The Information Rights Tribunal [sic] has set 11th March, 2025 at 2pm for the hearing of a case concerning the Local Government Association's attempt to conceal details of its involvement in disciplinary and recruitment matters at Sandwell Council.
The LGA is a sort of medieval guild purporting to "support, promote and improve local government." As a fully fledged part of the British Establishment it is a largely unaccountable body despite being in receipt of considerable largesse from the taxpayer.
The LGA chose to involve itself in (a) the dismissal of Sandwell's Chief Executive, David Stevens; (b) the recruitment of Kim Bromley-Derry as his interim replacement; and (c) the appointment of Keir Starmer crony, Imogen Walker (the partner of Morgan McSweeney and now a Labour MP), as Interim Head of the Leader's Office. Following a Freedom of Information Request from a local journalist the LGA (backed to the hilt by the Information Commissioner) has released scant documentation in respect of these issues. In particular, the LGA is fighting to keep secret the identity of an individual at Hertfordshire Council who mysteriously used his/her official Council email account to involve him/herself in Sandwell's affairs.
On 11th March the Tribunal will decide whether to allow the Establishment to continue to hide its secrets or order it to make fuller disclosure of its involvement in this highly controversial affair.
According to AI the Independent Person is: an impartial individual appointed by local government to provide advice on allegations of misconduct against elected members. The role of the Independent Person is to help ensure that the public can trust how the council handles allegations."
Each Council appoints one or more Independent Persons, and therein lies an immediate flaw in the system.
How does this work in practice? Here are two examples from Sandwell Council:
1. Select cronies as "Independent Persons"
Mr John Tew was personally involved at the highest level in secret negotiations involving the largely free transfer of a £70m iconic building - The Public in West Bromwich - to Sandwell College just after the taxpayer had built a brand-new £70m building for it. Despite his dealings in this massive multi-million pound scandal Labour appointed Tew as the Council's "Independent Person". [It has to be said though that the hapless local Tory MP's and Councillors - before most of them were consigned to the dustbin of history - backed this grotesque scam.]
2. Richard Phillips - a case study - Cllr Melia standards hearing & complaint
Background
Cllr Melia assaulted journalist, Julian Saunders, before a Council meeting:
Melia rushed straight to Sandwell's (then) highly controversial Monitoring Officer, Surjit Tour, for protection and a written apology was prepared to be sent to Saunders. It was never sent - presumably because Tour became aware that Saunders had made a Police complaint and this would have been an immediate admission of guilt. However, Tour ensured that a copy of the draft apology dated three days after the assault was included in the bundle of evidence to be put before the Ethical Standards Committee as if it HAD been sent.
It stands to reason that if Saunders had ever received the apology he would (a) immediately published it on the Sandwell Skidder blog, and (b) passed it to West Midlands Police who were already investigating the assault. Further, when Melia attended the Magistrates's Court to plead guilty, his solicitor set out a remarkable piece of fiction in mitigation, but did not mention the alleged "apology". Clearly any Solicitor worth their salt would have mentioned that Melia had rushed to send a written apology to his victim, but this was not the case here.
Melia was prosecuted for the assault and was duly convicted by Dudley Magistrates upon his guilty plea. Saunders also made a standards complaint against Melia.
Tour appointed the supposedly independent Miranda Carruthers-Watt to prepare a report. She interviewed Melia who falsely claimed to her that he had sent Saunders the written apology referred to above. Below the subscription we are taking the unusual step of setting out the correspondence on this subject between Saunders/Tour/Carruthers-Watt for the record, but suffice to say that - to Tour's immense satisfaction - Carruthers-Watt could not be bothered to seek documentary proof from Melia that he had sent the apology and/or amend her Report to show that she had asked for the evidence, but that Melia had failed to supply it. Again to Tour's satisfaction, she then decided Saunders was not needed to give evidence at the standards hearing. Tour duly blocked him from doing so. [For the sake of completeness Carruthers-Watt made a mealy-mouthed comment at the hearing that she "hadn't seen any evidence of the apology having been sent" but STILL failed to draw the obvious conclusion from this. In any event she had at least 19 days pre-hearing to clarify the position and amend her Report accordingly but chose, for whatever personal reason, not to do so.]
Saunders did have one small procedural victory in that he had Cllr Rizwan Jalil removed from sitting on the hearing panel as Jalil has been making threatening phone calls to him - including one at 10pm on a Saturday night.
The Hearing
The appointed panel was made up of three Labour Councillors, one Tory, a supposedly independent legal adviser, and Richard Phillips - the Independent Person. Two of the Labour Councillors were very close associates of Melia including the Chair, Cllr Keith Allcock. Allcock very aggressively prevented Saunders from giving any evidence at the hearing, and this decision was fully backed by Richard Phillips.
