Thursday 25 October 2012

A Council through the Looking Glass

“When I use a word, it means just what I choose it to mean—neither more, nor less.” 
[Lewis Carroll - Through the Looking-Glass, and What Alice Found There]

The world of Carmarthenshire County Council is a strange place where nothing is quite as it seems. What most of us would call black in the real world is, by order, declared to be white, and vice versa.

So it is that the council's view of Carmarthenshire is of a place where we are all healthier, happier, richer, better educated and better cared for than ever before. And things will get even better. 

 "The rule is, jam to-morrow and jam yesterday — but never jam to-day." [ibid]

That was the essence of the reports which were presented to councillors at the most recent council meeting, and anyone who dared say otherwise was ruled to be deviating from the agenda.

The agenda is set by the Chief Executive, or as Lewis Carroll explained,

"The time has come", the Walrus said,
"To talk of many things:
Of shoes — and ships — and sealing wax —
Of cabbages — and Kings —
And why the Sea is boiling hot —
And whether pigs have wings."

Pigs definitely do have wings in Carmarthenshire, and if the Chief Executive puts cabbages on the agenda, then that is what will be discussed. Other types of brassica, such as cauliflower or purple sprouting broccoli, are out of order, and cabbage root fly simply doesn't exist. Cllr Caiach, please take note.

Unfortunately a persistent minority of councillors kept trying to talk about things which the Chief Executive did not want to hear at the last council meeting, and so now, as Caebrwyn reports, all 74 councillors in Carmarthenshire have received a strangely worded e-mail purportedly written by the lovely Siân Thomas, who this year adorns the Chair of Council.

The legalistic tone of this message and the highly constipated style in which it is written lead Cneifiwr to point the finger of suspicion at a rather less amusing pair of authors. The Chair, a witty, erudite and perfectly formed person, would never have turned the noun "agenda" into a verb, to start with. But the official fiction is that this dreary document is the work of the Chair.

The message refers back to the attempts by various councillors, most notably Darren Price, to raise the subject of the Madge-James-Sainsbury's press release.

When he tried to raise the subject under the heading of "making better use of council resources", he was told that misuse of council resources was not on the agenda, and so could not be discussed.

When he tried later to raise the issue as an urgent item, the Chief Executive and Monitoring Officer (aka the Acting Head of Law) searched their constitution in vain for a clause that would prevent this. When they couldn't find one, they invented a new rule, and when Cllr Price pointed out that there was no such rule, they told the Chair to call the meeting to a close.

The Chief Executive and Monitoring Officer came up with the rather novel argument that by discussing matters which were not exactly as spelled out on the agenda and trying to table emergency motions, councillors ran the risk of upsetting the public. They apparently believe that thousands of the county's residents scour the council's website each month and read the published meeting agendas before deciding whether or not to attend. The published agenda is therefore a bit like those tablets of stone handed down to Moses.

In reality, only about half a dozen members of the public ever turn up, and they are nearly always the same lost souls. Unusually, there were about 10 people in the gallery for the October meeting, and eight of those were very definitely hoping that the scandalous misuse of the press office would be discussed.

For some odd reason, the Chair's missive drops this argument about keeping the public informed in favour of a much more intimidating claim that by allowing emergency motions or changes in the published agenda, the council could be opening itself up to the threat of court action in a judicial review.

Quite how many actual cases of judicial review there have been anywhere in the British Isles brought by aggrieved individuals when a council meeting agenda was modified we do not know. A fair guess would be none.

At the October meeting the only potential objectors to an emergency notion were members of the ruling Labour/Independent coalition and senior officers (these days pretty much indistinguishable) on the one hand, and J Sainsbury plc on the other. 

Given that it is unlikely, even in litigious Carmarthenshire, that the council would take itself to court, we are left with Sainsbury's, and we can safely assume that Sainsbury's would be very unlikely to want to expose itself to the negative PR involved or upset its fan base in County Hall.

"Contrariwise," continued Tweedledee, "if it was so, it might be; and if it were so, it would be; but as it isn't, it ain't. That's logic."

Reading through the note allegedly written by the Chair, a great deal of hot air is expended on explaining why emergency items will be as rare, if not rarer than hens' teeth, and even less desirable. Nevertheless, there seems to have been one instance of an emergency item being raised at a council meeting this year which was not on the published agenda.

Can you guess what that was?

At a meeting of the Executive Board held on 23 January this year, a mysterious item crops up in the minutes which was not on the published agenda. It related to a decision to fund the Chief Executive's libel cases against blogger Jacqui Thompson, although the minutes only say "an officer".

Jacqui issued proceedings for libel against the Chief Executive in the week leading up to 15 November 2011, but the Executive Board met on 28 November, 12 December and 4 January with no mention of a libel case. Given that it had been known about for more than five weeks, you have to wonder why the indemnity had to be raised as an urgent item without prior notice on 23 January.

Let's hope that that doesn't leave the council at risk of a judicial review.

