October 2 2007
Old Grumpy has now received a copy of the Adjudication Panel for Wales' written decision on the Ombudsman's finding that Cllr John Allen-Mirehouse breached the members' Code of Conduct by failing to declare an interest when the controversial "Homes for locals" policy was debated at two National Park meetings in early in 2002.
As reported previously, the APW found that the Ombudsman was talking through his hat.
In terms of legal procedure this was an interesting case because it highlighted the peculiar situation here in Wales where the Ombudman's barrister was not allowed to cross examine witnesses or play any other part in the proceedings.
As the written judgement says: "Following representations [by Robin Tolson QC] on behalf of Cllr Allen-Mirehouse concerning the Case Tribunal Regulations and in particular Regulation 9 of the Adjudications by Case Tribunals and Interim Case Tribunals (Wales) Regulations 2001, the Case Tribunal ruled that the Ombudsman (through his representative) could not participate in the proceedings.
That, in effect, allowed the defence to tell whatever story it fancied without fear of contradiction.
A situation described by the Ombudsman's counsel Mr Gwydion Hughes as "iniquitous".
And Cllr Allen-Mirehouse's QC took full advantage.
For instance, the written judgement records that "Mr Tolson said that it had never been disputed that Cllr Allen-Mirehouse owned land that was capable of being developed when he participated in the relevant meetings of the National Park Authority."
Now, I might have missed a couple of tricks, but that is not the impression I got during the lengthy process leading up to the Case Tribunal hearing.
In September 2004, I received a letter from the Ombudsman informing me that the investigation was being discontinued because the police - to whom the Ombudsman had referred the case because failure to declare a pecuniary interest is a criminal offence - had concluded that "there is insufficient evidence to pursue a criminal investigation."
Later in that letter, the Ombudsman said: "He [Cllr Allen-Mirehouse] has stated [to the police, presumably] that he has not applied for permission to develop any land and there is no evidence [that the police had managed to uncover, presumably] that he has any land which would be affected by the adoption of the policy on development within the National Park."
After receiving that letter, I paid a visit to the National Park offices where I turned up documentary evidence that Cllr Allen-Mirehouse's agents were actively seeking to have land which he owned included within Angle village limits.
This evidence was forwarded to the Ombudsman who reopened the case.
According to the Ombudsman's subsequent report, which concluded that Cllr Allen-Mirehouse had breached five sections of the Code of Conduct: "Cllr Allen-Mirehouse told the police that had he had land designated for development under the emerging plans he would have felt compelled to declare an interest, but that had not been the case. He also said that he never intended to develop any land and had not applied for permission to do so."
As for his claim that he never intended to develop any land the Ombudsman reported: ". . . he certainly owned at least one parcel of land (Whitehall) which he considered suitable for development and had already, in June 2001 [more than six months before the National Park meeting in question], produced plans for this land and had sought to get it identified as development land in the emerging JUDP"
And it is difficult to reconcile Mr Tolson's claim that "it had never been disputed that Cllr Allen-Mirehouse owned land that was capable of being developed" with paragraph 18 of the Ombudsman's report which states: "Cllr Allen-Mirehouse says that as at February 2002 he had no developable land 'within the village' which did not have planning permission and that he had not applied for planning permission to develop any land".
Had the Ombudsman's barrister not been barred from taking part, he might have drawn attention to these inconsistencies.
Not that the Case Tribunal needed either the Ombudsman's report, or his letter to me, to realise that that Mr Tolson's claim was, to say the least, contentious.
On 7 March 2007, the tribunal held a pre-hearing review at which Cllr Allen-Mirehouse and his legal representative and lawyers for the Ombudsman were present.
According to the Case Tribunal's written judgement the purpose of this review was "to try to narrow down the issues upon which the Case Tribunal would have to take evidence and make findings of fact."
At the end of these deliberations the Tribunal "identified two relevant key disputed [emphasis added] facts on which it would need to find:
a. Did Cllr Allen-Mirehouse own any land that was capable of being developed when he participated in the relevant meetings of the Pembrokeshire Coast National Park Committee?
b. What was the likely impact of the introduction of policy 47 on land values in the Pembrokeshire Coast National Park?"
And who was disputing these facts if not Cllr Allen-Mirehouse?
Certainly not the Ombudsman whose findings were based on the twin premises that Cllr Allen-Mirehouse owned developable land and that policy 47 would reduce the value of such land.
Of course, once the Ombudsman barrister was let loose, after Cllr Allen-Mirehouse made an application for costs, we heard a rather different version of events than that presented by his QC (Two sides to every story).
The minutes of standards committees of November 2006 and April 2007, which cleared Cllr Brian Hall of bringing the office of councillor into disrepute when he made threats against a BBC journalist at a reception in St Davids, have now been published.
