Bates Wells and Proops KC on council employee indemnities

According to Grant Thornton, accountants, London legal firm, Bates Wells, has backed the Opinion of Anya Proops KC that councils may use taxpayers’ money to fund private litigation by employees - although, seemingly, on different grounds

Background

Sandwell Metropolitan Borough Council (SMBC) - currently in Government special measures due to widespread governance deficiencies -  informed the Information Rights Tribunal that Anya Proops QC (now KC) advised in 2018 that it could use taxpayers’ funds to pay the legal costs of employees acting outside the course of their employment pursuant to Employers’ Liability principles. The Tribunal was told that Proops opined that councils owed their employees a duty of care even when on a frolic of their own. The writer dealt with Employers’ Liability cases for 18 years and this seems an entirely novel, and bizarre, restatement of the law. SMBC itself has repeatedly refused to release the details of Proop’s extraordinary Opinion or the case law she relied upon for this proposition.

SMBC duly relied upon Proop’s 2018 Opinion three years later as authority to fund private litigation by its Director of Public Health, Lisa McNally, against a journalist arising from comments she made via her personal Twitter account. 

During the short course of his litigation Grant Thornton, SMBC’s controversial auditor Mark Stocks was informed that the purported indemnity of McNally was unlawful, but he declined to intervene. The case was struck out at the earliest opportunity at a cost of taxpayers of £100,000. Had Stocks acted appropriately some of this loss could have been abated.

After the litigation commenced SMBC stuck to the argument which they say Proops KC had advanced that funding was lawful, but when referred to the wording of The Local Government (Indemnities for Members and Officers) Order 2004 (the 2004 Order) claimed that this also permitted them to fund the personal litigation of an employee.

(See earlier posts although please note that they were written with the author’s state of knowledge at the time of publication:

https://rottencouncils.blogspot.com/2023/04/anya-proops-kc-extends-scope-of-local.html

https://rottencouncils.blogspot.com/2023/07/proops-kc-on-local-authority-employers.html

Of course, if (and it is a very big "if") Proops is right then one wonders why the 2004 Order was necessary at all, at least in respect of employees, and why it specifically refers to employees acting in qua employees?)

Bates Wells

For reasons that can only be guessed at, long after the McNally case had spectacularly failed, Stocks decided that Grant Thornton should belatedly seek its own legal advice on the legality of funding McNally, and then stated in a Report to SMBC that Bates Wells has provided them with a legal opinion that the 2004 Order did indeed permit taxpayer-funding of private litigation by employees, as Proops had also opined although, apparently, on different grounds.

Grant Thornton has also refused point blank to disclose their instructions to Bates Wells, the advice provided or the case law Bates Wells relied on. Incredibly, SMBC has “accepted” the Grant Thornton report without  actually seeing the Bates Wells advice itself!

It is presently unclear whether Grant Thornton has charged the taxpayer for the Bates Wells “theoretical” advice, but early evidence suggests that it has.

Comment

The Proops KC “duty of care” Opinion seems wholly wrong and fantastical. It was fully supported, however, by no less than four Solicitors at SMBC - Surjit Tour (the Monitoring Officer currently on his way out), Maria Price (now head of legal and MO at Devon Council), Julia Lynch (now at the ICO), and Vanessa Maher-Smith (who remains at SMBC).

Such legal comment as exists in relation to the 2004 Order seems to clearly point to the unlawfulness of such private funding, as does the wording of the Order itself despite what Bates Wells allegedly say. It seems that the appropriate action would be for legislators to revisit the wording of the Order and make their intentions crystal clear.

rottencouncil@gmail.com

Ian Crow Multimedia Limited

LGA "Guidance" abused to protect errant councillors

The Local Government Association (LGA) is an unaccountable “guild” involved in the administration of local government - yet it is heavily subsidised by the taxpayer. Its diktats are proving a boon for corrupt councils such as Labour’s Sandwell MBC in the West Midlands (currently in Government special measures).

Sandwell has a long history of deliberate concealment of information to hide its corrupt practices - including actively lying to the Information Commissioner and the Information Rights Tribunal. Solicitors at the Authority routinely delete email files and other documentation and then tell the ICO they are having difficulty “interrogating” the computer system to locate deleted files. The use of WhatsApp and other messaging services are extensively used by the paid service to conceal misconduct.

Two recent Chief Executives in Sandwell, Jan Britton and David Stevens, were forced out in disgrace although surely the UK’s most controversial Monitoring Officer (MO), Surjit Tour, currently remains in post despite pleas to Michael Gove, the Secretary of State for Levelling-Up, and the Commissioners for his summary dismissal. Some of Tour’s handiwork can be seen in the Crow Multimedia Blog “As The Crow Flies” notably the ongoing post, “Monitoring the Monitoring Officer - a case study” at 

https://crowmultimedia.blogspot.com/2021/12/monitoring-monitoring-officer-case-study.html

and also in posts in this blog concerning his unlawful funding of an employee’s High Court action in respect of her personal Twitter account (which failed and cost the taxpayer £100,000).

