Jacob Williams
Sunday 31st March, 2019

Hazard an opinion

Hazard an opinion

Last week’s conclusion of Robert Mueller’s special counsel investigation across the pond caused quite a stir among those who had banked on a different outcome.

To Donald Trump’s detractors the development that the extraordinary probe had found no evidence of criminal collusion or obstruction of justice was a bombshell – they were absolutely convinced the probe would trigger the president’s downfall.

The CNN narrative in particular was that the Mueller effort – the most extensive criminal investigation in the USA since 9/11 – would confirm their wildest dreams: that ‘The Donald’ and his campaign had colluded with the Russian state to secure his election victory.

Trump and his supporters had repeatedly called the Mueller probe a ‘witch hunt,’ a pithy and, among his base, effective characterisation.

It’s at least worth considering one of the points made by some observers, that the starting point for special investigations of this nature is usually a crime, from which they work backwards.

Yet the Mueller probe gave every appearance that it was setting out to discover crime – collusion between the Trump campaign and the Russian state – had been committed.

The attitudes on each side of the political divide, and the nature of the investigation itself, raises many topics of discussion for the rolling news channels, one of which is presumption of innocence.

That this legal concept could be widely misconstrued or not even understood at all shouldn’t really come as a surprise to those who keep a close eye on affairs at Pembrokeshire County Council.

At its meeting before last, county councillors voted to approve my proposal that the authority should publicly release what had, for over a year, been a strictly secret legal opinion that had been obtained in relation to former councillor Dai Boswell.

This legal opinion had been sourced from leading London barrister James Goudie QC (yes, the very same) by the authority’s monitoring officer, Claire Jones.

My prior efforts had given councillors the ability to make an appointment to inspect – across the desk from Ms. Jones, but not to take – a copy of the QC’s legal advice and the instructions Ms. Jones sent him.

I was one of the few councillors who took this opportunity and I was alarmed at what I saw. I was especially surprised at what the QC was asked, and I felt it was in the public interest for taxpayers to see it too.

The correspondence paints a concerning picture of PCC’s senior lawyers’ grasp of elementary legal principles, and as you’ll know if you’ve read it, basic logic.

READ THE DOCUMENTS HERE

To set the scene, at the time this legal advice was sourced in June 2017, senior officers were preventing Dai Boswell – who had been validly elected to the council a month earlier – from taking his seat.

He wasn’t happy about the situation and, as he was one of their councillors, the Conservative party was chasing the matter.

What we now know is that Dai Boswell was being prevented from taking his seat because PCC’s chief executive, Ian Westley, had been tipped off by his police contacts that Boswell had been investigated – nothing more at that stage – over allegations of historic child sex offences.

The Tories to this day deny that they had any knowledge of this aspect – either before they adopted Boswell as their election candidate or when they were trying to help him overcome the standoff with council officers.

No doubt the pressure was building on PCC’s legal team who, we would hope, were aware that a councillor must formally accept his position within two months of his election or the seat falls vacant.

The clock was ticking

During the stalemate PCC’s monitoring officer Claire Jones sourced the legal advice councillors voted to publicly release.

Despite ample opportunities and many months to reveal this to councillors before I got involved, senior officers kept the knowledge of the Boswell standoff and the acquisition of external legal advice a total secret from councillors.

It was only by chance that I discovered it existed, when I closely inspected the legal invoice sent to the council by James Goudie QC’s exclusive London chambers, KBW.

This point is important because for several weeks after the election many questions were being asked as to why only 59 out of 60 councillors had taken their seats.

Chief among those asking questions were Pembroke St. Mary North ward residents who were without representation, despite having elected Boswell their councillor.

Although they may not stress the point very strongly – and it will become obvious why – it’s worth pointing out that the senior council officers involved ‘deny’ that any of them were ‘preventing’ Dai Boswell taking his seat.

I suggest the evidence speaks for itself.

Their version is that he “was asked to delay signing” his official acceptance paperwork, that he “acceded to this request” and that “formal letters” sent to Boswell “make it clear that this is a recommendation only.”

But Boswell didn’t see it that way, and neither did his party – especially when the legal brief sent to London states that Boswell “complied, albeit somewhat reluctantly” to a further fortnight’s delay, and yet another “further postponement” after that.

Short of taking legal action against the roadblock that had been laid down before him, Boswell and the Tories were powerless to get PCC senior figures to do something they clearly didn’t want to.

It should go without saying that the fact that this roadblock frustrated democracy by preventing a validly-elected councillor assuming his seat makes this serious business.

The sort of questions asked of the London barrister give the lie to officers’ denials that they were stopping Boswell.

They asked James Goudie QC: whether senior officers have any ability to stop Boswell signing his paperwork, and if so, how. His curt answer: “No.”

