There seems to be some misunderstanding of what Pembrokeshire county councillors were tasked with, and decided, during last Thursday’s full council discussion under the agenda item titled: “Pembroke St Mary North Electoral Division – Sections 85 and 86 of the Local Government Act 1972.”
This is due to the desire of officers to keep the discussion from the public domain, an attempt which saw blank pages in the agenda reports prior to the meeting, the contents at that point only available to councillors.
As a result there was a not unreasonable expectation that we were either asked to declare Pembroke St. Mary North vacant, or to determine that it wasn’t.
This wasn’t actually the case, as the council’s legal duty to declare council seats vacant remains delegated to chief executive Ian Westley.
Following external legal advice, Mr. Westley chooses not to declare Pembroke St. Mary North vacant – a decision which councillors at last week’s meeting neither voted to endorse or even ratify, only merely to “note” the “position.”
Early on it emerged that, in a bid to maintain secrecy over the topic, the reports to the meeting wrongly stated that “This item must be taken in private session…” – meaning councillors had no option but to exclude the public and press.
It took Cllr. Mike Stoddart to point out that this was only the monitoring officer Claire Jones’ desire – on which the council was required to make its own determination, with every right to overturn the recommendation.
And by a 26-31 margin, that’s exactly what happened. The public were allowed to see what went on and printouts of the previously secret pages were hurriedly distributed to public gallery attendees.
I have failed to find these now public documents on the council’s website – so I’ve uploaded them to my own:
Please note that these formerly secret pages are no longer, as stated, ‘restricted’ or ‘strictly confidential.’ I will replace it with an unemblazoned copy from committee services if I can get one.
They contain a report by the monitoring officer plus two sets of external legal advice, but not the instructions that sourced them.
In the run-up to the meeting numerous requests from councillors were made for the instructions to no avail – not even an explanation why they were being withheld.
Indeed councillors at the meeting had to prompt and re-prompt for these instructions, which still weren’t available in paper copy but read out.
The background to the whole issue will be familiar to regular council-watchers.
The councillor elected last year to represent Pembroke’s St. Mary North ward – David Boswell – failed to attend any form of council meeting for six months.
Failure to fulfil this minimum attendance requirement, as set out in S. 85 of the Local Government Act 1972, automatically costs a councillor his seat.
Mr. Boswell had previously been advised by the monitoring officer that his attendance at informal seminars meant he was complying with the six-month rule so the chief executive refused to declare the seat vacant.
However it would seem that before my blog showed an interest in the topic Mr. Westley and/or Ms. Jones had reason to doubt the idea that seminars count for councillor attendance purposes.
With incredible haste, and money seemingly no object, an external legal opinion was sourced from a man held to be one of the UK’s authorities on public law.
Having read out the instructions she sent for this first advice, the monitoring officer was unable to say, when asked, the date it was requested.
We also don’t know who commissioned or approved such expenditure, but we do know it was provided on 14th February – the day the six months were up.
We learned that it was sourced following the chief executive’s receipt of correspondence from what the monitoring officer described as “an unsuccessful candidate at the county council election for the relevant electoral division.”
This was regular comment contributor to this website, David Edwards – who stood as a Labour candidate against Mr. Boswell in 2017.
Mr. Edwards had carbon copied me and four others, including three councillors, into his February 13th email to Mr. Westley.
In it he asks what by-election arrangements will be put in place for the ward following Mr. Boswell’s relinquishment of the seat under the six-month rule the following day.
It would seem that there was good reason for there to be a lack of in-house confidence in the concept that members’ seminars qualify as council meetings for attendance purposes, because James Goudie QC, the external barrister, came back with six pages of anything but reassurance.
We can only imagine how many stomachs Goudie’s first effort churned.
It was, as you can now read, weak in defence of the idea that seminars are capable of qualifying for councillor attendance purposes.
This was “a finely balanced question to which there is no authoritative answer” says Goudie who, in the end, claimed to agree with the MO’s concept “on balance, albeit the contrary is arguable.”
With Labour party lawyers in London by now showing a keen interest, Goudie’s first effort served little purpose – practically admitting that such a view was wide open to challenge.
This can’t have come as good news to an already doubting chief executive. From here comes the key part of the whole story.
Making the case
A big effort was made at County Hall to investigate exactly what seminars Boswell had attended, and relative documentation.
It was presumably this hunt that turned up knowledge of two previously unknown events he had attended during the relevant six-month period – neither of which had yet taken place when he was advised by the monitoring officer that seminars count for attendance purposes.
