Tony Blair thought bringing in the Freedom of Information Act 2000 (FOIA) was one of his greatest mistakes (presumably ignoring that unfortunate business in Iraq). But this is an overblown reaction since the Act is actually toothless. In addition to gross delay, national and local government have a panoply of powers to avoid disclosure of their secrets. Some, like Sandwell MBC, simply lie to the Information Commissioner (IC) and the Information Rights Tribunal, and do so with total impunity (posts passim and read https://thesandwellskidder.blogspot.com/).
Sandwell feature in the case reported below. Under former (Labour) Leaders Darren Cooper and Steve Eling (an employee of Rotherham Council), together with Chief Executives Jan Britton and David Stevens, corruption was rampant. The wild west days of the Cooper regime (when Eling was one of two Deputy Leaders) gave way to the institutionalisation of wrongdoing under the later disgraced Eling himself. Later, the last Government had no option but to appoint Commissioners to intervene for two years (at enormous cost to taxpayers) due to serious governance issues.
Eling and Britton brought back into the Council a highly controversial lawyer, Surjit Tour, as Monitoring Officer. Sandwell set about subverting the system for dealing with complaints into alleged breaches of standards. Despite episodes of gross misconduct by councillors, Tour was able to bat away the vast majority of complaints against them - mostly secretly. You can read about some of his antics here in "Monitoring the Monitoring Officer - A Case Study:
https://www.blogger.com/u/8/blog/post/edit/5210725868751736806/800345304638203985
Tour has now left Sandwell Council.
Incidentally, campaigners in Bristol faced a similar problem and eventually discovered that the Monitoring Officer had not upheld a single complaint for six years! The Council claimed it would review its complaints procedure.
It should have been obvious to all that the high number of standards cases at Sandwell was a symptom of a deeper malaise. This is not looking back with the benefit of hindsight since these issues were raised contemporaneously by a local journalist and others, but duly ignored (including from 2019 by a nascent Tory opposition - which has now been virtually wiped-out). Indeed the number of cases not only reflected the corruption of the Eling/Britton era but also infighting within the dominant Labour Group. The ruling junta split into warring factions, and, incredibly, members of the same party started using the standards complaints system to attack each other.
Sandwell is a Labour fief - at one time the Party held 73 of the 74 seats. There was shock at the strong Tory showing at the 2019 General Election, and even more so when the Conservatives later won some Council seats. At this point, some pro-Labour employees tried to curry favour with their political masters by bringing standards complaints against Conservative Councillors!
Each standards complaint is given a computerised code number and this number is used to keep the matter innominate when reported to the Standards Committee (where the public is routinely excluded for most of the meetings). Tour was absolutely determined to keep the cases secret except in a couple of high-profile cases where Eling and Britton specifically wanted the information made public.
A local journalist noted that Waltham Forest Council had replied to a FOIA request happily stating in succinct format: the name of the allegedly errant councillor, the date of the complaint, the allegation in general terms (e.g. "Failed to declare interests"), the name of the investigator and, finally, the outcome in the simple form of "upheld" or "not upheld". He duly made a FOIA request to Sandwell for the identical information from 2017 to 2021 (although the request for the identity of the investigator was eventually dropped before the eventual Tribunal hearing on the basis that whichever puppet was named on the papers, s/he was dancing to Tour's tune). [For the sake of completeness, the Waltham Forest response was not quite complete as it said it had "lost" some of the records entirely!]
Inevitably, Sandwell chose to lie as its default position, and refused to answer using the claim that the information was readily accessible elsewhere when, of course, it was not. Upon Internal Review the failing Council changed tack and claimed that although it used a computerised system to record each and every complaint it could not set out the specific information requested (as above) without searching electronic records, emails AND paper documents. Accordingly, Tour pleaded s.12 FOIA (cost of compliance) to keep the information secret. He claimed that there were an astonishing 74 cases in the period covered and that it would take more than 18 hours to collate the information (the effective limit allowed by the Act).
It is another weakness of the FOIA that s.12 is an all or nothing provision. If the Council thinks it will take more than 18 hours to collate the reply it does not have to reply at all, but simply claims the protection of the section. It does not have to actually spend 18 hours on the Request and then stop. It also does not have to make partial disclosure of anything it has actually collated since that might - allegedly - provide a misleading picture. Thus Sandwell claimed that no less than three staff had already spent an astonishing 25 hours trying to collate this information (which was all on the Monitoring Officer's computer if anyone cared to look) and had got nowhere near dealing with all the cases. What this says about the competence of the staff allegedly involved in this task is a matter of conjecture, and it is not by any means the first time the legal department has claimed that the Council's computer system is inadequate for many simple tasks (post passim concerning the alleged defects in systems bought with substantial taxpayers' funds from CIVICA and iCasework i.e. defects alleged by Sandwell solicitors themselves rather than the author).
The Council put no witness statement or live witness before the Tribunal but, notwithstanding a well-documented history of its staff lying to the IC AND to the Tribunal, Sandwell was simply believed. The whole of the information requested for this period is to remain secret.
Two other points arise from this. Again, notwithstanding Sandwell's blatant past dishonesty, the IC also believed Sandwell, and then it (rather than the Council) applied to strike the Tribunal appeal out at an early stage. In particular it said the Waltham Forest case was different since it MIGHT have different ways of recording its cases and the FOI was for a two year period involving just 24 cases as opposed to Sandwell's 74 in the 2017 to 2021 period. The Tribunal agreed with the IC that 24 cases as opposed to 74 cases was a material point of difference, but the obvious outcome of this is that the worse a council's behaviour is, the more likely it will be allowed to keep its doings secret. Since there is no "public interest test" when the s. 12 exemption applies, councils with an awful record can claim the costs exemption whereas ones with low numbers of standards cases will be forced to cough up the information. Was that really what the Act intended?
There is also a curious part of the Tribunal's decision:
"The Council did suggest during the hearing that their in-house solicitor could answer factual questions to the Tribunal, but the Applicant objected to this suggestion and the panel decided this was not necessary in order to reach a fair decision."
In fact, Sandwell's Counsel offered the Solicitor up but only on the basis that HE wouldn't allow the Applicant to cross examine her. Whilst the reader may be surprised that (a) solicitors are now so pusillanimous they can dish it out but can't face questioning themselves, and (b) a Council's barrister can dictate the terms in which evidence is presented to a Tribunal in this high-handed way. The case report does not record the fact that the Applicant specifically objected to one-sided evidence being put to the Tribunal in this extraordinary way and that he considered it wholly inappropriate not to be able to cross-examine a witness.
The full case report can be read here:
https://caselaw.nationalarchives.gov.uk/ukftt/grc/2024/583?query=saunders
rottencouncils@gmail.com
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