The truth is more complex - revealed, at last - a cataclysmic failure of governance, in Broken Barnet

Clare Lloyd-Jones             pic courtesy of the Marston Group

*Updated Wednesday: see below

1.3 The voting on ‘wrong’ reports, and the subsequent unraveling of the decision-making structure caused Barnet to be mocked in the local press with headlines using words such as “disgrace” and “chaos”.  No Local Authority would wish to be subject to such avoidable public criticism.

The truth is more complex.

In the last post, you may recall, Mrs Angry raised a question about the long awaited report by lawyer Claer Lloyd-Jones, who had been asked to conduct an investigation into Barnet's governance service earlier this year, but whose findings were as yet unknown. 


By coincidence, or not, but only by accident, it was discovered by local bloggers yesterday that her investigation had not only been concluded, but the findings submitted to the authority last month. 

No announcement of this report, nor the very serious implications for the governance and legal compliance of our local democratic process, had been made by the authority, and quite clearly the matter was being kept under wraps for as long as possible. Until Monday, that is, when someone found out about it, rather than being made known in a formal announcement to the residents and taxpayers of this borough, in an admission of failure on an almost apocalyptic scale,

The findings are simply staggering, and expressed in blunt terms by Ms Lloyd Jones. 

Take for example these observations: 

• There is no-one who understands local government law in depth at Barnet. 

• Barnet employs no lawyers. 

• There are staff in key roles in the Governance structure in Barnet who are inexperienced in governance matters.

• There was no clear protocol for clearing council reports throughtaking external legal or other specialist advice.

And here is the damning conclusion:



7.1 Barnet Council was ridiculed in the local press for finding itself in the position of having misapplied the political proportionality rules and thereby failing to keep member decision-making safe from challenge. The Chief Executive was subsequently given advice that committees that were not properly and lawfully constituted, an could not continue to meet and make decisions prior to the next Council meeting on July 15th. Leading Counsel’s opinion was taken and he advised that although the political proportionality rules had been misapplied, the committees could continue to meet and make lawful decisions due to the savings provisions in the Act. Leading Counsel’s opinion was preferred. 

7.2 The facts leading up to these events demonstrate that there was no clear protocol or process between Barnet Governance Team and HBPL for providing legal clearance of council reports to ensure that they were correct. In the case of both the political proportionality report and the members allowances report, legal advice was asked for from HBPL. It was not forthcoming, and the absence of legal advice in the reports was not escalated nor chased by Barnet Governance Team. 

7.3 The risk of either of those reports being wrong was therefore high, given that Barnet does not employ any lawyers itself, and the relevant governance staff responsible for these reports are relatively inexperienced.

 7.4 This high reputational risk to the council was multiplied by the change to alternative political management arrangements, ie a return to the Committee system. This risk was further aggravated by a very close election result. 

 7.5 Mitigation of the risk would necessitate early consideration of the legal principles, and close and careful attention being paid to the compilation of reports, in draft, and when submitted to council for decision. This would require at the very least, close collaboration between HBPL and Barnet Governance Team. 

7.6 All parties involved were capable of spotting that something was wrong with the reports, but no-one did. To those members involved, the perception was that no-one was in charge. 

7.7 I find that Barnet’s Governance Team were responsible for the reports being sent to print in their incorrect form and subsequently voted on by members at June 2nd Council meeting. Members were not advised that the reports had no legal clearance, and the form of the report gave no indication of whether the report had been cleared or not. 

7.8 I also find that Barnet’s Governance team were jointly responsible with the shared Legal Service, HBPL, for those reports going to print containing misapplications of the correct law, and allowing members to vote on them as though they were correct. Copies of the reports had been sent to HBPL at an early stage. They gave no comments or advice. The Harrow MO attends Barnet Council meetings in order to advise the Barnet MO and Chief Executive. 

 7.9 In order to prevent the risk of some other governance failing attributable to the absence of legal advice or misapplication of legal advice, a number of changes need to be made to both the IAA and to Barnet’s internal governance arrangements 

You can read the full report here: 

 http://barnet.moderngov.co.uk/documents/s18278/Appendix%201%20-%20First%20report%20of%20Claer%20Lloyd-Jones.pdf …

 
This investigation had been prompted by a catastrophic failure in the creation and implementation of the authority's new committee system, a sytem to which our Tory members, in their wisdom wished us to return, but failed to ensure that the correct establishment and processes were in place when the change was made. 

The Monitoring Officer of Barnet Council, also the Director of Assurance, since April 2013, is - or at least as far as we know, still is - Maryellen Salter, the former head of internal audit (previously employed by our external auditors, Grant Thornton). 

Will no one think of the Customer? 

Apparently not: we were the last ones to know, weren't we, Mr Naylor?

From the start of the new Tory administration, it was clear that something was badly wrong. The political proportionality of the committees was incorrectly balanced, and it emerged that the committees themselves, therefore, and any decisions made by them, were possibly unlawful. All council meetings were cancelled. It was then announced that they were lawful, after all, and could go ahead, or that they may be unlawful, but any decisions made were not - but no one seemed quite sure. 

