September 25 2007

 

Toothless watchdog

A reader has e-mailed in response to last week's piece on the length of time it is taking the Adjudication Panel for Wales to provide a written judgement to support its decision to overturn the Ombudsman's findings that Cllr John Allen-Mirehouse had breached the Code of Conduct by failing to declare an interest during a National Park Authority debate on the "Homes for locals policy" (Waiting for judgement).
Having visited the Adjudication Panel's website ( http://www.adjudicationpanelwales.org.uk/) my correspondent says that a time lag of more than ten weeks, and counting, between the hearing and the posting of the written judgement is not typical.
He observes that, in the last five cases for which dates are available, the time lapses have been one week, seven weeks, two weeks, seven weeks and three weeks.
Ah! the value of empirical research.
On reading some of these cases, Old Grumpy was struck by the number of times the Panel has overruled the Ombudsman - five out of the last seven.
From that you might conclude that the Ombudsman is a bit of a duffer but that would be unfair because he operates under some rather serious handicaps.
Firstly, there is the judgement in the Livingstone case where Collins J put a very narrow definition on the words "in their official capacity or otherwise" when cases involving bringing the office of councillor into disrepute were concerned.
According to Mr Justice Collins, even a conviction on a serious criminal matter wouldn't support a finding of a breach of the Code if it the offence was committed while the councillor was acting in a private capacity.
And, secondly, the procedure at Adjudication Panel hearings in Wales, where the Ombudsman or his legal representative is allowed to present his report but not cross-examine witnesses or play any other part in the proceedings puts the Ombudsman at a huge disadvantage (see Whitehall farce and Two sides to every story).
These factors combine to make the Ombudsman something of a toothless watchdog where the Code of Conduct is concerned.
And, in the light of the Livinstone/Hall decisions, one of the cases where the Panel upheld the Ombudsman's findings was probably wrongly decided, at least in part.
This involved Cllr Paul Baccara of Rhondda Cynon Taf CBC who was suspended for two months for, among other things, bringing the office of councillor into disrepute by being convicted of drink driving.
As Cllr Baccara was acting in his private capacity and not in the role of councillor at the time of the breathalizer offence, this should have been disregarded.
In any case, the distinction between private and official seems to be somewhat blurred because in the case of Cllr Brian Hall the Standards Committee decided that he attended the BBC function in St Davids in his private capacity even though he was there as the Leader's representative and claimed travelling expenses which were certified by the Chief Executive as being in connection with the "the proper discharge of the authority's functions" (It's official).


Mind your tongue

 

One particularly interesting case reported on the Panel's website involves Cllr Brian Thomas of Blaenau Gwent who was suspended for three months for breaching Paragraph 4(a) of the Code of Conduct which states that ‘Members must carry out their duties and responsibilities with due regard to the need to promote equality of opportunity for all people……….and show respect and consideration for others.’
Cllr Thomas' offence occurred at a planning committee site visit regarding an application that officers were recommending for approval, but which he opposed on road safety grounds.
During the discussion Cllr Thomas was heard to remark: "If this was in Abertillary it would be refused".
The planning officer present regarded this as an attack on his professional integrity and took the matter to the Ombudsman who upheld his complaint.
In vain did Cllr Thomas protest his right to free speech and the Panel found that "in his careless and/or reckless statement made at the Planning Sub-Committee meeting on the 28 June 2005, Councillor Thomas failed to show respect for the professional integrity of Mr Steve Smith, a Planning Officer with the council."
Reading that you might conclude that council officers have an automatic right to have their professional integrity respected.
That can't be right because there must be a defence of justification.
Presumably, had Cllr Thomas been able to point to similar applications in Abertillary that had been refused, he would have been in the clear.
What is worrying about this decision is that it appears to turn the previous law on its head.
Because it is considered that it is in the public interest that our elected representatives should be free to speak their minds, Members of Parliament have absolute privilege i.e they can say anything they please, for whatever motive, during sittings of the House, without having to fear being sued for defamation.
This privilege is qualified in the case of councillors insofar as the defence fails if it can be shown that they were motivated by malice.
Otherwise, as the House of Lords held in the famous case of Horrocks v Lowe: "However prejudiced the defendant has been, or however irrational in leaping to conclusions unfavourable to the plaintiff, if he honestly believed in the truth of what he said, the defence of qualified privilege succeeds".
On the other hand, the requirement to show respect only applies when a member is acting or purporting to act in his/her official capacity.
So the strange situation arises that, if I write something defamatory about a council officer in this column when I am off duty, I can be sued for libel, but not be found guilty of a breach of the Code.
But, if I repeat my remarks in the council chamber, I am protected from an action for defamation by qualified privilege, while at the same time laying myself open to suspension by the standards committee.
That seems to be a serious erosion of the right to free speech.