The hearing was in public in the Council chamber. Melia styles himself as a champion of the armed forces but was too cowardly to sit where he could be seen from the public gallery. Allcock - again backed by Phillips - allowed him to move and sit out of sight underneath the overhang of the public gallery.
When the issue of the apology came up Melia claimed that he had sent it and that if the Committee wanted him to sort through all his emails he could find it - even though he had not been able to find it in the months before the hearing. Allcock and the Committee, including the Tory Councillor and the Independent Person, Phillips, could not be bothered to wait for Melia to search his email account and simply carried on with the hearing.
Notwithstanding all of Monitoring Officer, Surjit Tour's, efforts Melia was unanimously found to be in breach of the Code of Conduct for Councillors. Hardly surprising given the video evidence above and Melia's guilty plea at the Magistrates' Court. Importantly, for the context of this piece, the Panel unanimously (i.e. including Phillips) found that Melia had shown no remorse whatsoever for the assault. The only logical inference from this is that the Panel - including Phillips - did NOT believe Melia sent the apology as he claimed (and which he could not find proof of doing). Indeed, as part of the sanctions the Panel recommended one was specifically that Melia send a written apology to Saunders - clearly totally unnecessary if the Panel - included Phillips - believed that he had already sent one.
[In a monumental "up-yours" to Saunders, Surjit Tour sent him "Melia's apology" - as ordered by the Panel for Melia to send - in the precise form Tour had slipped into the evidence bundle and bearing the same date!]
The Second Standards Complaint
Saunders then made a second standards complaint on the basis that Melia had again not complied with the Code of Counduct by, inter alia, failing to act with honesty and integrity; failing to act with reasonable care and diligence; bringing the standards investigation and hearings process into disrepute; and failing to cooperate fully with the standards process. The grounds were, inter alia, that he lied to the Monitoring Officer, Miranda Carruthers-Watt and to the Panel about sending the apology.
Tour didn't handle the complaint (although nothing in Sandwell happened without him pulling the strings) but handed it to a minion at the Council, Deputy Monitoring Officer David Wilcock. Wilcock was only at Sandwell for a short period, but is a qualified Solicitor of some years' standing.
Despite the documentation set out below, the evidence at the Panel hearing and the unanimous finding that Melia had shown no remorse whatsoever for the assault, Wilcock was able to find that as Tour had slipped the draft apology into the evidence bundle, and in the face of the actual evidence, that:
"[Melia] was able to produce a copy of the [my emphasis] original written apology in the complaint proceedings ... I am unable to conclude that [Melia] lied".
This is absolutely appalling from a Deputy MO and qualified Solicitor but worse still, Wilcock reported that the (anonymous) Independent Person had been consulted and fully agreed with his incredible findings. Saunders wrote to the Council who confirmed that the Independent Person was indeed Richard Phillips, the very person who had been on the original panel! but was now able to conclude that the apology had, indeed, been sent. Quite incredible although "normal" for Sandwell which was recently placed under Government "Special Measures" for two years due to "serious governance issues".
It is high time that the disciplinary system for councillors is taken out of the hands of their colleagues and and becomes a genuinely transparent and independent process.
Epilogue
Despite his appalling behaviour and criminal conviction, Melia is Deputy Mayor of Sandwell this municipal year, and will be Mayor next year.
Carruthers-Watt was City Solicitor at Salford Council - 2015 - 2020. Wilcock was Interim City Solicitor and Monitoring Officer (part-time) in 2021 and is now a part-time Solicitor "Corporate Projects" at Salford. Surjit Tour has just been appointed as City Solicitor and Monitoring Officer at, yes, you guessed it, Salford Council!
For more on Surjit Tour read numerous posts on the Skidder blog at sandwellskidder.blogspot.com and "Monitoring the Monitoring Officer" at crowmultimedia.blogspot.com
rottencouncils@gmail.com
A Crow Multimedia publication
The email correspondence about the non-existent "apology":
Email - Skidder to SMBC - 11/10/22
“Surjit Tour has sent me an investigation into Melia's attack on me.
Before I comment within the time limit specified please send me the supposed apology from Melia (which I have not received) and the newspaper articles in which he is alleged to have shown remorse.”
Email - Surjit Tour to Skidder - 17/10/22 (Part)
“Paragraph 7 of the arrangements explicitly states that the evidence gathered during the investigation is not shared with the parties during the ‘maxwellisation’ process. If you dispute any elements of the report, please can you state the extracts that you dispute and why. Your comments will then be forwarded to the investigator for her to consider prior to her completing the final report and submitting it to me for consideration.”
Email - Skidder to SMBC & Miranda Carruthers-Watt - 23/10/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
On 11th October, and despite the time taken to deal with this blindingly-obvious matter so far, I was sent the draft Hoey Ainscough report excluding Appendix 1. I was ordered to reply (if so advised) within just 10 working days which I now do subject to retaining the specific right to comment on Melia's lie that he has apologised, and clarification of the news reports allegedly showing Melia expressing remorse for his attack on me.
