Thursday 30 January 2014

A process in the weather of the world: a damning report, and calls for the sacking of the 'Daftarrest' Chief Executive

Mark James after his High Court victory (left)

A hugely significant development today in the story of Carmarthenshire County Council's Chief Executive Mark James, with the publication of a damning report by the Welsh Audit Office, which has found that two payments to him from the council in regard to his pension, and a legal indemnity, were unlawful. See here for the report.

In regard to the pension payment, Anthony Barrett, the Appointed Auditor, holds the payment to be 'contrary to law' on the following grounds:
  • The Council does not have the power to remunerate staff to mitigate the effect of pension’s legislation.
  • In making the decision, relevant considerations were not taken into account (in breach of Wednesbury principles).
  • The Council failed to have due regard to the public sector equality duty.
  • The decision amounted to indirect discrimination.
  • A senior officer who had a disqualifying personal and pecuniary interest in the decision, participated in the decision making process.
 Commenting on the libel indemnity, the Auditor has found:

"that the Council does not have the legal powers to make such payments and there were inadequacies in the processes adopted by the Council when making the decision".

This report has important implications for Welsh blogger Jacqui Thompson, who writes as @caebrwyn, and whose arrest in 2011 for daring to film a few minutes of a meeting of Carmarthenshire County Council provoked a huge outcry, and led to a libel case between her and the authority's Chief Executive, Mark James. 

James had left some controversial comments on another blog in regard to Jacqui Thompson's arrest, which she felt were libellous. 

Jacqui Thompson, arrested and handcuffed after Mark James called police to stop her filming a meeting with her phone   pic: Alex Murray Smith

In response, he issued a counter claim, and in an extraordinary move by Carmarthenshire County Council, received an award of public money in order to cover his costs. This move was widely seen as an attempt by the authority to pursue a blogger who was causing severe embarrassment by raising so many issues of public concern, and focusing attention on an authority which local politicians have criticised for existing in a state of democratic deficit, with senior officers acting beyond the definition of their roles, and failing to be accountable for their decisions in the way that meets the demands of transparency.

The finding in the libel case by Judge Tugendhat was devastating - deeply condemnatory: he rejected her action in regard to the comments made about her by Mark James, and completely accepted the argument put by James's counsel - that Jacqui Thompson was engaged in a malicious and personalised campaign against Mr James, and refuted the case in her defence, that she was indeed acting in the public interest. 

The terms of his judgement were harsh, and severe, and provided the basis for a punitive award of costs and compensation, the size of which necessitate the loss of Jacqui Thompson's home. At the very least, as legal blogger David Allen Green commented, it was an 'illiberal' judgement.

Since then, many of the issues raised by her in her blog have been taken up by politicians and the media and shown to be matters of genuine public concern. The generous award of money and land to the extreme evangelical Towy Church body, was followed by the announcement of highly controversial plans for a 'Mercy Ministries' hostel for vulnerable young women; the intimate relationship between Carmarthenshire County Council and the Scarlets rugby team has been brought to the attention of European Union authorities. 

One related matter which is yet to reach any conclusion is the curious case of the 'snooping' by council officers on emails sent by Councillor Sian Caiach at the time of the comments left by Mr James' about Jacqui on the Madaxeman blog, see here:

Jacqui's criticisms of the pension payment, and, more importantly in this context, the libel indemnity, have been proved today to be correct, and legitimate issues of public concern. In court, the unfair representation of her case, including her allegations in these matters meant that the judgement dismissed out of hand such concerns and had a direct bearing on the level of costs and compensation that were given against her. Take one comment from the judgement, which you may view in full here: 


Finally, the abuse argument based on the grant of an indemnity by the Council to Mr James is also without foundation. As discussed in the Comninos and McLaughlin cases, there are procedures by which the grant of an indemnity by a Council to an employee in respect of the costs of litigation can be challenged. The fact that Mr James has received such an indemnity cannot make his Part 20 counterclaim an abuse. In any event, whether or not the grant of the indemnity was open to legal challenge would require investigation of the reasons for it which have not been adduced in evidence by Mrs Thompson.

 Another interesting aspect of the finding were the terms which Judge Tugendhat found to be objectionable:

  1. There are five publications by Mrs Thompson about which Mr James complains. Four are very similar in that they all contain the words "slush fund", and the fifth (the third in order of time) is quite different, where the most objectionable word is "Pinocchio". Mrs Thompson's first point in her Defence to these Part 20 claims is that they are an abuse of the process of the court. I address that submission below.
The term 'slush fund' referred to the libel indemnity, now held to be unlawful by the Auditor, and 'Pinocchio' referred to a comment in a humorous post regarding the choice of a name for a local theatre, whose name was voted for by the public, but for some reason was ignored by the council in favour of the name that came second. The judge held that the use of the name 'Pinocchio' was defamatory in regard to Mr James's integrity and reputation as the local Returning Officer.