They asked Goudie whether senior officers had a duty to make clear to Boswell that they were powerless to stop him taking his seat, his reply: “Yes.”

They asked if “the Council” could be liable to be sued by Dai Boswell. Mr. Goudie said: “PCC might incur liability if it gave information” to Boswell which led to his failure to sign the necessary paperwork.

These are questions which hardly support the notion that it was all some sort of misunderstanding – which is exactly what the monitoring officer made it out to be in her instructions, by claiming:

“It appears that Mr X is under the impression that the Chief Executive and/or the Monitoring officer is preventing him from signing his declaration/undertaking before the Chief Executive, the “Proper Officer” for these purposes…”

It’s academic because you council-watchers who paid over £2k for this bit of legal advice can now make your own minds up after seeing the answers to these questions, and more, warts and all.

And it was an expensive and humbling lesson for the council’s in-house lawyers.

What on the one hand we mere mortals might consider James Goudie QC’s highlights are, on the other, blatantly obvious statements of fact:

Things like, whilst Boswell “faces allegations of very serious criminal conduct” he has “not yet even been charged,” he is “no more and no less than the subject of ongoing police investigation” let alone “convicted of anything” and is “deemed to be innocent unless and until he is proved and found guilty.”

Goudie continues to point out the obvious – that no measures which could feasibly result in Boswell’s disqualification had in any way been triggered.

He said that Boswell’s election victory was nothing to do with PCC or its officials, “it was an act of the electorate in his electoral division” which was “at least partially disenfranchised” by having no councillor.

Furthermore Goudie said: “Mr X achieving and accepting membership of PCC is not a matter for PCC. Police procedures are not a matter for PCC. Guilt or innocence is ultimately a matter for the courts and is not currently established.”

Clearly, the principle of presumed innocence evaded PCC’s lawyers, but that may not even be the most eye-opening thing revealed in all this.

Almost laughable if it wasn’t so serious, was the Laurel and Hardy-like plan it seems had been cooked up to ensnare Boswell, which the monitoring officer ran past her learned friend for his view.

And it’s just as well she did!

This was the crackpot plot – I kid you not – that Ms. Jones, Mr. Westley, or the council’s leader David Simpson might report Dai Boswell to the local government ethics watchdog, the Public Services Ombudsman for Wales.

This cunning plan, which would have put Baldrick to shame, would have seen Boswell, if charged with any crime, ratted to the ombudsman for breaching the councillors’ code of conduct.

This would have been on the basis that if he was criminally charged it would bring the council into disrepute.

Now there were many obvious and terminal issues with this plot: chief among which was highlighted by the QC in his dismissive reply.

This was the small problem that Dai Boswell was incapable of breaching PCC’s councillors’ code of conduct because he wasn’t a councillor – and they were the very people preventing him signing the paperwork which would have made him one!

Other problems with this scheme were suitably pooh-poohed by Goudie – that even if Boswell had been bound by the code of conduct at that stage, he wasn’t acting in his councillor capacity by being elected, and even if he was, there was simply no case against him to report.

Goudie added that the code of conduct “doesn’t bite” at the stage of signing his official paperwork, which “he is entitled” to do in any case, and:

“Moreover, he is not conducting himself in a manner which could reasonably be regarded as bringing his office or PCC into disrepute by being suspected of criminal offences, however serious. Upon conviction the situation would be very different, but that is not now, and may never be, the position.”

For good measure, adding:

“There must be no predetermination, or surrender, to pressure.”

JW takes this last line to be legal speak for: do what is legal, not what you want.

Ms. Jones’ ‘cunning plan’ is predicated on the notion that the ombudsman might hold a code of conduct complaint against Boswell “in abeyance pending the conclusion of a prosecution,” or what she presented as the off-chance that the ombudsman might conclude that “police charges formed prima facie evidence of a breach of the Code.”

That a lawyer could even countenance the idea that untried criminal charges alone could form “prima facie evidence” of a code of conduct breach seems extraordinary to this layman.

That Ms. Jones also happens to be, as this link shows, a paid legal member of the Adjudication Panel for Wales – the body which considers the most serious code of conduct allegations against councillors she sits in judgement of – is even more surprising.

It seems James Goudie QC was similarly baffled by the proposition, which he dismissed by saying that “the Ombudsman would be open to challenge in the unlikely event that he concluded that police charges formed “prima facie evidence” (if “evidence” at all) of a breach of the Code.”

On the idea that the ombudsman might sit on a code of conduct complaint pending a criminal prosecution, Goudie says that such a referral could not “lawfully be held in abeyance by the Ombudsman” and that if there were grounds for a code of conduct complaint – which there weren’t – it “should be dealt with,” and if Boswell did go on to be convicted in future, only at that point would the “grounds for it [a complaint] have arisen.”