The LGA “6-month” guidance for standards complaints

On 21st September, 2021 The LGA published guidance notes to “assist” Monitoring Officers and others dealing with Standards Complaints against councillors:

https://www.local.gov.uk/publications/guidance-member-model-code-conduct-complaints-handling

This “assistance” consisted of guidance to Monitoring Officers to “knock-back” complaints made later than six months from the incident complained of. It is very important to note that the LGA itself states that this helpful steer to bent councillors and Monitoring Officers is for guidance only and NOT a rule of law. Further, the MO should bear in mind any reasons why the complaint was “late” (by the LGA’s own definition) and specifically mentions the situation where the complainant has only recently been made aware of past matters of concern.

Tour’s interpretation of the “6-month” guidance

Sandwell Labour Councillors Peter and Pam Hughes (husband and wife) became friendly with a property developer. Peter Hughes generally supported his proposed developments in his ward. He also was aware that planning permission had been granted to the developer to convert a large former industrial building into a residential care home and that soon after receiving planning permission this was unilaterally converted into flats for property rental, contrary to the original permission. 

There is an ongoing investigation into the sale by the Council of a plot of land to the developer which Hughes is said to have supported. Peter Hughes certainly supported the erection of five bungalows on the plot (against overwhelming local opposition) and the planning permission was approved with Pam Hughes being on the planning committee (as she also was when the Committee approved amendments to the plans). Pam Hughes made no declarations of interest in respect of her and her husband’s lengthy dealings with the developer. She subsequently stood down from the Council so that, unfortunately, no standards complaint can be made against her.

As soon as the bungalows were built the Hughes’s moved in to one (on a rental basis). 

At this time Tour was using s.32 Localism Act 2011 to unlawfully allow a host of the Labour councillors to conceal their home addresses and details of other property ownership from the public. Tour allowed them to redact this information in their Register of Interest entries on the basis of fallacious claims by the Councillors that they feared violence or intimidation - and he had presented this option to them as a method to avoid unfortunate disclosures.

Hughes was under no risk of violence etc., yet Tour permitted him to conceal his move to the new bungalow on the Register of Interests via s.32. As the property was rented it remained on the developer’s freehold entry for the site at HM Land Registry (which also included adjoining land) so that there was no indication of the Hughes’s occupancy of the brand-new property.

In late April, 2022 a local journalist became aware that Hughes was hiding his address and wrote to him. Hughes failed to reply and the journalist placed the information in the public domain pointing out that Hughes has no legal basis for s.32 protection. At this time the journalist was unaware that the Hughes’s had actually moved address. Following a tip-off in late June,  the journalist attended the new bungalow on 1st July, 2022 and established that the Hughes’s were in residence. He then contacted the property developer who responded that the Hughes’s were renting the property and he was their landlord. The developer said he would respond to other queries when he returned from abroad but never did.

On 8th August, 2022 Hughes - having been publicly exposed - amended his Register of Interests to show his residence at the new bungalow (further evidence, if any was needed, that he was not, and never had been, in fear of violence/intimidation). When, in December, it became clear to the journalist that the developer was unlikely to respond further to him (despite assurances to the contrary) he submitted a standards complaint regarding, inter alia, (a) Hughes’s misuse of s. 32 to conceal his address, and (b) his failure to disclose his involvement with the developer during planning matters including relating to the bungalow he moved into. (By now, and as above, Pam Hughes was immune from a formal Complaint having left the Council.)

Surjit Tour (and Deputy Monitoring Officer Charmain Oliver) dismissed two of the complaints on the basis they were made over 6 months after the matter complained of: “Allegation 1 [and 2] is outside of the six month’s timescale to bring a complaint and should be progressed no further.” Incredibly, the (unidentified)  Independent Person agreed with this absurd decision.

This is absolutely wrong. The journalist could not have known - and didn’t know - until the end of June that Hughes had moved into the bungalow. He made timely investigation including visiting the property on 1st July, 2022. The Complaint was made on 14th December, 2022 within 6 months of that “date of knowledge”. Further, Hughes and Tour had very deliberately concealed the fact the Hughes’s had moved into the bungalow until 8th August, 2022 when Hughes amended his Register of Interests so that, arguably, the six month period ran from that date. And the journalist had also made timely investigations with the property developer prior to making the complaint. Tour was part of the deliberate concealment of the facts until 8th August and the Complaint was made four and a half months thereafter.

This has all been totally disregarded by Tour, Oliver and the Independent Person and, in any event, their so-called “timescale” is, as above, for guidance and not a rule of law. Did the LGA imagine that corrupt councils would twist their guidance in this way? Perhaps they will now amend the guidance notes appropriately or (although this is improbable) the Government will step in to amend the legal framework surrounding the misuse of s.32 and the appropriate limitation periods for standards complaints. Clearly the Local Government Ombudsman should also be aware that corrupt councils are attempting to “game” the rules.

rottencouncils@gmail.com

Ian Crow Multimedia Ltd