The first of these was a most select gathering to which some cherry-picked county councillors, town councillors, mayors, community councillors and national park folk were invited by a company called Land Use Consultants (LUC.)
Whilst no evidence has been provided to back it up, it is claimed that LUC amounts to a ‘body’ which PCC ‘appointed’ and ‘commissioned’ to ‘advise’ on discharging council functions.
And, by merely turning up to this “meeting of a body” in his capacity as a councillor, without having been appointed by the council to attend, Boswell met the minimum meeting attendance rules in Mr. Goudie’s opinion.
As I pointed out at last week’s meeting: not only was this secret LUC event closed to the public, it wasn’t even open to all councillors.
We had no knowledge of it and would surely have been turned away had we turned up.
I say so according to the invitation which I’ve managed to acquire. It concludes:
“Please be aware that places are limited so we would be grateful to receive your reply by 3rd November to confirm or decline attendance.”
Rather a strange way, you might think, of inviting councillors to what the QC claims was an “important meeting” which, without such attendance, “PCC would have been unrepresented.”
Quite how this gathering could count when Cllr. Boswell had not been appointed to attend remains a side-issue as the QC came up with another even wider reason why this LUC event was good enough to fulfil the six-month rule.
This was the idea that Mr. Boswell’s presence here amounted to “attendance as representative of the authority at a meeting of any body of persons.”
Mr. Goudie says Boswell’s and other councillors’ attendance count because they were there: “as representatives of PCC in their respective official capacities.”
As Mr. Boswell was neither appointed to attend nor represent the authority but merely invited by an external company, this sounds very much like a suggestion a councillor can self-appoint or is automatically deemed to represent his authority if in attendance at “a meeting of any body of persons.”
Unfortunately Mr. Goudie doesn’t dwell on this in his report.
The capacity in which Mr. Boswell attended is not the only controversy here.
As Mr. Goudie isn’t in the habit of attending PCC’s seminars, he could only go on what he was given in his brief.
Which raises interesting questions of the picture that was painted of this event, as well as the second event which was a financial seminar.
At least, that is how it was referred to in correspondence to councillors, including the invitation.
But Mr. Goudie very much liked the idea that it was called a ‘workshop’ in a timetable of events that passed through cabinet, a nuance that seems to be given much weight.
I never imagined this blog would ever have reason to even mention TV funnyman Lenny Henry’s name, let alone his implication with a Pembrokeshire County Council saga.
But if this one has taught us anything, it’s to expect the unexpected, as the comic features prominently on the email-only invitation councillors received to this so-called ‘meeting’ of the council:
It would be interesting to know if this ever made its way to the QC’s desk.
The matter will only ever be settled one way or the other in a courtroom, but I haven’t spoken to any councillor who agrees council seminars or events like the two relied upon constitute council meetings.
And the nature of these two events – the LUC gathering and the Lenny Henry symposium – is not the only area in this affair which has left questions.
As one councillor has already noted to me privately, when the monitoring officer read out the instructions she sent Mr. Goudie for both sets of legal advice, neither mentioned Mr. Boswell’s having been charged with serious child sex offences pending trial.
This is of course totally irrelevant to whether a seat has fallen vacant, which makes it even more strange that Mr. Goudie’s opening paragraph in his first advice is:
“1. I am asked to advise PCC with respect to one of its elected Members, Councillor X. He has been charged with serious sexual offences relating to children. His trial has not yet taken place.”
Readers will know our learnÃ©d friend would be unlikely to include such a statement, not to mention so prominently, without good reason.
A possible clue on this front may have been given by the monitoring officer who, before reading them out stated that the chamber wasn’t about to hear the full instructions:
“I will have to take out a few paragraphs that will lead us into different territory but you can come and see me and I will show you the other paragraphs.”
I’m afraid this only invites more questions as to whether the instructions – the first of which wasn’t even dated – may have been supplemented with telephone calls or other forms of unrecorded supporting information.
Facing the consequences
Whilst Mr. Goudie’s two opinions now form the basis of Mr. Westley’s decision not to declare the seat vacant, if that is an accurate representation of the law then it can’t come without ramifications.
Of course until now such events councillors have attended have been treated as the informal occasions they are.
But in order to get out of a hole the council’s lawyers, with costly outside help, seem to have created a new type of “meeting of the authority” whose status is as clear as mud.
The term “meeting of the authority” is and always has been deemed to be what it purports: meetings of full council, formal in nature and according with all relevant local government meeting rules.
These include that councillors be formally summoned to attend, minutes be taken and free public and press access – which don’t apply to seminars.
