Behind the veil

There has been a fair bit of adverse comment in the local press (and elsewhere) regarding the Economic Development Scrutiny Committee’s decision to retreat behind closed doors to debate the old school site in Narberth.

Despite the secrecy, the press seem to have obtained information about the sums of money involved, though whether they are accurate is something upon which I couldn’t possibly comment.

It has come to my notice in the past that I am a prime suspect where these leaks are concerned – possibly because of my past connections with the newspaper business where the contents of the plain brown envelopes that used to appear overnight on the Mercury’s doormat were my stock in trade.

All I can say to these accusations is: not me Guv.

If ever I do feel the need to publish exempt information (its proper title) it will be on this website and then only when I judge that I have reasonable prospects of running a successful “public interest” defence at any subsequent standards committee hearing.

But to return to Monday’s meeting – a video of which can be seen here.

The first thing that needs to be said is that the exclusion of the public from meetings of “principal authorities” e.g. PCC, is a matter of law.

Section 100A of the Local Government Act 1972 provides:

Admission to meetings of principal councils.

(1) A meeting of a principal council shall be open to the public except to the extent that they are excluded (whether during the whole or part of the proceedings) under subsection (2) below or by resolution under subsection (4) below.

Subsection (2) refers to information provided by a government department under conditions of confidentiality when the public must be excluded.

Subsection (4) provides:

A principal council may [my emphasis] by resolution exclude the public from a meeting during an item of business whenever it is likely, in view of the nature of the business to be transacted or the nature of the proceedings, that if members of the public were present during that item there would be disclosure to them of exempt information, as defined in section 100I below.

S100I merely directs you to Schedule 12A where the categories of exempt information are listed.

In Wales these are:

12. Information relating to a particular individual.

13. Information which is likely to reveal the identity of an individual.

14. Information relating to the financial or business affairs of any particular person (including the authority holding that information).

15. Information relating to any consultations or negotiations, or contemplated consultations or negotiations, in connection with any labour relations matter arising between the authority or a Minister of the Crown and employees of, or office holders under, the authority.

16. Information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

17. Information which reveals that the authority proposes —

(a) to give under any enactment a notice under or by virtue of which requirements are imposed on a person; or

(b) to make an order or direction under any enactment.

18. Information relating to any action taken or to be taken in connection with the prevention, investigation or prosecution of crime.

The reason the numbering starts at 12 is that the categories in England are slightly different and are numbered 1-11.

The “may” in subsection (4) means members have always had the discretion to meet in public session when exempt information was to be discussed.

Not that you’d notice because such is the ruling IPPG group’s love of secrecy that they invariably vote to keep the public in the dark.

In 2007, in an attempt to open up the system, the Welsh Government enacted The Local Government (Access to Information)(Variation) (Wales) Order which gave elected members, and the public, additional rights to information.

Traditionally elected members had a Common Law right to information required to carry out their duties and, in addition, information relating to the business of any committee on which they served.

The 2007 legislation extended these rights so that, regardless of committee membership, all councillors now have the right to access information in categories 14 and 17 above.

It was this legislation that enabled me to win my battle with the former Monitoring Officer over my right to inspect documents relating to the Pembroke Dock grant scheme which came under paragraph 14 of Schedule 12A.

Though I can’t rule out the possibility that having his attention drawn to Section 100H (4) played a part in bringing him round to my way of thinking:

(4) If, without reasonable excuse, a person having the custody of a document which is required by section 100B(1) [F2, 100C(1) or 100EA(2)] above to be open to inspection by the public

(a) intentionally obstructs any person exercising a right conferred by this Part to inspect, or to make a copy of or extracts from, the document, or

(b) refuses to furnish copies to any person entitled to obtain them under any provision of this Part,

he shall be liable on summary conviction to a fine not exceeding level 1 on the standard scale.

The 2007 legislation also encouraged openness by introducing a public interest test which, in effect, provided that just because information fitted the description in Schedule 12A didn’t necessarily mean it was exempt information.

Henceforth information could only be classified as exempt “…if and so long, as in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.”

The Welsh Government might as well have saved its breath because, in the intervening nine years, there has not been a single occasion when PCC officers have concluded that the public interest was best served by disclosure.

And last Monday was no exception.

My own take on this is that Parliament has given the people I represent the general right to attend council meetings and they should only be excluded if there is some compelling reason.

In short, there is a presumption to openness.

After all, it is surely one of the main functions of an elected representative to defend the legal rights of those they represent.

Unfortunately, members of the IPPG, in particular, take a different view.

This attitude has two sources: first they are so in awe of the officers that they feel compelled to follow their advice and, second, discussing things in secret boosts their already over-developed sense of self-importance.

Cllr John Nutting made the point that, as press reports had already placed the information in the public domain, there was little point in going into private session (The Spycatcher doctrine).

However, by some perverse process of logic, chairman Michael John, who was clearly hell-bent on excluding the public, claimed that the fact that someone had leaked the information to the press had the exact opposite effect to that proposed by the Law Lords in the Spycatcher case.

But that is not unexpected when you have a situation where the Leader has the power to appoint the chairman (SRA £9,000) of a committee charged with scrutinising the activities of the Leader and his Cabinet.

During the closed session, which as a councillor I was allowed to witness, almost every member expressed reservations about the proposed deal.

Strangely, when it came to the vote the IPPG members all toed the party line.

They may have been influenced by the officer’s report before them which contained the recommendation:

That the decisions taken by Cabinet on 4 July 2016 be confirmed and that a recommendation to this effect is made to Cabinet in early September 2016.

In other words the cabinet having rubber-stamped the officers’ recommendation on July 4 the same officers were now asking the scrutiny committee to rubber-stamp the rubber-stamping exercise.

This smacks of marking your own homework.

My own view would be that, in these circumstances, officers have no business trying to steer members in any particular direction.

Unfortunately, the Code of Conduct restricts what can be reported on the debate behind closed doors.

However, without revealing any commercially sensitive information, I can say that Cllr Jacob Williams made the perfectly reasonable point that, as the structure of the deal was being varied in the developer’s favour, the best way to proceed was to re-market the site.

The part played by Cabinet member Keith Lewis was also a cause for concern.

My understanding was that the Cabinet member was there to answer members’ questions, though Cllr Lewis was allowed to play a full part in the debate.

His response to Cllr Williams’ proposal was that “this developer has invested a lot of time and money in this project”.

This may well be true, but it is not the council’s job to use taxpayers’ money to shelter property developers from the risks inherent in their trade.

Another bad day for democracy, I’m afraid.