"It's too late to correct it," said the Red Queen: "when you've once said a thing, that fixes it, and you must take the consequences." [ibid]

And here, shamelessly cut and pasted from Caebrwyn's website is the constipated message:

Note to all Councillors from Cllr. Sian E. Thomas, Chair Carmarthenshire County Council in Relation to “Urgent Items”.
“Following member interventions regarding discourtesy shown to the role of Chair at the County Council meeting of the 10th October 2012 I write to clarify my expectation in respect of any requests by members to have non-agenda’d items considered at meetings by reason of urgency.
The law provides that an item of business may not be considered at a meeting unless:
a)      a copy of the agenda, including the item, is open to inspection by the public for at least 3 clear days before the meeting; OR
b)      by reason of special circumstances, which shall be specified in the minutes, the Chair is of the opinion that the item should be considered at the meeting as a matter of urgency.
Considering a non-agenda’d matter at a meeting is susceptible to challenge in the Courts by means of Judicial Review. Therefore, the abiding expectation must be that items should be agenda’d.  Agenda items normally flow naturally from the cycle of meetings but any items outside of that process may be suggested to the Chief Executive, who is the Proper Officer charged with setting the agendas for meetings.
Where a member considers that a matter which has not been agenda’d should be considered urgently at a meeting the member should consult me or the Chief Executive (or the Chair of the relevant meeting) in advance of the meeting on his or her item and state the reasons for the urgency of the item. “Urgent” is commonly understood as being something “compelling or requiring immediate attention”. In the context of Council business matters may be important but not necessarily urgent in that they can wait until the next meeting. Members will therefore need to be able to demonstrate to the Chair why an item must be considered at a meeting outside of the usual public notice provisions, including explaining what the consequences of not hearing an item at the meeting could be.
The responsibility for justifying the special circumstances for allowing an item to be discussed without public notice of it having been given, and of recording that special circumstance in the minutes, is the Chair’s and because of the potential for legal challenge it is imperative that the Chair be given the courtesy of being consulted in advance of the meeting in order that he or she can consider the request, and take advice upon it if necessary. Advice may need to be taken on whether the reasons given in support of urgency are likely to be justifiable in law, whether the subject matter can be heard in an open meeting or should be held in camera, whether the item should be taken at the end of the other items of business or should be accelerated up the agenda because of its urgency and the actions which may need to be taken in consequence of any likely resolutions made on it, and indeed on whether the nature of the item is one which legally falls within the remit of the meeting in question, bearing in mind the difference in law between Council and executive functions.
It is difficult to specify a time period for consulting the Chair because urgent items, by their very nature, are matters which arise at short notice. However, I consider that there will be very few occasions where a member is unable to consult the Chair at least 1 or 2 days before a meeting. On occasions when a matter only becomes known on the day of a meeting the Chair, or Chief Executive, must be consulted before the commencement of the meeting.
The Chair’s decision on whether to allow an item on grounds of urgency or not is final and should not become a matter of debate across the Chamber.
Cllr. Sian E Thomas
Chair of Council 


a2 said...

is this the same sian thomas plaid cymru that was politicozing windturbines at a protest meeting?

it's esy to 'forget' sometimes and overlook something but that is something baebwryn's website has got them by the b@lls - the urgency of mark james of defending himself. but ivor jackson was on the chair then, even though the principle is the same under emergency.

there is no excuse this time and if i was a plaid councillor, i'd be questioning the role of a fellow plaid member if they were activively participating in blocking a motion. Would cllr thomas have participated in forwarding the motion if she was not in the chair?
Unless cllr thomas saw something the other councillors didn't (except the muck up of not dating it), then maybe the other councillor's need to read up.

Or was it a case of depending how urgent is urgent> if mark james situation was marked as very urgent and the sainsbury situation was marked as mildly urgent (when most people would have thought it was priority but could have become politicized even further, even if the mark james camp had already politicized it.

if there is no such rule, how come the topman made up the rule. some solicitor he must be then if he knows there's no such rule and tried his luck hoping the bait would have been taken.

Maybe the chief exec is not fit for purpose. If a head of law resorts to ridicule, then he must go. malling up a rule which is not in eistence is manipulation. Luckily cllr price mentioned it or the whole chamber AND the public would have taken that as truth

Jon said...

Once again we seem to have the tail wagging the dog – officers hell-bent on fettering the role of elected members and the discretion of the Chair. The law, as succinctly described at the beginning of the e-mail, allows the Chair to decide that a matter may be considered as a matter of urgency if there are special circumstances, which have to be recorded. There is a huge scope for discretion here, and a decision to hear such a matter could only be challenged in law if that discretion was exercised so unreasonably that no reasonable person could do so, or took into account matters which should not have been, or excluded matters which should have been. It’s not a difficult decision.

In this case some members wished to air, amongst other things, what they considered to be a politically motivated, incorrect and potentially libellous statement from the Council’s PR office, which could lead the Council to embarrassment, ridicule, a finding of maladministration, legal challenge and the subsequent payment of damages and costs. The Council might think it had experienced enough of these politically and financially damaging outcomes in the past and urgent discussion might be warranted.

No court would be likely to find it unreasonable that a Chair of the Council would wish to deal with such an allegation sooner rather than later, and given the infrequency of Council meetings, that it was urgent in the special circumstances. When weighing up whose interests might be prejudiced by failing to give notice of the discussion of such a matter, the Chair could reasonably find that the balance of arguments fell decidedly in favour of allowing such a motion, and I suggest that it would legally impeachable.

Out of courtesy, it might be prudent to give the Chair notice of the intention to raise an urgent matter, but the rest of the e-mail is solely designed to frighten members and the Chair into never raising urgent matters that officers or the Executive don’t wish to have raised.

When foxes are in charge of the henhouse, would you look to a fox to advise you as to the best way to open it up? I think not.

Jon said...

I meant, of course, unimpeachable!

Anonymous said...

I'm a councillor an I haven't received this email...

Anonymous said...

Curiouser and curiouser ......Off with their heads!

Anonymous said...

Oligarchy Init

Anonymous said...

I have to commend you on this post. We are lucky to have such an articulate blogger.
The 'James Journal'take note.
Unfortunaytelyt we do not have an articulate chair, if that's who wrote the e.mail.