Friday, 4 October 2013

The sky falling in: Daft Arrest - more unanswered questions

 Jacqui Thompson pic

*Updated Tuesday: see below - and Update No 2, with footage link

Not so long ago Mrs Angry updated the story of the 'Daft Arrest' blogger, Jacqui Thompson who blogs under the name of 'Caebrwyn', and writes about the very interesting activities of Carmarthenshire County Council. 

Jacqui lost a court case last year relating to libel proceedings against Mark James, the Chief Executive of the council, who also won a counter claim against her. She His costs for the counter claim were paid by the council, a controversial decision which has now been held to be unlawful by the authority's appointed auditor, as was another decision by the council in Mr James' favour, the payment of £16,353 in lieu of pension contributions.

Local Assembly member Rhodri Glyn Thomas issued this statement in response to the findings:

"Carmarthenshire residents will quite rightly be deeply concerned by the findings of the appointed auditor in that he considers two financial transactions by the County Council to be unlawful.

“For over three years Jonathan Edwards MP and I have raised our concern that taxpayers’ money was being used to indemnify the costs of the Chief Executive’s legal action.

“As a result, Carmarthenshire County Council’s Chief Executive has been the subject of questions to the First Minister of Wales and the UK Secretary of State for Local Government.

“The report’s findings in respect of two unlawful transactions justify the efforts that both Jonathan Edwards and I, as elected representatives, have put into this matter.  The conclusion of the auditor in respect of the indemnity vindicates our position over the last three years.

“The report is exceptionally damaging for the reputation of Carmarthenshire and I am firmly of the opinion that officials and elected members of the council’s Executive must be held accountable for their actions

Jonathan Edwards, Plaid Cymru MP for Carmarthenshire East and Dinefwr, issued this comment:

“In the case of Carmarthenshire council the opinion of the Appointed Auditor is very clear – he considers two expenditures relating to the Chief Executive to be unlawful.

“Carmarthenshire residents need answers.  What advice was sought about the legality of these two expenditures?  How much did that advice cost county taxpayers?  Who took the decision to approve the Chief Executive’s new pension arrangements?  Who is accountable for these decisions?

“As the teams of lawyers from both the Audit Office and the council go back and forth debating the legality of the actions, how much more will this cost county taxpayers?

“It seems as if it’s another day and yet another question mark hanging over county hall. 

“Carmarthenshire needs a political reboot and an end to what I consider to be too cosy a relationship between the ruling Labour and Independent Executive and the council’s senior management. 

“The residents of Carmarthenshire deserve nothing less than a full investigation into how almost £40,000 of public money has been spent unlawfully.”

Strong words.   

And there are other questions which demand a response. 

The Towy Church development issue raised by Jacqui's blog - and by many others - is one which needs a full and open investigation. 

Mrs Angry understands that the refusal of the council to answer a FOI request for correspondence and documentation between the authority and the church is being actively reviewed by the Information Commissioner, and one would hope that on the grounds of public interest this material will consequently be released. There can surely be no valid reason to withold this information from the public domain, and every reason to subscribe to the best interests of transparency and accountability.

Then there is the curious matter of what happened to Councillor Sian Caiach, at the time of Mark James' rather ill considered decision to leave certain remarks about Jacqui Thompson on the 'Madaxeman' blog: the action which led to her instigating the libel case. 

After forwarding his comments to this blog, James then sent a copy of his remarks to every one of the 74 councillors in Carmarthenshire. 

In court the impression was given that no councillor had responded unfavourably to Mr James' comments. In fact, as Cllr Caiach has explained to Mrs Angry, she had raised questions relating to the issue which had precipated much of the conflict between council and blogger - and the act which had led to his calling the police to have her arrested for daring to film a few minutes of a council meeting with her mobile phone:

Sent:  28 July 2011 15:48
To:    Mark James; DSU
Members Bilingual; DSU Members English Only; DSU Members Welsh Only

Subject:       RE: 
Mrs Thompson

I think it would be more correct to say that the response was that several councils would consider filming with the permission of the chair or presiding officer and that Cardiff already films and streams on to the internet .Anglesey are also running a trial sound recording planning and licensing meetings. I strongly suspect that we could record sound at all chamber meetings immediately using the sound system we have. Many English councils have been filming themselves or allowing individuals to film for years without the sky falling in. The press report that a full video system which would presumably last a good few years would cost us less than £20,000. In the interests of democracy and to maintain the trust of our electorate I suggest we vote on this at our September meeting as I'm sure it could be quickly installed before the next council election. We have absolutely nothing to hide but our actions give quite the opposite impression.