The first Full Council meeting of the new administration was an absolute shambles, directly as a result of the incompetent organisation of the new system - and the plotting of Tory councillors, terrified of the implications of their slender majority, intent on excluding Labour members from all opportunities to exploit their vulnerability.

The situation was, in short an all round disaster, and the administration eventually agreed that there was need of an independent investigation.

In the meanwhile, the life of the administration carried on, as if all were well. 

The Tory group launched a series of policies and actions which raised serious questions about the legality of their basis, and the consequences that ensued. 

The new Mayor, Hugh Rayner, was accused by AM Andrew Dismore of a number of very serious allegations relating to his business activities and apparent failure to make declarations of pecuniary interest. The Monitoring Officer disallowed a number of the allegations, which Dismore - who, unlike the Monitoring Officer is a lawyer - fiercely disputed. 

Rayner escaped unscathed from the politically weighted panel hearing, cleared of all charges.

Earlier in the year, a Labour councillor was falsely accused of 'taxdodging' in regard to her council tax. The fact that this was not true, and the false charges due to failures by the council and Capita, did not stop her reputation being smeared, and she had been referred to the police with all speed by the authority within hours of an initial interview about the unfounded claims.

The case of the Tory Mayor, by contrast, involving far more serious allegations, but was not referred to the police.

Bearing in mind the criticisms in the report regarding the provision and quality of advice and support since Barnet outsourced its legal services to HBPublic Law, questions must now be raised about the management of both cases.

There are in fact many decisions and actions which must now be subject to review, and challenge where necessary: including the deeply dubious allocation of 'dispensations' that our Tory councillors have obliged the Monitoring Officer to give them, so as to allow them to take part in meetings and decision making even when they have pecuniary interests: a clear defiance of the Nolan principles that are supposed to govern those in public posts, and, prima facie, an arguably unlawful move, in breach of the localism act, and legislation which makes the non declaration a criminal offence. 

The  status of such dispensations in regard to the authority's own regulations is certainly questionable: a statement made on the subject on behalf of the authority said that it was assumed the dispensations were constitutional. A statement that is an example, we can now conclude, of the lack of legal oversight described by Ms Lloyd Jones in her report. 

False assumptions can be very costly, can't they?

But these are only a few instances of what is clearly a terrible failure in governance, and law, by Barnet Council. 

The report makes clear that this disastrous situation is a result of the ill conceived outsourcing of legal services, and the removal of the post of head of governance, (or democratic services, as it used to be called when there was at least some semblance of democracy in Barnet). It should also be remembered that the Tory administration sanctioned the cutting of several posts within the governance service.

The Monitoring Officer may well be set up as the solitary scapegoat for this mess: but that would be unfair, as clearly the responsibility for governance and law is ultimately borne by the Chief Executive and Chief Operating Officer - and of course the real culprits here are the Tory leader and his senior colleagues, who decided on this course of action, and were happy to approve both the abolishment of in house legal services, and the post formerly held by the most senior lawyer, who also ensured the proper process of governance.

Tory councillors are this morning gathering in a panic at the council's headquarters at North London Business Park in order to discuss this unprecedented state of crisis.

Apart from the disastrous findings of the report, one must ask why members appear not to have been informed of the findings until now; and why the report was not made public, but was sat on, and then sidelined, sneaked into the agenda of a policy and resources committee agenda? 

The final version was apparently published on 14th September, the original date, it seems, of the report, was in August.

In the time since the investigation has begun, hugely significant decisions that affect not just members, or employees, but the daily lives of every man, woman and child in this borough, have continued to be made, even after the report was submitted - despite the serious questions now raised about the very constitutional basis of the council. 

Once the report and its findings were made known to those who commissioned it, no press release was made, no statement given, until bloggers broke the news, stumbling upon the report, hidden in plain sight, in the unpublicised agenda of the Policy & Resources committee. 

Only when the findings had been uncovered in this way did the council respond. 

This is simply not good enough.

Mrs Angry tweeted the following question to Mr Chris Naylor, the Chief Operating Officer, and enthusiastic supporter of open government, this morning: 

 Mrs Angry ‏@BrokenBarnet 4h4 hours ago

If the default mode of @BarnetCouncil is 'open gov' @publicnaylor why has the damning report into governance not been openly acknowledged?

He replied:

Chris Naylor ‏@publicnaylor 52m52 minutes ago

@BrokenBarnet do you mean the report published on the web, that is going to a public meeting and that we're talking to the press about?

To which Mrs Angry's response was:

 Mrs Angry ‏@BrokenBarnet 25m25 minutes ago

@publicnaylor Oh come off it: a report with such serious findings should have been put in the public domain with a statement asap, not sat on

(He's still arguing on twitter, by the way, and getting some well deserved impertinence in response).

It is clear that there is urgent need for an emergency council meeting to discuss this report, and the fullest scrutiny given, in public, to the implications.

