May 15 2007

Under fire

Old Grumpy came under fire again (On the carpet) at last week's meeting of full council, when chief executive, Bryn Parry-Jones, appeared to be encouraging the chairman, Cllr Steve Watkins, to report me to the Ombudsman for breaching the Code of Conduct by failing to declare an interest.
Actually, I take very great care to abide by the Code.
Firstly, because I wouldn't want to give my enemies in county hall the pleasure of having me hauled up in front of the standards committee and, secondly, because I wholeheartedly support the Code's aims, which are to build public confidence in local government by demonstrating that members have a duty to act in the public interest and not their own.
This latest spat has its roots in a meeting of the planning delegation sub-committee (PDS) held last December (Bending the rules).
The function of the PDS is to consider requests by members that planning applications in their wards be determined by planning committee rather than officers acting under delegated powers.
The rules for deciding the issue are narrowly drawn and require that there should be public concern about the application and that "The public concern relates to impacts affecting more than immediate neighbours, or the concerns raise issues which highlight conflicting planning policy issues."
Last December, local member, Cllr Lyn Davies, brought a request before the PDS in respect of two applications for agricultural dwellings in the Eglwyswrw area.
As there were no objections to the proposals, you might conclude there were no "public concerns" that could possibly bring the applications within the sub-committee's terms of reference.
However, Cllr Davies was undeterred.
He claimed that six letters had been sent to the council from people who were concerned that the applications were to be determined by officers rather than the planning committee.
Although this had no connection, whatsoever, with the PDS's terms of reference, once the term "concerns" had been insinuated into the discussion, it was all downhill for Cllr Davies and his chums on the committee.
PDS member Cllr David Neale was certainly impressed by this line of argument.
"It is obvious that people in the community want a fair hearing", the Sage of Carew intoned, adding that the number of letters indicated a high degree of public concern.
The applications were duly sent to the planning committee (of which I am not a member), where, despite the clearest possible advice from officers that the activities on the two sites didn't fulfill the requirements for an agricultural consent, they both sailed through with flying colours.
As both decisions were contrary to policy, they had to go to full council for ratification.
I should explain that, because of their quasi-judicial nature, planning decisions are to be distinguished from the ordinary rough and tumble of politics.
The basic rule is that members should not reach conclusions on applications before they have heard all the arguments, for and against, at planning committee.
It follows that any expression of opinion on an application prior to the committee meeting will amount to a prejudgment and could lead to the member being in breach of the Code of Conduct and, in certain circumstances, the council, itself, being found guilty of maladministration.
So, having already made my views on these two applications abundantly clear in this column (Bending the rules), when they came before full council, I declared an interest and withdrew from the meeting.
Prior to the adoption of the new constitution, which accompanied the introduction of the Cabinet system, planning applications were determined by the planning committee if the local member so requested.
It occurred to Old Grumpy that, if the rules could be circumvented by persuading half-a-dozen of your friends to write letters of support, we might as well go back to the former procedure which had the advantage of equity, clarity, and immunity from the sort of politically-motivated chicanery I had witnessed at the PDS meeting detailed above.
So, I put down a Notice of Motion designed to achieve just that.
Naturally, when I stood up to propose my NoM at last Thursday's meeting, I began by stating my reasons for thinking that the present system is unsatisfactory.
That, of course, required me point to the weaknesses of the PDS; highlighted by the events of last December's meeting.
Unfortunately, I was met with a constant stream of interruptions from the chairman, who kept insisting that I should speak to the motion.
When I pointed out that, by giving the background reasons for wanting to make the proposed changes, I was speaking to the motion, up jumped the chief executive, who, having reminded me that I had declared an interest in these two applications at full council, advised me that, if I persisted in discussing them, I would be in breach of the Code of Conduct.
Now, the point is that, when I declared an interest at full council, it was sitting as a planning committee and the issue of prejudgment was relevant.
Last Thursday's meeting was not a planning meeting, so prejudgment didn't come into it.
In any case, the decisions on the particular planning applications have already been made and nothing I might say could alter that fact.
Furthermore, while officers can advise members on matters concerning declarations of interest, it is up to the member to make the final decision.
As I didn't agree with Mr Parry-Jones' interpretation of the Code of Conduct, I continued in the same vein, whereupon the chief executive suggested that the chairman should report me to the Ombudsman.
When a Labour member questioned whether it was appropriate for the chief executive to threaten an elected member with the spectre of the Ombudsman, Mr Parry-Jones hinted that he might report me himself.
The monitoring officer also advised that I was in breach of the Code, so I anticipate hearing from the Ombudsman in due course.
If I could remind the chairman and, indeed, all the other members present of 6(1)(c) of the Code, which states that "Members must report to the Local Commissioner for Local Government in Wales any conduct by another member which they believe involves or is likely to involve a failure to comply with this Code of Conduct."
They now have it on the authority of both the chief executive and the monitoring officer that I was in breach of the Code.
So, if they fail to report me to the Ombudsman, I may feel obliged to report their failure to report me as a breach of 6(1)(c).
If no complaint is forthcoming, it will be difficult to escape the conclusion that this was an attempt to browbeat me into silence.
And, if I am reported, and it turns out that my interpretation of the Code is flawed, I can always ask Cllr Brian Hall for his solicitor's phone number (See 6 Feb 2007).
After all, if he can convince the council's standards committee that to deny Cllr Hall the right to be "obnoxious", even to the point of threatening to arrange for someone's arms and legs to be broken, would be an infringement of free speech, establishing my right to draw attention to what I consider to be a corruption of the democratic process should be child's play (See Freedom to threaten).
PS 9 April 2008. I never did hear from the Ombudsman.