Literal translation

 

During the recent public audit inspection I requested a copy of the contract between Pem Developments and Pembrokeshire County Council in respect of the motor retail park at Withybush.
I know such an agreement exists because it is recorded in the Cabinet minutes for October 2006.
I also believe that, by virtue of Section 15 of the Audit Commission Act 1998 :
"15. Inspection of documents and questions at audit
(1) At each audit under this Act, other than an audit of accounts of a health service body, any persons interested may—
(a) inspect the accounts to be audited and all books, deeds, contracts, bills, vouchers and receipts relating to them, and
(b) make copies of all or any part of the accounts and those other documents."
I, or any other "persons interested", are allowed to see it.
In reply the council informs me that there is no agreement between Pembrokeshire Developments and Pembrokeshire County Council.
What I think has happened here is that the officer in charge of the inspection has taken Pem Developments in my handwritten request as an abbreviation of Pembrokeshire Developments and passed it on to head office suitably, but erroneously, amended.
I suppose that is an easy mistake to make but as I specifically mentioned the Withybush motor retail park the accounts department must have known what I meant.
And this is not the first time that the council has hidden behind pedantry in order to deny me access to documents (See Rent).

 

. . . but not forgotten

 

I occasionally get e-mails from readers enquiring about Cllr Brian Hall's former business partner Dr Michael Ryan (Hall-Ryan. The full story).
Well, although it is some time since the good doctor made an appearance on my website, he has not entirely passed from my radar screen and during the recent public audit inspection I took the opportunity to have a look at his expense claims.
One thing that I noticed was that there were no invoices to support three of his many claims for hotel expenses.
As this amounted to the not inconsiderable sum of £850, I requested the documentation.
The council replied: "These accommodation charges were paid by personal credit card. The receipt was submitted to support the claim. The hotel did not issue a statement. This is now always requested."
Are we expected to believe that Dr Ryan settled his hotel account without first being presented with a bill?
I have now asked for copies of the credit card slips.
At least that will tell me the name of the hotel.

Healthy income

 

A look at the local health trust's annual accounts would seem to indicate that Mr Bryn Parry-Jones' status as the county's highest paid public servant (Nice little earner) came under threat during 2006-2007 .
The accounts reveal that the salary of Mr Keith Thomson, who some of you may remember as cheerleader-in-chief for the deeply unpopular plans to downgrade Withybush hospital, was somewhere between £120,000-125,000.
That, of course, is well below the £150,000 the county council's chief executive is reputed to earn but not when you consider that Mr Thompson only held the post for the nine months 1 April 2006 - 31 December 2006 making his annual salary an eye-watering £160,000.
To top it all, the accounts also reveal that Mr Thompson received remuneration of £34,216 from the trust for "consultancy services and expenses".
Nice work if you can get it!

Tory triumph

 

I was very disappointed, but not surprised, that SF came bottom of the poll in the Pembroke St Michael by-election.
Firstly, St Michael is not natural Labour territory and, secondly, he had the disadvantage of living outside both the ward and the town itself.
But, as they say, every cloud has a silver lining and it was nice to see the Tories not only fielding a candidate but winning.
And, of course, when the ballot box spoke, as the leader of the Independent Political Group, Cllr John Davies, likes to put it, it didn't have anything encouraging to say to the ruling junta who ostensibly were not even in the contest.
That said, it was probably more than coincidence that several members of the IPG turned up to support the truly? independent candidate David Owen at the count - among them Cllrs Rob Lewis (cabinet minister for culture and sport) and David Neale, who, as reported previously, had taken Mr Owen on a conducted tour of county hall including a visit to that holy of holies the Cabinet room.
However, now that the Tories have demonstrated that they can win elections without dressing themselves up in independent garb, we may look forward to the day when others will follow Cllr Aden Brinn's example.
That seems to to be the hope of Tory MP Stephen Crabb who told the Western Telegraph: "I hope Aden's victory will encourage my party to field more candidates for County Council elections in future so that local people have the option of voting for a hard-working Conservative councillor in their neighbourhood."
A good place to start would be with the IPG's card-carrying Tories.
The last time I inspected the members' register of interest, these were Cllrs Peter Stock, David Wildman, David Bryan, Mark Edwards and Elwyn Morse.
Indeed, Cllr Wildman was originally elected as a Conservative only to jump ship when he realised that belonging to a minority party was not the route to higher things.
In addition to these party members there are several known or suspected Tory sympathisers inside the IPG including Cllrs Brian Hall and the leader John Davies, who, I am reliably informed, had some part to play in Stephen Crabb's original selection process.
Indeed, I would venture to suggest that the bulk of the IPG hierarchy are Tories, or closet Tories.
Of course, there are a number of members of the ruling party who wouldn't vote Conservative if hell froze over.
But, by lending their votes, and those of the people who elected them, to the cause, they are in effect the instrument through which the Tories hold power.
Useful idiots is the term Stalin used to describe such people.


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