Councillor Caiach copied this response to all other council members, to Jacqui, an Assembly member, and a couple of individuals who had also been involved in the debate over filming. 

And now this is where things became very interesting indeed. Around nine months ago, the legal document search requested by Jacqui Thompson's legal team from Carmarthenshire County Council, prior to the libel trial, produced a document passed on to Cllr Caiach, as it concerned her. 

This was a form showing that Councillor Caiach's emails were 'monitored' on the 28th July 2011, that is to say the same date on which Mark James sent his remarks to the Mad Axeman blog, and copied them to all members, and the same date that Sian replied as shown above. Sian told Mrs Angry:

It reads:
Telephone/Attendence with telephone circled and the name (redacted name of officer) written alongside.
In the same handwriting  below "appears it was sent out on 28th 4.22-4.38 x 4 times
S.M.Caiach  to .... the recipients listed below including every other councillor

Cllr Caiach says that shortly after this 'monitoring', council policy was revised to allow senior officers to access any emails. It is unclear why this should be necessary, or what safeguards accompany such right of 'access'.

Sian was not informed about this intrusion into her email correspondence but made a complaint to the Monitoring Officer and Head of Law, Linda Rees Jones, who accompanied Mr James to the High Court during the libel trial. 

This complaint has apparently not been through any due process of investigation: see below.

As Sian commented  to Mrs Angry:

Its obviously very serious if councillors are having their emails monitored without their knowledge or consent. I am not an employee but in law an employer and am horrified that my emails have been monitored without proper process, no information to me and no reason given. I have only come across this by chance because a document search by someone else unearthed it by accident.

The council give all of us elected members a laptop and publicise our email addresses on their website and I feel that the fact that they access them and monitor what we are saying is a betrayal of trust not only to us but to those who contact us.

According to Jacqui's report on her blog

 at a meeting last month this matter was yet again raised by Cllr Caiach:

Before leaving the meeting Cllr Caiach took another stab at asking about her 'tracked' email. She'd asked the Head of Law for an explanation months ago and there was still no reply although she understood that there was some sort of draft report about 'members' emails' somewhere in the system. The Head of Law replied that she thought Cllr Caiach was complaining to the Information Commissioner so hadn't bothered with a direct response. Cllr Caiach reminded her that she had said she intends to go to the ICO, but procedure would preclude her from doing so until she'd had a response from the authority. I think she assumed that Ms Rees Jones would be familiar with such standard procedures.

This is surely completely unacceptable. 

That an elected representative should have his or her emails intercepted in this way, with or without their knowledge raises all sorts of ethical and legal questions. It might well be argued that there has been a potential breach not just of confidentiality, but of the Data Protection Act, for a start. For the authority to evade questions as to how this 'monitoring' came to take place can only raise further concerns about the council's committment to the principles of transparency and accountability.

Mrs Angry has a lot of respect for Councillor Caiach. She is a courageous woman, who is almost unique in having had the integrity to diverge from the otherwise unquestioning obedience of the other councillors in her local authority. She has a record of whistleblowing in her former career as a doctor, reporting the misuse of NHS resources for private practice , and clearly has no intention of keeping quiet about perceived injustices in her new role. This would seem to be the reason she has been the subject of 'monitoring', but on what pretext, or at whose behest, is not clear.

