in private session, the public obviously can’t.

And that’s exactly what Cllr. Evans pointed out in his submission!

Whilst this might be another howler, its greater significance is surely as a quintessential example of the County Hall outlook towards both information and probing councillors.

Rather than looking for ways to help openly share certain information, even if only among councillors, the move here, and the modus operandi elsewhere at the authority, is to preserve the information monopoly, whatever it takes.


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23 Comments...

  • Flashbang

    Who is the legal department working for and why hasn’t it been comprehensively shaken up considering the amount of wrong advice given out?

    One has to question what the agenda is, and why it is never the taxpayer who comes out in front.

    Who is responsible for the decisions made by legal, does the buck stop with anyone?

  • Christopher Lawton

    I despair, I really do, the antics of the last few weeks from the Chief Executive, Monitoring Officer and Head of Legal are just not acceptable, they are there in my eyes to assist and advise not to bend rules and the constitution so it suits.

    I keep saying the same thing, this cannot be allowed to happen, how can these people possibly have the last word when their understanding of the rules and constitution are questionable?

    You Councillors need to do something to deal with these people once and for all, there is no chance at all of this being a positive council term if all we are going to see is the little wars between Councillors and employees.

    This has to end and quickly!

  • Dai Trump

    I agree totally with Christopher Lawton’s comments.

    What I have never been able to understand is how the council have managed to end up with two monitoring officers in a row whose advice and actions are frequently wrong and/or inappropriate and yet they get away with it and remain in post, who appoints these people?

    Then you have a head of legal services who seems equally immune. The simple fact is that if legal advice is being given it should be correct.

    The fallback position always seems to run to outside solicitors and barristers to clean up the inevitable legal mess they have created.

    This is an unacceptable cost which we as ratepayers are all too frequently suffering, and Councillors are being frustrated at every turn when all they are trying to do is check that things are not only being done properly but also in a timely manner.

  • Karin Clark

    I have had similar experiences while questioning PCC’s involvement with the now scrapped Marina Development in Fishguard.

    Rules were bent and the planning process was beyond belief. So, this is of no surprise to me.

  • Flashbang

    Which councillor is going to lead the way and put forward a NOM to clean out the dead wood to emphasise the taxpayers’ disgust at the goings on at PCC?

    Let’s start with a performance review of all departments and work out which is value for the taxpayer and which is dead weight.

    I think this NOM will also show who is still in the IPPG camp and who is working for the taxpayer.

    Feel free to discuss this with your fellow councillors Jacob and see if pigs really can fly. It’s time the taxpayer had a win.

  • Dave Edwards

    If, as I hope, the “let’s keep the advice secret” vote is lost will we, in the gallery, be able to have an instant download of the pink papers to be able to follow the debate?

    Also, I understand a number of people from St Mary North are coming to hear the debate and as the Leader is answering my public question at agenda item 5, would it be sensible to ask the chairman to amend the agenda to allow the related items 20 and 21 to be heard immediately after item 5?

    As there is a hefty agenda, and the certainty of a lengthy debate on the budget, I imagine that it could be many hours, even after lunch, before they know if they can even stay in the gallery to hear matters affecting their democratic right to be properly represented at council.

  • Keanjo

    This really is the pits – the council is in financial mayhem and considering imposing a punitive 12.5% increase in council tax when many people are struggling with their budget and the members and officers are wasting time and money on whether a Councillor should be thrown out when, whatever decision is reached, will make little or no difference to the people of St Mary North.

    I would much prefer PCC to be tackling the task of improving efficiency and reducing the cost of the services they attempt to provide.

    For a start, what has the so called transformation officer achieved? Has he suggested any feasible ways of increasing efficiency and reducing costs? By this time I would have expected several reports from him.

    Please Leader, it is time for you to get a grip and make some real progress in providing decent services at reasonable cost.

  • Preseli View

    Flashbang. Rest assured the council could work as it does at the moment with a quarter or a third less of the people currently in the Kremlin on the Cleddau.

  • Welshman 23

    The role of head of legal and the monitoring officer are under severe scrutiny. I am sure Mr Westley is in the same arena, after the BPJ fiasco it seems that nothing has changed!

  • Dave Edwards

    In agenda item 20 the reason for excluding the public is to maintain the legal professional privilege of the information if it is to be used in future legal proceedings.

    As any law textbook will tell you this maintenance is in the gift of the client (PCC) not the lawyer or the CEO or the Monitoring Officer.

    Public interest is, of course, always paramount and as nothing can trump the public’s interest as to who represents them it should be a slam dunk in favour of open and full disclosure.

  • Flashbang

    Now that a 12.5% increase has been foisted on taxpayers they deserve a trade off where the unproductive and incompetent staff and departments are swept away.

    This means all spineless councillors taking action and not being led like sheep by the vested interests of those overpaid advisors and staff at County Hall.

    Certain positions spring to mind as grossly incompetent and yet they are still there regime after regime with no-one questioning why they are not doing what they are paid to do.

    If you are going to continue using outside consultants at least get some head cutters in to prune the excess please.

  • John Hudson

    Overlooked, apparently in both the legal advice sought and provided was any consideration as to the purpose of the non attendance time limit provided in legislation.

