August 16 2005


Foregone conclusion

You may have read in the Mercury that I was unsuccessful in my attempt to become one of the two county councillor, non-executive directors on the board of Milford Haven Port Authority.
For obvious reasons, it would not be appropriate for me to comment on the relative merits of the two candidates for the post - Cllr Arwyn Williams and myself.
However, I feel fully entitled to make my views known about the process by which the appointment was made.
To counter charges of self-interest, I would point out that I have have written extensively on this subject on previous occasions, when I was not a candidate.
To understand what goes on with these appointments, you have to go back to 2000 when former council leader Eric Harries' term of office expired.
The previous year, Mr Harries was thrown out by the electors of Hubberston, but, though there were other candidates who had actually been elected, most notably Cllr Terry Mills (Lab), that didn't prevent the county council from wangling him back on to the board as its representative,
In 2003, when Mr Harries' second term expired, the council/MHPA decided it couldn't pull that trick again, so he was shuffled off to the board of the Milford Docks Company, where he remains to this day.
One of the applicants for the resulting vacancy on the MHPA board was the then Cllr Tom Sinclair.
Tom Sinclair is a tug master on the Haven, and, with his specialist knowledge of navigational matters, would seem to be an ideal candidate for such a position.
The first maneouvre was to write to Mr Sinclair informing him that he was disqualified from board membership because his employment on the Haven gave rise to a conflict of interest.
So he wrote to the Department of Transport, which ultimately approves these board appointments, pointing out that, as the MHPA sets the fees paid by tankers entering the Haven, the two refinery managers on the board were similarly tainted.
Ultimately, he was given an interview, though it came as no surprise to anyone that Cllr Brian Howell, a former policeman from Fishguard, was preferred.
The common thread that unites these appointments is that all the successful candidates are, or were, members of the Independent Political (sic) Group (IPG).
So, it was with little anticipation of success that I delivered my application form to the Port Authority's offices.
Indeed the reason I applied was not because I expected to be appointed, but to gain some insight into the process itself.
In addition, I had heard, by way of members' tea room gossip, that the IPG had decided to field a single candidate and I couldn't see why whoever that was should have a free run.
I was told, initially, that the interview panel would consist of the Board Chairman, Bob Clarke; an independent human resources consultant; and a representative of Pembrokeshire County Council and, later, that the county council representative would be the Leader Cllr John Davies or, if he was unavailable his deputy Cllr John Allen-Mirehouse.
When I arrived for the interview I was surprised to find that the independent consultant had failed to turn up.
Even more surprising, was to find Cllr Davies sitting there.
Regular readers will be aware that there is some recent history concerning my relationship with Cllr Davies over the granting of an agricultural planning consent to his company Cwmbetws Ltd.
He has been quoted in the local press as accusing me of "mischief making" and "seeking to make political capital" out of this affair.
Indeed, on the day before the interview, I had put a notice of motion before the council calling for that planning consent to be revoked (Herd instict).
During the debate on my notice of motion - Cllr Davies had declared an interest and left - his deputy, Cllr John Allen-Mirehouse, accused me of conducting "a personal vendetta" against the Leader.
With all that going on, how could Cllr Davies possibly think that he was in a position to interview me for this post.
Furthermore, how could the process possibly be seen to be fair when the other applicant, in addition to being a member of Cllr Davies' party, was also that party's chosen candidate?
Presumably, Cllr Davies, as party leader, had some part to play in his selection.
Hasn't he heard of the Rules of Natural Justice?
We all know how a few too many glasses of merlot can affect our judgment; it would seem that being drunk on power has similar effects



The upshot of the above is that, in terms of patronage (and power), membership of the MPHA board has become yet another string in the leader's bow.
Already, without reference to anyone else, he directly appoints nine cabinet members, four deputy cabinet members, six county council representatives to the National Park Committee and two each to the Police Authority and Fire Authority, all of which entitle their holders to monetary allowances of one sort or another.
If the county council's two MHPA board memberships are included, that makes 23 in all.
In addition, he indirectly controls the Chairmanships and vice-chairmanships of the Council, scrutiny committees, and regulatory committees (planning and licensing) - another 14 special responsibility allowances (see No contest).
And on top of that he has at his disposal upwards of a dozen unpaid positions which give their holders the right to travel the length and breadth of the UK at a highly profitable 50p per mile.
Such powers of personal patronage have no place in a democracy, even if the Archangel Gabriel were leader.
But at least it explains how, in the absence of any ideological glue, the Independent Political (sic) Group manages to present such a united front to the world.