Undue pressure


An interesting case with a local flavour (R (Ware) v Port Talbot CBC) has recently passed through the High Court.
This involved a planning application for a pumping station on the new gas pipeline connecting the LNG facilities in Milford Haven to the national grid.
The Port Talbot planning committee voted 13-12 to approve the development.
However, before that decision was taken, four members of the committee had withdrawn from the meeting after being advised by the council's monitoring officer that their presence at a protest meeting against the pumping station could lead to allegations of bias and a complaint to the Ombudsman.
In the High Court, Mr Justice Collins decided that, as none of the four had expressed an opinion on the development, either at the protest meeting, or elsewhere, they had no interest to declare and, as their presence at the planning meeting may have led to different result, he felt justified in overturning the planning committee's decision.
What is interesting about the case is that nobody disputed the monitoring officer's right, duty even, to offer advice to members regarding compliance with the Code of Conduct.
Where the monitoring officer went wrong, according to Collins J, was in putting pressure on the members by raising the possibility that their failure to withdraw might lead to a complaint to the Ombudsman.

As the judge said: "I have no doubt that the four councillors did feel under pressure not to participate. Where it seems to me that the advice given was clearly wrong, was in raising the spectre of a complaint to the ombudsman. Whether a complaint might be a made or whether judicial review claim might follow cannot be a relevant test. There should not have been reference to the possibility of a complaint to the ombudsman which could only have put some pressure upon the councillors and raised with them, in their minds, as it did, concerns that such a complaint might follow and they might have to deal with it. Of course any such complaint is a matter which any councillor would consider to be a serious matter."

While Mr Justice Collins' judgment provides a timely warning to council officers to be careful about threatening members with the Ombudsman, it creates serious difficulties for monitoring officers.
Complaints to the Ombudsman are of two sorts: members' breaches of the Code of Conduct, and maladministration, which can, in certain circumstances, be founded on a member's failure to abide by the Code.
To bring a complaint of maladministration there needs to someone who, as a direct result of the authority's actions, has suffered a personal injustice.
So, while a member who takes part in a planning committee meeting where his brother's application is determined clearly breaches the Code, whether or not it also amounts to maladministration depends on the particular circumstances of the case.
If, for instance, there are people whose amenity is adversely affected by the proposed development, they can legitimately claim that the member's breach of the Code has caused them an injustice.
If, on the other hand, the development is miles from anywhere, and there is no injured party, then a complaint of maladministration will not stand up.
Incidentally, it is because of this last point that the council's bungalow farmers can hand out dodgy agricultural planning consents with almost total impunity.
Clearly, the monitoring officer has a duty to prevent the council committing acts that amount to maladministration.
So what is he/she to do when, despite the clearest possible advice, a member steadfastly refuses to withdraw from a meeting during, say, a debate on his brother's planning application?
As I understand it, the monitoring officer can only advise, not compel - it is, ultimately, up to the member to decide.
That leaves the monitoring officer in an invidious position because, as far as I am aware, the fact that he/she had advised the member to withdraw would not provide the council with a defence against a maladministration complaint.
It is interesting to speculate what would have happened in the Ware case (above) if the monitoring officer's view: that the four members had an interest to declare, had turned out to be correct.
Suppose further that, despite the monitoring officer's advice, the four members had decided to stay and had voted down the application.
Then, of course, the applicants would have had grounds for seeking judicial review.
A classic no-win situation, if ever there was one.