And Jacqui Thompson is a courageous woman too, who has continued to write about Carmarthenshire County Council, despite the outcome of the court case regarding the Chief Executive. She has recently been granted permission to appeal part of the findings of this judgement, and is hoping to receive permission now to challenge other aspects of the findings.

 the arrest of Jacqui Thompson       pic Alex Murray Smith

During the libel hearings, much support was shown for Jacqui: the activities of Carmarthenshire County Council had featured regularly in the Rotten Boroughs page of Private Eye, and after her arrest, which involved the ignominy of being put in handcuffs, driven miles to a police station and put in a cell for several hours, only released after she agreed not to repeat the dreadful 'crime' of filming a few minutes of a council meeting on a mobile phone, there was, not surprisingly, widespread media outrage over her plight. 

The libel case therefore attracted a fair amount of interest too, which increased as the trial continued.

The Times condemned the behaviour of Carmarthenshire County Council in pursuing this case against her: journalist Heather Brookes attended the hearing, and legal blogger David Allen Green turned up to show support. Eric Pickles told Channel 4 News:

"In my personal view, this arrest and legal action by the council has been a complete waste of taxpayers' money. Councils should not be trying to suppress democratic freedom of expression."

After the verdict, and the tone of the findings by Judge Tugendhat, everything went a little quiet and the media interest faded away. Jacqui Thompson was left with an order to pay Mark James £25,000 in compensation, and then the devastating sum of £230,000 in costs. The payment of such a sum may well lead to the loss of Jacqui's home.

 When the costs were announced, a spokesman for Carmarthenshire County Council said:

"We very much welcome this decision by the High Court to award us costs.
It was right and proper that the council supported this action, where it emerged that Mrs Thompson had engaged in an unlawful campaign of harassment, defamation and intimidation targeted against Mr James and other council officers.

Mrs Thompson started this action, and it is regrettable that due to this she has caused a huge amount of wasted time and money, and now finds herself in the position of having to pay costs too."

 Now of course it has been ruled unlawful for the council to have supported Mr James' action, but it is unclear what impact this may have on the issue of costs. And now there is the matter of the forthcoming appeal, due to be heard at the High Court on December 16th. 

There is a surge of renewed interest in the developments in Carmarthenshire, as the story continues to develop. It seems likely that the conclusion to that story is not anywhere within sight, and there are still outstanding questions to be resolved. 

*Updated Tuesday:

As if by magic, since this post was published, Councillor Sian Caiach has received a response from Linda Rees-Jones, the Head of Law and Monitoring Officer of Carmarthenshire County Council, in regard to the matter of the interception of her emails on the day of Mr James' comments to the Madaxeman blog. Ms Rees Jones, of course, accompanied Mr James on his trips to the High Court, during the libel hearing.

Dear Cllr. Caiach,
Apologies for not having replied sooner, but according to the interview you gave the Press at the time you stated that you’d made a complaint to the Information Commissioner (rf. item on walesonline of the 7th
June 2013 headed “Councillor complains to Information Commissioner after Local Authority Accesses her E-Mail” and the underlying text stating that “a councillor is complaining to the Information Commissioner ...” ) so I had been expecting to answer your complaint via that process. I hadn’t known until September’s Council meeting that you hadn’t in fact made a complaint as yet but were awaiting my response. Please treat this as my response.
Perhaps first of all I should refresh your memory about the use of Council’s IT. After you were re-elected in May 2012, you along with all other members signed an undertaking to abide by the conditions outlined in the Council’s IT policies whilst using equipment provided by the Council.
The Council’s E-Mail Usage and Monitoring Policy applies to employees, members, contractors and temporary staff alike and it puts all on notice that e-mails must be used in accordance with the Policy and that e-mails will be monitored. “Monitoring” means checking e-mails after actual transmission. The Policy provides (amongst other things) that documents and messages created or sent by the Authority’s e-mail system are owned by the Authority and not by individuals and that internal e-mail
and other internal materials must not be forwarded to destinations outside the Authority unless this is done in the course of performing the business of the Council.   In late August 2011 the Authority became aware that an internal e-mail sent by the Chief Executive to all members had been shared with someone outside the Authority. This sending of the internal e-mail to external e-mail addresses in breach of the Authority’s Policy was tracked to you. Please note that tracking does not involve opening or reading
e-mails so any message attached  by you to the forwarding of the e-mail will not have been viewed. So no e-mail of yours has been “monitored”.
But, for the avoidance of doubt, as I said earlier in this e-mail the Policy makes it clear to all that monitoring may take place.
Yours faithfully,
Linda Rees-Jones
Head of Administration & Law
& Monitoring Officer,
Carmarthenshire County Council

How very interesting. 