Parliament and judges

I was heartened to read a letter in last Thursday's Daily Telegraph which seemed to endorse what I wrote last week about the relationship between the will of Parliament and the judges (see Penny and the bun).
What was particularly encouraging, for an untrained lawyer like myself, was that the writer was the former Master of the Rolls, Lord Donaldson, who is about as highly trained a lawyer as it is possible to find.
Lord Donaldson wrote: "Parliament communicates its will to the judges and the public in the form of Acts of Parliament. He [Michael Howard] and I are in agreement that it is the duty of judges to interpret these Acts and apply them."
In respect of the controversy over the the detention without trial of Belmarsh prisoners, which the Law Lords found to be incompatible with the Human Rights Act, Lord Donaldson wrote: "Unfortunately, Parliament has not left the judges free. By the Human Rights Act 1998, it has not only authorised but required [his emphasis] the judges to form and express a view on whether any other Act is incompatible with this Act."
He concludes: "Thus it is Parliament itself that has plunged the judges into the political arena and only Parliament can extricate them."
One way that the judges might be extricated would be to repeal or significantly modify the Human Rights Act though what effect that might have on marital relations in No 10 is anyone's guess.
As Lord Donaldson points out, anti-terrorism laws are almost bound to come into conflict with the Human Rights Act and it is for Parliament to resolve that conflict, not the judges.
The problem with the Human Rights Act is that some rights e.g the right not to be tortured are expressed in absolute terms and signatories to the convention are not allowed to derogate from them.
However, there must be some hierarchy of rights, which puts some further up the scale than others.
As the Government would argue, and who would disagree, the most fundamental human right, on which all other rights depend, is the right to life.
So, what happens if a terrorist gang plants a nuclear device at a secret location in the centre of London timed to go off in two hours? - too short a time scale to allow anything but a partial evacuation.
The security services apprehend one of the gang.
Are they entitled to torture him/her in an attempt to discover where the bomb is hidden, or do they risk the lives of countless thousands of innocent civilians because of their distaste for such methods?
That is an extreme case, but it is the sort of dilemma that human rights legislation tends to throw up.

Letter of the law


A well known example of the principle that judges should have regard to the words of the statute and not the presumed intentions of Parliament is to be found in the case R v Greenburg.
Section 1 of the Theft Act 1968 provides: "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and "thief" and "steal" shall be construed accordingly."
As my battered old criminal law textbook puts it: "Defendant [Greenburg] was charged with the theft of nine gallons of petrol from a self-service filling station. The prosecution case was that he filled his tank and entered the cashier's office with a note [money] in his hand, but left without paying while the cashier was dealing with an earlier customer.
The judge instructed the jury that there was no case to answer because there was no evidence of dishonest appropriation because at a self-service station the petrol is put in the tank and the customer assumes the rights of owner by consent. A civil debt arises but no crime is committed unless it can be shown that the defendant never intended to pay. Here there was prima facie evidence of an intention to pay."

The judge was not suggesting that it was Parliament's intention to sanction such conduct, merely that the statute, as written, did not criminalise Mr Greenburg's actions.
To extricate the judges from this difficulty, Parliament passed a further Theft Act which included the new offence of "making off without paying."

Vintage gravy

I think I might be getting the hang of this politics business, at last.
The trick, I think, is to cultivate the ability to tell lies while speaking the truth.
For instance, on a recent visit to the doctor, I was asked how much I drank.
"My wife and I share a bottle of red wine most evenings." I replied, hoping he would be too polite to enquire too closely into the meaning of "share".
He was, and probably calculated: six glasses of wine in a bottle, divide by two, multiply by seven = 21 units per week, before writing: "drinks only in moderation" on my records.
Last Saturday, to celebrate our dominance over the Aussies, I splashed out on a rather more expensive bottle than usual.
It actually cost £4.49, but that was with £3.50 off, so, as the mathematicians among you will have worked out, its original cost was a penny short of eight quid.
This I can tell you is way, way outside my normal price range.
When I came in from the garden to have dinner, I found the bottle already open on the table and thought to myself "how thoughtful of Old Grumpette".
However, when I came to pour myself a glass, I noticed that the bottle was almost horizontal before anything came out.
On making enquiries, I discovered that we were having braised beef and the recipe called for two glasses of red wine and a couple of dozen shallots (from the garden, of course).
When we sat down to eat, Old Grumpette shoved her glass over to me and said: "Pour me a glass of wine."
"Help yourself to some more gravy", I replied.

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