"Nobody has the right to say what they like about this council"

The subject of the libel case between Jacqui Thompson and Mark James, the chief executive of Carmarthenshire County Council, came up at yesterday's meeting of the council's Executive Board.

Bearing in mind that these meetings are not recorded, what we have to go on are two reports in the South Wales Guardian (here) and the Carmarthen Journal (here). It is reasonable to assume that they are accurate, although there has been at least one incident in the last few years when the chief executive took exception to reporting of statements he made about abuse of a young woman with learning difficulties at a council-run day centre.

Several things stand out from these accounts. First are quotes attributed to council leader Kevin Madge:

"Nobody has a right to criticise the authority without justified reasons", and "Nobody has the right to say what they like about the council" (Carmarthen Journal) and, "Nobody has the right to say what they like about this council, its officers and its members" (South Wales Guardian).

If Kev were right, that would mean an end to free speech across the country. Nobody would be able to voice an opinion about a council or any other branch of government without being able to prove that what they were saying was right or reasonable (the dictionary definition of justify).

In fact Kevin Madge himself has fallen foul of this requirement on more than one occasion. Last year, for example, he was told off by the Public Services Ombudsman for saying that Jonathan Edwards MP and Rhodri Glyn Thomas AM had deliberately sabotaged a development at Cross Hands.

Kevin Madge is no Barack Obama when it comes to expressing himself, but there is no doubt that yesterday's meeting was carefully orchestrated and rehearsed, and so we have to take his words at face value. What they do is expose the danger to free speech built into the council's notorious libel indemnity clause in its constitution.

Councils and other branches of government cannot sue for libel, and we can say what we like about them without worrying that David Cameron, George Osborne or Carwyn Jones will set their lawyers on us, subject to certain restrictions such as inciting violence or religious hatred.

The problem with what Carmarthenshire has done is that it blurs the lines between individuals (officers and members) and the institution by enabling officers and members to bring actions for defamation using council funds.

Power in Carmarthenshire is concentrated in just a very few hands, and the chief executive has frequently shown that he is prepared to stray into territory normally occupied by politicians. Thanks to the libel indemnity clause, criticism of the actions of the council can now land you in court. Presumably that is what Kevin Madge meant when he said that nobody has the right to say what they like about the council.

It is worth remembering that Jacqui Thompson's blog contains hundreds of articles, running to hundreds of thousands of words. Mark James's counterclaim alleged defamation in the case of just five articles, and the judge threw out two of those claims. Where he did find that Jacqui Thompson had libelled the chief executive, the articles concerned the libel indemnity clause itself (which she had referred to as a 'slush fund'), and a joke about the chief executive in his role as returning officer (Pinocchio).

So when Kevin Madge speaks as council leader in a council meeting and talks about the case using the word "we" ("we tried for an out of court settlement", etc.), it is clear that the action was Carmarthenshire County Council v. Jacqui Thompson.

Jacqui Thompson has commented on other aspects of the reports of yesterday's meeting on her blog, but by making claims about out of court settlements, Kevin Madge appears to have broken a confidentiality clause which Mr James's legal team had insisted on to prevent either side from disclosing discussions which took place in the run up to the trial.

Jacqui Thompson is adamant that offers made by her legal team to settle out of court were rejected by Mr James and his counsel, while counter offers made by Mr James's representatives were couched in terms which made them unacceptable to Jacqui Thompson's lawyers.

From the moment that Mr James wrote to the Madaxeman blog it seems that the council was determined to go to court.

So when Kevin Madge says that he wants all the information to come out, Jacqui Thompson has made it clear that she will be very happy to oblige.

And finally, readers may be wondering where the chief executive was while all this was going on. Apparently he left the meeting for the duration of the "discussion", something he failed to do when he was originally awarded the indemnity in a meeting closed to public and press.