In the event, Goudie’s advice was followed and Boswell was allowed to assume his seat a few weeks before it would have automatically fallen vacant.

It wasn’t until two months later (August 2017) that Boswell would go on to be charged with and, very much later (June 2018) convicted of serious historic child sex offences.

Spirited defence

In the weeks before full council took the final vote on disclosing all of this correspondence, I said at the committee debate stage that there would be some in County Hall who had a vested interest in keeping these documents secret.

The committee also heard that the potential for embarrassment was no good reason to keep them under wraps.

You only need to read the report to councillors to realise the effort put in to making the case for non-disclosure.

Yet I was still not expecting quite what happened at the full council debate.

I’m afraid to say that I wasn’t alone in thinking that the monitoring officer’s input strayed well beyond the bounds of offering impartial legal advice.

The vast majority of her lengthy contribution to the chamber was political in nature – and I wasn’t the only one to say so at the time.

[See the webcast, item 5, from 38:15 point at this link.]

It was a contribution, a speech, that a councillor – an elected politician – had every right to make but which a council officer, a civil servant, should have avoided.

I think Cllr. Mike Evans had it right when he interrupted the monitoring officer on a point of order, claiming that she was “beginning to lose the respect of the chamber.”

It’s reflective of Cllr. Aden Brinn’s poor chairmanship of this debate that he allowed such a politicised contribution to continue, or perhaps more accurately it’s reflective of his ignorance that council officers shouldn’t partake in debate.

As part of her contribution the monitoring officer even made the unprecedented step of inviting a councillor, the leader David Simpson, to address the chamber.

I’ve never seen anything like it.

The suspicion is that she felt he might speak against my proposal, or maintain the line that there was no public interest in the topic so the files should stay in a locked cupboard.

Cllr. Simpson took up Ms. Jones’ request for him to contribute to the debate – in which I’m glad to say he supported disclosing the documents without reservation.

Another political thread the monitoring officer weaved into her speech was the idea that, for any part she may have played in the Boswell roadblock, she was just doing her duty and would make no apology for thinking of child protection.

I don’t doubt that the monitoring officer takes child safeguarding seriously, nor that that’s what guided her or the chief executive to the situation which ended up with Dai Boswell not taking up his seat for over a month.

However there were no grounds to justify what went on, there was every intention to keep it all a secret from councillors and the public, and it’s merely by chance that I found out about it.

The nebulous ‘all’s-well-that-ends-well’ idea, that it was a tricky situation and they did what they did for the common good, was also addressed by James Goudie, who said that, whilst the council has safeguarding and child protection responsibilities, they “do not confer power to require an Elected Member not to sign his acceptance of office and/or not to participate as a Member.”

That this could also have been an effort to get Boswell off the scene for the good of the council’s reputation was also addressed by the QC, saying: “I doubt that PCC’s reputation is an admissible consideration.”

What went on here may be excusable had it been a short-lived error by laypeople with no legal pedigree, but we are talking about lawyers – the monitoring officer, no less, who is tasked with upholding the highest ethics and moral standards at the council.

As one councillor said to me after he had looked through the legal correspondence: “It’s hard to believe that Pembrokeshire taxpayers had to shell out over two thousand pounds for its council’s lawyers to be told that a person is innocent until proven guilty.”


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9 Comments...

  • Flashbang

    The similarities between the president of the most powerful nation on earth (at the time of writing) and a crappy little backwater council are not surprising.

    How far they’ll both go to avoid any blame for their actions and the consequences thereof is profoundly disturbing.

    Both seem to think they are above the law and hopefully both will get their comeuppance at some stage in the future.

    When you have complicity from the people who are supposed to be upholding the law and constitution what hope is there for the public who have to suffer these people’s self indulgence and faults?

    Is it way too much for PCC to start looking after the people of the county instead of covering up the incompetence of its staff and wasting money on the legal department’s inept attempts at interpreting basic law?

  • Dai Trump

    And you thought the last monitoring officer was bad!

    This most basic of legal principles should have been understood by the Chief Executive even if his Monitoring Officer didn’t fully understand the hazard laden path she was leading them both down.

    While the intentions in terms of safeguarding might have been good, the execution was so bad that I would not have expected a first year legal student to fall into this trap if presented with the circumstances in an exam question.

    Clearly PCC needs a monitoring officer with a better understanding not only of the law but what the role entails, not another back room meddler who wastes a lot of time, effort and all too frequently public money trying to dig themselves out of a hole of their own making, either when they get found out or finally realise things could end badly due to the way they have dealt with the matter and the advice they have given, self preservation then becoming the main issue.