Volkswagon Polo


I notice that Wikipedia - the on-line encyclopaedia - has recently posted an entry on the Hon Rhodri Philipps - known locally for his involvement with Crownridge Steel at the troubled former RNAD Mine Depot at Blackbridge Milford Haven (Polo mint).
As reported previously, the Hon Rhodri has been having difficulties with the German authorities over the collapse of the construction company Hans Brochier Ltd (Living it up) and (We seek him here . . .).
According to Wikipedia, when Philipps took over struggling Brochier outfit he was hailed as a saviour by the workers.
One employee told a newspaper that Herr Philipps was "A wonderful example of what aristocracy combined with city knowledge can do for the common people".
Now the common people are showing their appreciation of his efforts by refusing to let him leave the country and are even providing him with accommodation at their own expense; not in one of the posh hotels normally frequented by the Hon Rhodri and his polo playing pals, but in a Nuremburg jail.
My contact at the London Evening Standard, who first alerted me to Rhodri's plight, tells me that he is not likely to be released any time soon because the German authorities fear he might abscond.
My contact also tells me that one of his fellow Brochier directors - another Englishman - has been arrested in Spain and extradited to German to face questioning.
Unfortunately for Rhodri, this would seem to suggest that the Germans are taking this all rather seriously, though, looking on the bright side, he will at least have someone like-minded to converse with in his native tongue.
Meanwhile, SF has pointed me to a BBC website which carries a piece about Rhodri's erstwhile polo-playing chum Jack Kidd - brother of the fragrant Jodie.
It is not without irony that Rhodri's team, in which Jack was the star professional, was called the Prodigals.
It seems that Jack is presently having trouble finding a sponsor because, in addition to Rhodri being (temporarily?) out of circulation, another of his rich backers finds himself banged up in a Polish jail on charges of corruption, bribery and money laundering. See
So, if the daughter comes home with a polo player in tow, don't congratulate yourself on her landing a good catch.
Just concentrate on counting the spoons.
If you don't believe me, ask Eddie Setterfield (Polo neck).

Old retainer

Unfortunately, the bantam breeding enterprise is seriously in the red.
To date, not counting my time, it has cost me £10 for the original hatching eggs; £4.50 for a bag of feed from the Co-op in Johnston; and sundry charges for electricity for incubation and brooding.
Not to mention the capital investment in a shed and run.
Now, it seems, the seven eggs my little pullet was sitting on are not going to hatch.
As I said last week, I can't blame the cockerel because, out of the original 11 eggs, seven were fertile.
Responsibility for this fiasco must fall on Fluffy, as my grandchildren have named her, for not sitting tightly enough.
Still, I am the forgiving sort: she will have another chance.
This will be welcome news for Spiky because, while she has been broody, his approaches have been met with the Lysistrata treatment.
I must get him some more hens to occupy his time - I don't think chickens were designed to be monogamous.
Which reminds of the story of the old farmer whose cockerel had gone past his sell by date..
Normally he would put 100 eggs in the incubator and achieve a hatch rate of about 90%.
However, over time, he noticed that this was declining and when it fell below 10% he decided to get a new cockerel.
He threw the new cockerel down in the farmyard, whereupon he crowed loudly to let everyone know that he was the new kid on the block.
The old cockerel, who was severely arthritic in both knees, hobbled over to introduce himself to his usurper.
"Tell me young man", he said, " would you consider allowing me to pass my remaining days with two or three of my favourite hens."
"No chance!" the young cockerel replied, "I've not been brought here to do half a job, or even 95% of a job. You can push off."
By now the hens had gathered round to see what the fuss was about.
"I'll tell you what", said the old cockerel, "I'll race you round the barn - winner takes all."
Not wishing to appear ungallant in front of his new harem, the young cockerel quickly accepted this wager.
The old cockerel pointed to his swollen deformed knees and crooked toes and said: "As you can see, I am no longer in my my prime and I think it would be only fair if you gave me a couple of yards start."
"No problem" said the youngster, "when you get to that large brown feather, I'll start."
The old cockerel hobbled off and when he reached the feather the newcomer set off in hot pursuit.
At this point, the farmer, who had been leaning on the gate observing events from a distance, raised his shotgun and killed the young cockerel stone dead.
Turning to his wife, he said: "It's a funny thing, Mary, but that's the third queer cockerel I've had to shoot this week."

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