It will be interesting to see which efforts, if any, will now be made to go along with the new pretence that informal chats behind closed doors over biscuits and coffee – sometimes sandwiches! – amount to the hitherto formal full council meetings.
We came no closer to finding out what changes might arise from this development in response to my question to council leader David Simpson.
I had asked how seminars were legitimate and able to avoid council meeting rules. The response referred at length to the legal legitimacy of ‘working parties’ – not seminars as I asked.
My supplementary question asked whether such events are to be formalised in the council’s constitution and if the public and press will now be welcome to attend, to which the leader said that there needs to be “some clarity” and that we might “look at our constitution.”
The bare minimum
The next general council election is scheduled for May 2022.
Over those fifty months left during this term each councillor is eligible for over Â£55k in basic allowances, for which we’re told we have to do no more than show our faces at secret non-decision-making gatherings we weren’t appointed to by the council, a minimum of biannually.
But an even starker ramification of Mr. Goudie’s advice seems to be that councillors can appoint themselves to represent, or assume to represent, the council at any “meeting of any body of persons.”
This would undermine the purpose of a minimum attendance rule – which applies UK-wide – rendering it practically impossible for council officers, fellow councillors, constituents or the media to ever question if councillors have fulfilled the very least of their public duties.
Clearly this is a tangled web which, if left unchallenged, seriously undermines the legislation.
Which makes it all the more surprising that there is absolutely not a sniff of case law on the topic.
No court case has ever seen a council challenged by an ex-councillor whose seat was declared vacant, or a ward resident who believes it should have been.
Notwithstanding the high cost and burden in taking a judicial review, some say it suggests this law from 1972, whilst old, has adequately served its purpose.
That, over the past forty-six years, its intent has been clear and its interpretation has never been an issue.
But when Pembrokeshire’s finest need to get themselves out of a hole, it seems all bets are off.
And that was where I was going to end things – that was until, just before publication, I received an email from Tenby councillor Michael Williams.
On the 26th February he had emailed the council’s head of legal services, asking:
Has Cllr Boswell been advised by PCC at any time not to attend council meetings until the ongoing legal process has been completed?
The ‘ongoing legal process’ refers to Mr. Boswell’s pending criminal trial on child sex offences he denies.
The query was passed to the monitoring officer for response, who, on 15th March apologised for her delay in replying which arose because as she puts it: “events then rather took over.”
Cllr. Williams is told:
The Councillor in question is legally represented and was aware that he could not be prevented from participating in any Council activity.
He did however agree to curtail certain Council activities pending trial in light of safeguarding measures and not to attend certain meetings.
The unique and invidious and [sic.] position the Council finds itself in was referenced in Appendix 1 to the Report to Council as follows:
“[The Council] has been required to balance the democratic rights and the will of the electorate as expressed in May 2017 with its paramount safeguarding role which has been carefully managed in a challenging environment, whilst also seeking to preserve the Council’s reputation”.
That Mr. Boswell “agreed to curtail certain Council activities” and “agreed […] not to attend certain meetings” more than tacitly suggests he was asked by County Hall if he would avoid showing up at webcasted meetings.
The council has no right to influence such attendance of a man who is presumed innocent unless proven guilty, and passing the suggestion off as some sort of ‘safeguarding’ concern sounds like it comes straight from the County Hall playbook.
Until now the council’s motivations for expending such efforts and cash on sourcing external help was thought by many to be in defence of the questionable advice Mr. Boswell was given that his attendance at seminars counts for attendance purposes.
But this new information suggests Mr. Boswell avoided council meetings during the six-month period at County Hall’s request.
No summary of last week’s meeting would be complete without discussing some of the claims made within the monitoring officer’s report. Readers can read it for themselves – but the highlights include:
The implication that S. 85 of the 1972 act is a matter for local discretion because another Welsh council has come up with its own internal interpretation of the six month rule. We aren’t told where it is, only that at this authority a behind-closed-doors: “working group, task and finish group or a member workshop” is “deemed sufficient to satisfy the attendance requirements.” Of course, this has no legal authority whatsoever.
That the 1972 legislation “has not kept pace” with current ways of council operations so that: “Councillors might therefore wish to give a broad interpretation to the 6 month rule to allow more scope for Councillors to satisfy their obligations.”
The inscrutable statement that: “at the Corporate Governance Committee on 2nd February 2018 it was argued strongly that Councillors were under no duty to serve on Overview and Scrutiny Committees.”
And the bizarre suggestion that a councillor’s election date has any bearing on the fulfilment of attendance requirements: “the courts may be reluctant to interfere in democratic process, particularly where such interference may undermine the will of the electorate as expressed as recently as May 2017.”