Other aspects of the court case included a refusal to allow a trial by jury, on grounds that were unclear.

This may or may not be related to objections by the other party to references to the details of her arrest, handcuffing and detention in a cell, until she agreed not to repeat her perfectly lawful act of filming a council meeting with her phone, and the peculiar reluctance to allow some of her witnesses to take the stand. 

(Only recently, incidentally, some correspondence from local police in regard to her arrest has been published by Jacqui Thompson here:

The then deputy Chief Constable made clear his disapproval of the behaviour of council members and officers in the course of this incident.)

During the libel trial, Mr James's employees from the council, junior officers, were allowed to speak, and their evidence was accepted by the court.

At another point in the proceedings, Mr James' counsel implied that Jacqui had unfairly raised the question of a potential sympathy by Mr James towards Towy Church. As you can read from a post linked below:

"Mr Speker thought that she had suggested council members or officers were 'loyal followers' of the church. Jacqui denied this, saying she did not know of any who were such followers. When it was put to her that she had made insinuations that Mark James is a member, she denied this too and said she had no idea if he is.

 Another suggestion from Mr James counsel: that 'every time ... you see corruption by officers'

No, she retorted. The council should be open to criticism.

Just before sitting down, he had stated, in a remark which went unchallenged, that Mr and Mrs James were not members of Towy Church. 

As  you may read here:  - in fact Mr and Mrs James are members of another very similar evangelical church, yet Mr James made no declarations of interest in regard to this at any council meeting. Grants were also awarded in closed sessions. 

Without implying any wrongdoing in regard to any agreements with the church body, we now know that the Auditor has found the award of payments to be unlawful both in principle and in terms of the process during which declarations were not properly made due to a failure to follow the correct procedures:

There were failings in governance arrangements and processes adopted by the Council 
The decision was unlawful as the Chief Executive participated in the decision-making process whilst having a disqualifying personal and pecuniary interest in the decision

It would therefore appear that there is need of a wide investigation into the failure by senior officers of this authority to abide by the constitutional procedures that require full declarations and recusal from meetings that involve a member or officer of the authority.

Jacqui's interest in this subject was, it may now be reasonably argued, after all, perfectly valid - and not as suggested, a personal and malicious obsession, but a matter of public interest. An objection to the lack of transparency of a local authority was justifiable, and it was wrong to present this as a personal resentment of the Chief Executive. Doing so, however, allowed the authority to support action against one of its most vociferous critics. 

Here then is the significant point for all journalists and bloggers who dare to uncover the various inconvenient truths, secrets and lies that permeate the activities of local goverment, or indeed any public body that is evading the glare or scrutiny and accountability. Those bodies will try to shut you up, whether it is by foul means or fair, trying any or all tactics, from continued breaches of the Freedom of Information Act, obstruction of the right to film meetings, the redaction of data meant to be in the public domain,  the  data protection act ... or the threat of litigation.

The law is meant to be the safeguard of our rights and liberties, and our freedom of expression. To misapply the law to silence an opinion we do not like, or an act of scrutiny that reaches too near to the truth, is an abuse of process, and an injustice.

In this case, a motivation of public interest was rejected by the judge's finding,and this conclusion led to the enormous burden of costs and compensation which Jacqui Thompson now carries. A high price to pay, for the loss of her own libel action, and the success of a counterclaim, unlawfully funded by public money.

Having been present throughout the trial, and appeal, and followed this story from the time of the arrest, I believe that although Jacqui was ill advised to pursue the libel action, and some of the comments in her earlier blogposts may also have been ill judged, in terms of the severity of the outcome of the findings of the libel trial, and the resulting punitive burden of cost, there has been a serious miscarriage of justice.

And local MPs and other community figures have voiced concern over the way in which members of the council and senior officers have blocked discussion of the Audit investigation into the two payments in council meetings, despite protest from other elected members. 