Perhaps one question that might be asked is this: was the requirement for legal qualifications removed from the job description of the post now held -maybe - by the current Monitoring Officer? 

If so, who removed it, and why? 

Was there a risk assessment of the consequences in failing to have a lawyer in this statutory post?

How many decisions by the authority since the new structure was in place are now potentially invalid, and subject to legal challenge, and how much cost to local taxpayers will there be, as a result?

What does this latest failure in outsourcing tell us about the risks presented by the two massive Capita contracts which our Tory councillors have committed us to for a period of no less than ten years? 

Let's look again at one of the findings of the report by Claer Lloyd-Jones:

7.6 All parties involved were capable of spotting that something was wrong with the reports, but no-one did. To those members involved, the perception was that no-one was in charge.

There, in short, you have the most damning observation of all. 

Don't be fooled by the tradition of Broken Barnet in which all major cockups, from the Icelandic fiasco to every other mess that has occurred, are blamed on one individual, and addressed by the sacrifical offering of that person's job.

The incompetence of senior management, the inexperience of one senior officer, the lack of professional support from our oursourced legal service: factors which contributed to the perfect storm we now see wreaking havoc in the administration of our local authority, but the truth is that, ultimately, this is a political failure by the Conservative leader, and his party. 

Richard Cornelius takes a hands off approach to governance, and has left all the boring day to day management of the council to 'Travers', as he refers to him, in the manner of the master of Downtown Abbey flinging his coat on the floor for his valet to pick up. 

But Cornelius had ultimate responsibility for this awful situation, and must accept that. 

He should now consider his own position as leader, even if the Chief Executive remains in post, safely enveloped in the protection of that black hole he carries everywhere with him.

The investigation by Claer Lloyd Jones tells us some of the story: the rest is unknown. 

What is clear is this: our council is being run by a bunch of incompetent fools, with a catastrophic  disregard for the due processes of law, as well as the need for transparency, and accountability. 

And while we disport ourselves in the wake of these revelations, those who are waiting offstage, waiting to take advantage of the opportunities offered by the Tories next round of privatisation will be standing by, grinning, and rubbing their sweaty hands with glee.

More later.

Updated Wednesday:

A statement has at last emerged from the Barnet Labour leadership:

Labour calls for no confidence vote in Council Leader after damning report on governance failures

Labour councillors have called for an Extraordinary Council meeting after a damning independent report was published yesterday into June’s shambolic Annual Council Meeting and the constitutional crisis that followed where the decision-making process in Barnet ground to a halt because committees were not properly constituted at the Annual Meeting.

The independent report states that: 

• There is no-one who understands local government law in depth atBarnet. Barnet employs no lawyers.

• There are staff in key roles in the Governance structure in Barnetwho are inexperienced in governance matters.

• There was no clear protocol for clearing council reports throughtaking external legal or other specialist advice.

• Barnet was moving to a very different Constitution at the Annual Council and needed to have given detailed consideration to the implications of moving back to the Committee system. It is not just a question of making amendments to the Constitution.

• Legal Advice was requested on both the reports, but was not forthcoming on either in time for them to be printed. No-one at Barnet queried this or noticed anything was wrong.

Barnet’s legal service was outsourced through a shared service agreement with Harrow Council under the One Barnet mass-privatisation programme in April 2012 on the basis that it would save money and provide greater flexibility and capacity to manage the council’s legal work more efficiently. But the independent report suggests that Barnet does not have “access to pro-active professional and expert advice at all relevant times” and that “the clienting of the HBPL service has had no professional legal input looking at the quality of legal advice given for 18 months”. Last month’s performance data also shows the outsourced service is currently overspent by £138,000 or 7.7% of the overall budget.

The Cabinet Resources report from the Leader of the Council that recommended the outsourcing also states that “Governance arrangements will be developed to enable this council to have strategic oversight of the Joint Legal Service…”, but the independent report findings show this hasn’t happened. 

The council was supposed to have appointed a legally qualified person to monitor the contract with Harrow Council according to the Inter Authority Agreement but this did not happen either.

Authorisation of the Inter-Authority Agreement with Harrow Council was delegated to the Leader of the Council and Deputy Leader of the Council.  This authorisation was formally published in an officer delegated powers report which was exempt from call-in by scrutiny.

Legal services were outsourced within a very short timescale – only 4 months after the proposal first appeared on the One Barnet Programme highlight report in December 2011.

Leader of the Barnet Labour Group, Cllr Alison Moore said: “The current legal and governance service is clearly not fit for purpose, but it was the Leader of the Council who proposed outsourcing legal services in the first place, who authorised the final detailed agreement with Harrow Council, and who proposed and has presided over the introduction of the council’s new committee system.

“In addition, the Chief Executive needs to answer for the failure to ensure that there was sufficient in-house legally qualified oversight of the outsourced legal service, and the failure to ensure that councillors and the council were provided with correct legal advice.

“In my view both should go, but the buck has to stop with the Leader, so we have called an extraordinary council meeting to debate this issue - it is too important to be left to a single committee and all councillors should have an input into the way forward.”