A copy should be available at a library near you.
At the November meeting, the Chairman advised that "The Ombudsman was only present to present his report and explain any points of clarification only."
However, the Ombudsman was given rather more leeway than at the Case Tribunal and suggested that, if Cllr Hall's defence included the claim that he attended the BBC reception as a private individual "then it was relevant for the committee to enquire whether expenses had been claimed for attending the function."
At that point Cllr Hall and his legal team retired for a conflab and when they returned they confirmed certain facts to the committee including "Cllr Hall had not been asked by the county council to attend."
"With regard to the claiming of expenses, no information could be provided."
Fortunately, Old Grumpy was able to help and in due course a copy of Cllr Hall's expense claim found its way to the standards committee(Memory lapse).
The November meeting was adjourned and when it reconvened in April 2007 the chairman referred to the document and ruled that the committees procedures allowed this additional information to be considered.
Cllr Hall's solicitor, Mr Child, objected on the grounds that, to admit the claim form as evidence would breach Cllr Hall's right to a fair trial under Article 6 of the Human Rights Act and, in any case, it was not conclusive evidence as to whether an official duty was being performed and was therefore not relevant.
The committee stuck to its guns on the grounds that the expense claim was "prima facie evidence of Cllr Hall's belief that he was attending the function as part of his official duties".
That led the committee to make a supplementary finding of fact that: "Cllr Hall claimed expenses for travelling to the function at St Davids organised by the BBC on 14 January 2005 and signed a declaration that the reimbursement claimed had been incurred for the purposes of performing the approved duty shown as a Member of Pembrokeshire County Council and not in any other capacity."
However, Mr Child argued, successfully as it turned out, that Cllr Hall was attending the reception as a guest of the BBC "and there was no evidence before the committee either that he was conducting council business, undertaking the role of member or that the council or anyone authorised to act on its behalf, had appointed Cllr Hall to act as its representative for the purpose of attending the invitation only reception. Therefore it could not be found that Cllr Hall was discharging his function in an official capacity or undertaking his function as councillor from being at the event."
While it is true there was no evidence before the committee, and that the committee could only reach its decision on the basis of the evidence before it, that doesn't mean that the evidence didn't exist.
In addition to attendance at council meetings and such like, an "approved duty" is defined by the council as "Attendance by the Leader of council and other group Leaders (or their nominated representative(s)) at such meetings approved by the Chief Executive for the proper discharge of the business of the authority."
I put down two questions at the council meeting on 1 March 2007:
1. Did the Leader nominate Cllr Hall to be his representative at the BBC reception in St Davids in January 2005? And, did the Chief Executive certify that Cllr Hall's attendance at the BBC reception was 'for the proper discharge of the council's functions?
The answer to both was yes.
And when SF wrote to the District Auditor suggesting that if, as the standards committee had found, Cllr Hall was in St Davids in his private capacity, he had claimed travelling expenses to which he was not entitled, he was told "The Chief Executive has confirmed that Cllr Hall was attending an approved duty in St Davids and he was therefore entitled to claim travel & subsistence expenses."
Presumably both the Leader, Cllr John Davies, and the Chief Executive were unaware that Cllr Hall's status at the BBC function had been raised as an issue at the November 2006 standards committee, otherwise they might have felt honour bound to inform the committee of the true facts.
And, had Ombudsman been allowed more than a walk-on part, he might have made enquiries of the council in order to ascertain Cllr Hall's precise role at the St Davids' function.
As it was the standards committee reached its decision on rather a pale version of the truth.
And, without truth, there can be no justice.
The upshot is that we now have a situation where Cllr Hall can be treated as acting in his private capacity for the purposes of the standards committee and in an official capacity for the purposes of claiming expenses.
Regular readers will be aware of his talent for being in two places at the same time (The Time Lord) now he seems to have added the ability to be two persons, simultaneously.
I read in the Daily Telegraph that the government, including local councils, is to be given the right to access our telephone logs.
This will allow them to discover who we spoke to and for how long.
A few months ago, my Freedom of Information request for the expense claims of the county council's chief executive and the, then, director of development Roger Barrett-Evans was refused on the grounds that this was "personal information".
This decision is now the subject of an appeal to the Information Commissioner.
Surely, if how senior council officers spend public money is personal information, who we choose to speak to on the phone is even more so.
Even Homer nodded
I fear I may have done the county council an injustice in last week's column (Literal translation).
It appears I was mistaken when I asked for the contract between the council and Pem Developments in respect of Withybush motor retail park, and the council was right when it said no such contract existed.
Pem Developments, an Irish company based in Clonmel, actually own the land on which the motor retail park is to be built.
The contract I had in mind is for the development of Withybush Business Park.