It is also clear that accountability and transparency is not properly served by the culture of secrecy which has become embedded in the administration of this authority, and local politicians have been quick to demand resignations or dismissals as a result of the outcome of the Audit reports. Here is a press release from Plaid MP Jonathan Edwards and AM Rhodri Glyn Thomas:

Politicians respond to damning Wales Audit Office reports into Carmarthenshire County Council

Senior officers and elected leadership must go, say Plaid Cymru MP and AM 
Following the publication of two damaging Wales Audit Office reports into the indemnity and pension arrangements of Carmarthenshire County Council’s Chief Executive, Mark James, Plaid Cymru politicians Rhodri Glyn Thomas AM and Jonathan Edwards MP have issued the following statement.
Assembly Member Rhodri Glyn Thomas said:

“There is no way in which the council can gloss over what are two significantly damaging reports.  This is a very dark day for Carmarthenshire, a dark day for democracy in Carmarthenshire, and is an example of what happens when you have a very weak executive and a council controlled by powerful unelected officers. 
“The decision taken by the political leadership of the council to approve an indemnity for the Chief Executive was based on a sexed-up dossier that did not reflect the legal advice provided.  The gross misconduct of the council officers involved in drawing up the report has brought the council into disrepute and should be countered by instant dismissal. 
“Councillors were misled into spending taxpayers’ money doing something the Council was to all intents and purposes cautioned against.  Members of the Executive Board have been exposed as incompetent in safeguarding public money and inept in holding highly-paid officers to account.  They further approved unlawful expenditure to suit the tax arrangements of the Chief Executive.
“The reports reaffirm our grave concerns that Carmarthenshire council has been gutted of all democracy as pre-meetings of the ruling Labour-Independent Executive Board take place behind the scenes before tokenistic rubbing stamping exercises follow in public, if at all. 
“To restore public confidence there must be political accountability.  The Leader of the Council and former leader of the council should accept responsibility and do the honourable thing to enable a political reboot. 
“Plaid Cymru has worked hard over the last year to introduce greater accountability into the remuneration packages of local authority chief executives, and has been successful in seeing changes to salaries being scrutinised by the independent remuneration board. 
“We’ve done what we can to bring greater transparency on payments to senior council officers.  The Welsh government must now get a grip of the situation.”
Member of Parliament Jonathan Edwards added:

“For almost four years we have raised concerns with both Welsh & UK governments about the legality of the council’s indemnity for the Chief Executive’s counterclaim.  The Welsh government’s refusal to intervene in a council run by its Labour colleagues has seen Carmarthenshire taxpayers’ subjected to these unlawful expenditures when this could have been stopped.

“The unlawful indemnity and unlawful pension arrangements have seen over £55,000 of public money spent for the benefit of the Chief Executive who, on the basis of these reports, can no longer continue in his role.

“We agree with the Auditor that the indemnity should be withdrawn and we believe the almost £30,000 spent on this indemnity should be paid back in full.

“The Executive Board has acted wrongly in both instances – approving decisions worth tens of thousands of pounds without raising any formal questions or concerns.

“We pay tribute to the Appointed Auditor for his thorough report and his determination in bringing these issues into the public domain when Carmarthenshire Council had the audacity to tell him to keep his nose out. 
“The Welsh government should immediately put the council into special measures to enable a new cross-party coalition to be set up to bring an end to this dark chapter in the history of local governance in Carmarthenshire. 
“We call upon all Labour and Independent councillors whose parties run this council to look seriously at these reports and join us in restoring democracy to the county.  Carmarthenshire needs a complete reboot and new political leadership which it has so desperately lacked. 
Even more seriously, potentially, for Mr James and Carmarthenshire County Council is the statement from local police this morning in which they stated that they are in discussions with the Auditor in regard to the report.

Dyfed-Powys Police said: “We can confirm that we are aware of the reports issued by the Wales Audit Office, and while the matter hasn’t been referred to us, we are in discussions with the Auditor and will be making an assessment in relation to any appropriate action by the police.” Western Mail

It seems that Carmarthenshire County Council has yet to issue any statement.



Cneifiwr said...

Thank you a very good summing up of where we now find ourselves in Carmarthenshire.

I think that the auditor's report is also of significance on a wider stage. He very clearly states that councils may not indemnify officers and members to bring actions for defamation.

Of course, the auditor is not a legal authority, but he will have taken advice from counsel to the government.

Other councils will no doubt be taking note.

If Carmarthenshire is daft enough to go to court over this and its dodgy pension arrangements, let's hope that we get a court ruling that once and for all puts a stop to this sinister method of silencing critics.

Anonymous said...

Where would we be without people like Jacquie and Mrs Angry! They should both stand as Independents at the next General Election - a shoo in!

John Brace said...

On the restrictions on the right to film public meetings, I got a letter from DCLG about that which I will be blogging about later.

The Local Audit and Accountability Bill received Royal Assent today. Regulations on filming can happen any time after two months has passed since the Bill becomes an Act. The letter refers to regulations "after March" so not too long to wait now!