Mrs Angry for one finds it very reassuring to know that Carmarthenshire County Council has an early warning system for every rogue email daring to exit the boundaries of the authority's cyber space, and imagines that there is a big red alarm bell on Mr James' desk that rings each time this happens, and causes immediate action to be taken to note - but not monitor - the errant message.

What nonsense. 

Emails will be monitored, but this one was not monitored: it was tracked. And not read.

Got that?

We are told that they 'became aware' that an internal email had been shared 'outside' the authority in late August 2011. Yet the search which picked up Cllr Caiach's email, according to her, was believed to have taken place the next month, at a time which coincides with Jacqui Thompson's legal team sending their first notice to the council raising concerns about the alleged remarks by the Chief Executive, but before it was clear that the matter would go to court. 

In either event there it is reasonable to conclude the search was connected to objections raised by Jacqui Thompson. It is for readers to speculate why the authority might want to know the details of Councillor Caiach's email correspondence on the day on which Mr James sent the controversial comments regarding Jacqui to the Madaxeman blog. And this unexplained action raises many other questions, for example: 

Were any other councillors' emails on this day also not monitored, but 'tracked' in this fashion? If so, why, and when? 

Is the 'tracking' of councillors' emails a routine habit, in Carmarthenshire? If so, why? 

Are the councillors aware of the possibility that their emails are liable to be 'tracked' in this way, without notification, or good reason, or any accountability from the officers they employ? 

What safeguards are there in place that such a facility is not used for political purposes and does not breach confidentiality, or indeed the Data Protection Act? 

And finally, the most obvious question of all: who is running Carmarthenshire County Council? Is it the elected representatives of the residents and taxpayers of this area, or is it the Chief Executive and his senior management team? 

Jacqui Thompson's appeal against the punitive High Court judgement of the libel case are due to be heard in December. Anyone who writes about local politics will have felt the cold chilling effect of Judge Tugendhat's findings, on a case funded unlawfully by public money: it is therefore in all our interests that the principles of clarity, transparency and accountability are applied to what happened, is happening, in Carmarthenshire. 

After all the controversy surrounding the unlawful payments - and other serious issues of public interest - it is clearly time for there to be a full and independent investigation of the way in which this administration is operating.  Mrs

Update No 2:  

Mrs Angry's attention has been diverted to this absolutely fascinating footage of a meeting of Carmarthenshire County Council on the 12th June 2013, in which members of the council, one of whom is concerned about maintaining the Nolan principles in public office, ask some very interesting questions about the email 'tracking'. 

Chief Executive Mark James and his Head of Law Ms Rees-Jones dismiss such concerns. Mr James refers to the matter as part of disclosure required by the High Court, which Jacqui Thompson alleges was in fact in  August/Sept 2012, a year after the email was tracked. 

Clearly there is a great deal of confusion over this matter, and some clarification is urgently needed. 

Please watch from 2.47 to 2.57. In this sequence - and note that the webcast itself is a novel experience which would never have been adopted without the debate over filming provoked by Jacqui's arrest - you will hear the Chief Executive remind councillors what they 'signed up for' in regard to email 'monitoring'.

Mrs Angry is trying to imagine any Chief Executive in Broken Barnet speaking to elected members of the council in this way. It is an enjoyable thought, but unlikely to occur here.


Mr Mustard said...

Who is monitoring councilors' emails here Mrs Angry?

A pound to a penny there has been internal snooping in Barnet.

Mrs Angry said...

No: impossible, because if you ever submit an FOI for Tory councillors' emails, the council finds it does not hold such information ...