  • Pembs. Exile

    In view of the amount of taxpayers’ money being expended by Pembrokeshire County Council on seeking counsel’s advice, has the time come for the council to consider outsourcing all legal advice?

  • Keanjo

    Ian Westley took the wrong action with good intentions. He should have informed David Simpson and left it to the politicians.

    Dai Boswell should have been allowed to make his own decision without obstruction although no doubt the Conservative Party would have made its position clear to him.

    The most serious part of this is the lengths to which the most senior officers go to conceal things.

    The Monitoring Officer especially needs to reexamine the duties and responsibilities of her post.

  • Michael Hart

    I think Dai Trump has got right.

    I agree the Chief Executive’s motives were initially probably well founded. But instead of applying arbitrary justice with a little more thought he could have taken the quiet reasonable steps that Goudie advised.

    It is a pity that no one in the corporate structure seems to have the guts to say, wait, let’s think this through. Instead they embark on a path that leads to protecting reputation becoming the issue rather than how do deal with these serious problems.

    The fact that the proposed new Officer Code of Conduct is currently under review for a very similar failing only shows that they still do not understand the issue.

    Steps taken to protect the public at these pre-conviction stages need a completely separate protocol that does not presume guilt whilst taking appropriate steps to protect the public.

    Guilt or innocence is a matter of our courts not the County Council. The United Kingdom Human Rights Act is very clear. Every one shall be presumed innocent until proved guilty according to law.

    To suggest that the events like the Mik Smith whistle blowing scandal is a thing of the past whilst the corporate centre priority is still trying to evade proper scrutiny of matters is beyond belief. These things will continue to happen until the culture in PCC changes.

    It is typical that the Task and Finish Group were denied access to information when the The Code of Conduct (Qualifying Local Government Employees) (Wales) Order 2001 requires:

    Treatment of Information
    10. Openness in the dissemination of information and decision making should be the norm in relevant authorities. However, certain information may be confidential or sensitive and therefore not appropriate for a wide audience. Where confidentiality is necessary to protect the privacy or other rights of individuals or bodies, information should not be released to anyone other than a member, relevant authority employee or other person who is entitled to receive it, or needs to have access to it for the proper discharge of their functions. Nothing in this Code can be taken as overriding existing statutory or common law obligations to keep certain information confidential, or to divulge certain information.

    But at least the current administration seems far less inclined to accept this kind behaviour than the IPG were.

  • Chas.

    It seems to me, as one of the people who are paying her salary, that the Monitoring Officer’s position should be reviewed, on competence grounds and for stepping well outside her remit in PCC meetings.

  • Pembrokeshire boy across the pond

    Great reporting but I would caution you on drawing too many conclusion from the Mueller report.

    You, and everybody else, are basing conclusions on the memo written by the AG, who is the only person who has read the report. This is like having an independent investigation conducted on a PCC action and then having the monitoring officer writing the press release and withholding the full report.

  • I see where you’re coming from, but it was deliberately carefully written!

    I said “criminal collusion” which was the threshold. Also we have a little more to go on than just the memo of the report – including the fact that no indictments were recommended by Mueller.

    The point was, in their rush to judgment many were dead certain it would be a slam dunk – but that’s not how it turned out, however much they’d like to spin it.

  • Michael Hart

    Well done Jacob for your work with the Mik Smith inquiry. It shows that many members care about the conduct of this council and those they represent.

    Listening to Cabinet discuss the Mik Smith report it struck me that the Leader and other cabinet members offered an apology and meant it. However the Chief Executive did not offer any apology to the whistleblower. The only comment from the CEO was he had read the report and would look at formulating an action plan. This in an organisation that professes safeguarding remains a priority.

    This report was completed in February – some priority.

    As a further measure of how much a priority safeguarding is you only need to look at the the joint task and finish group recommendation on whistleblowing which was approved by scrutiny committee and accepted by council 16th July 2016.

    R3: To improve employee awareness: a) an e-learning training package to be developed and made compulsory for all employees; A move subsequently supported by the WAO who praised the quality of the package.

    The very good Chair of the Audit Committee in October 2018 had concerns about the number who had taken the this training. He was promised an answer (HR claimed they did not know) because he was worried that it might be a large swathe of staff and not just a few on the margins. I can only assume someone has not told him the bad news.

    An FOI, 9050, of 29th Nov 2018 shows:

    PCC (corporate (2,692) and schools (2,472)) has 5,059 employees altogether of which 2,920 are part time. ONLY 472 of the five thousand had taken the compulsory e-learning module.

    There are a large number of members, officers and school staff who take safeguarding very very seriously however they are being let down by this lack of urgency.

    It is a simple job to send an email to every manager saying we must do better than this, please remind our staff to complete the mandatory training. But alas they are consumed by protecting reputation and concealing matters to make it a priority.

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