    Surely this is to protect the representation of the people by those that they elect to represent them in the council’s formal decision-making meetings of full council, committee and sub-committee meetings.

    Sadly this aspect was not considered in the great debate orchestrated by the independent state of Pembrokeshire.

    Nobody is protecting our interests.

  • Keanjo

    It just shows that the intricacies of the law are too difficult for mere mortals to understand and that is why lawyers can demand such large fees to unravel them.

    I trust all the doubtful Thomases will now acknowledge that the Chief Executive and the Monitoring Officer were correct in their interpretation and have the good grace to apologise for any derogatory remarks they posted.

  • John Hudson

    Notwithstanding the legal opinion obtained by the council’s officers, I am still a doubting Thomas.

    The Act would appear to be quite clear about commonly understood statutory meetings and the requirements they have to satisfy. A common sense lay understanding in my view.

    Discretion is provided for authorities to take account of extenuating circumstances that prevent a councillor from attending statutory meetings and representing his/her constituents for six months.

    Our council, under powers delegated to its officers, chose not to determine non attendance exclusion on discretionary extenuating circumstances, but rather on the qualification or definition of other types of meetings.

    Is it too crass to mention money?

    I am sure that the need for these specific external legal advice(s) was not foreseen, and therefore could not have been specifically provided for in the Council’s approved budget.

    Who has delegated powers to authorise this additional unbudgeted expenditure, at a time when officers are under a moratorium for non essential expenditure? No doubt in time we will learn how much this cost us.

    Will this legal difference of opinion have to be settled in court at our expense, or perhaps the WG or Independent Remuneration Panel on Councillor’s remuneration can adjudicate on this matter which affects all councils.

  • Keanjo

    John, MS would confirm that the interpretation of law has nothing to do with common sense.

  • John Hudson

    Keanjo, this law would appear to have been in place for decades with the aim of ensuring constituents are represented in the democratic decision-making bodies of local authorities to an attendance standard.

    I wonder if we can agree that councillors, now that they are paid, are under an obligation to undertake training seminars presumably to ensure they are properly equipped to do the job.

    There are also workshops undertaken under the direction of, and reporting to, statutory committees, which could be and are deemed as an extension of the statutory committee member’s duty.

    That leaves the discretionary “dissemination of information” secret seminars, at which attendance is not obligatory, they are not decision making entities and may or may not be informative to the individual.

    Such meetings, although apparently approved duties for travel expense reimbursement, are not meetings that fulfil statutory meeting requirements.

    It would appear that at the recent budget seminars, soundings were taken of those members that turned up about their feelings towards the budget increase options.

    The result of this was trotted out as “evidence” in the budget report. In my view, this is an unwelcome development and should not carry weight as a relevant consideration.

    At statutory meetings councillors are required to make their decision on the basis of the evidence contained in reports presented to them having regard to all relevant considerations and disregarding irrelevant considerations.

    When I have raised this, I have been told that officers determine what is relevant. I assume on this basis councillors are not required to exercise any judgement, but do as they are told.

  • Quill

    Keanjo, I am not sure what planet you live on but nothing changed before, during or since the council meeting and I doubt it will unless it is determined by the court system.

    So far all we have is a decision on what action to take (none) and not a decision on whether it was legally the correct action, so in no way confirming who was (as you put it) “correct in their interpretation”.

  • Martin Lewis

    I’m surprised, and disappointed, that this rollover by council hasn’t been challenged by the Labour group’s lawyers. No stomach for a fight?

  • Keanjo

    Beam me down Scotty. The Monitoring Officer, a qualified lawyer with 30 years of local government experience was correct in the interpretation of the law as it stands. She probably agrees that it needs to be changed but that is not her job.

  • Dave Edwards

    I am sorry, Keanjo, but just because the MO has thirty years of Local Government experience it doesn’t make her interpretation correct.

    As the situation unfolds it is throwing up more questions than answers.

    Martin, I too wish that the Labour Group Lawyer had been asked to pursue a court action but to expect the “magnificent seven” to fund such a course is unreasonable.

  • Keanjo

    Why not ask the Local Government Association to obtain a legal interpretation and get on with the more serious work of transforming the County Council’s management system, improving services and reducing costs.

  • Quill

    Keanjo, if the Local Government Association did as you say, it would be nothing more than another opinion, not a decision on the right course of action.

    A lawyer (whose record as PCC’s monitoring officer has not been without error) gave dubitable advice to a councillor who followed it.

    That advice was demonstrably treated with great doubt when the gravity of the situation was highlighted.

    We know because extra external advice was expensively obtained to justify why it shouldn’t cost the councillor his seat.

    But shock horror, it offered as much support as a cardboard walking stick.

    A second set was then commissioned which came to conclusions somewhat different to what the monitoring officer had advised the councillor.

    It has not been adjudged right or wrong, only a court case would determine the legal rights or wrongs.

    We now learn that there were other reasons officers were so keen to defend the stance that had been taken.

    I don’t know if your request to focus on something else is meant for me, the council, or Dave Edwards, but the “move along nothing to see here” attitude has so often got this council in the smelly stuff and given it such a bad reputation!

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