I did write to the Monitoring Officer but, as usual, he has been obstructive and refused to provide the information requested. Hence why I reserve the right to respond when these issues are clarified.As it is, there is at least the implication that I am lying when I say there has been no apology and that is potentially defamatory. As it is, Hoey Ainscough says that it is important that Melia acknowledge his wrongdoing although I am sure this matter will now become subject to the usual cover-up.
I do not understand how Hoey Ainscough - who are no doubt being paid handsomely by the taxpayer - can simply make the bold assertion that Melia has apologised without providing any evidence of this whatsoever and in the enclosed document I refer to Melia's obligation to fully assist the standards investigation.”
Extracts from the enclosed document:
Paragraph 1.3
Of “... Hoey Ainscough Associates Limited who are providing support to the Council in respect of a number of matters …”
Comment: This comment raises clear concerns about Hoey Ainscough’s impartiality given that they are clearly earning fees on a number of SMBC matters.
Of: “I asked Cllr Melia if he would be prepared to apologise to Mr Saunders. Cllr Melia says that he has already apologised. It is not clear if that was an apology to the complainant or a general apology made for his behaviour.
Comment 1: Cllr Melia has NOT apologised to me.
Comment 2: It is a requirement of the Members Code of Conduct that councillors co-operate with standards investigations. Why were Hoey Ainscough seemingly unable to ascertain this basic information from Melia himself? What are they being paid for?
Paragraph 3.1
Of: “I arranged interviews [plural] with Cllr Melia …”
Comment: Why then were Hoey Ainscough unable to ascertain details of Melia’s alleged “apology”? [See also Paragrapgh 1.4 above.]
Of: “Appendix 1 [a representative section of media reports]”.
Comment: This has NOT been supplied to me. Further, I wrote to Tour, SMBC’s Monitoring Officer on 11th October, 2022 asking:
“Before I comment within the time limit specified please send me the supposed apology from Melia (which I have not received) and the newspaper articles in which he is alleged to have shown remorse.”
Tour has refused to forward the supposed apology or the newspaper articles referred to. Neither has he forwarded Appendix 1. Thus I specifically reserve my position and my right of reply in respect of those matters.
Of: “In my view, however, it is important that Cllr Melia acknowledge that his behaviour was not acceptable”.
Comment: following on from what is said above Hoey Ainscough have not established that Melia is sorry at all and Tour is not prepared to say in what form Melia’s alleged apology was [made] - probably for the simple reason there has not been one.
Comment: Hoey Ainscough are right to recognise my journalistic/media work. We also know which way this is likely to go noting the identity of the Monitoring Officer and his track record of exonerating Sandwell Labour Councillors.
This matter is NOT suitable for informal remedial process - even leaving aside the fact that Melia is STILL lying about an apology - because it involves an unwarranted physical assault of a journalist and damage to his recording equipment.
Of: “Cllr Melia says that he has apologised to Mr Saunders”.
Comment: This is an outright lie. He has NOT apologised to me. Tour was asked about the apology but, unsurprisingly, is refusing to provide any information of the alleged apology which is not provided by Hoey Ainscough either. I have placed on social media that Melia is lying about an apology and no doubt Hoey Ainscough or the Monitoring Officer will re-question Melia and amend the Report to show that no apology has been made to me.
Email: Skidder to Tour, Carruthers-Watt and Melia himself - 28/11/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
Tour has written to me on 25th November, 2022 sending me what is supposed to be the final version of a Report by Miranda Carruthers-Watt into the incident when Melia assaulted me.
Tour and Carruthers-Watt appear to have totally ignored my email of 23rd October, 2022 when I pointed out that Ms Carruthers-Watt states twice that Melia has apologised to me when he has not and she cannot state any proof of Melia's assertion.
As there has been over one month since my email I rather assumed that the investigator - who is apparently being paid £3,600 plus vat - would have actually gone back to Melia and asked him where, when and how Melia says the apology has been made? Seemingly she has not done so.
I am copying in Melia to this so that HE can clarify the position. Clearly you and the investigator have not dealt with this. I will not be stitched-up here and at least I can expose Melia's lies when he is unable to confirm the fictional apology.
I also want this email placed before the Standards Committee if this matter is not clarified NOW.”
Email: Tour to Skidder - 29/11/22
“The issue you raised concerning the apology was referred to the Investigator to consider before the investigation report was finalised.
This issue will be considered by the Standards Panel if the Panel determines that Cllr Melia has breached the Members’ Code of Conduct. The Panel will be advised of the conflicting position you have raised.
I have raised this issue with the Chair of the Standards Panel (for procedural purposes) [the Chair being a close friend of Melia] and he concurs that the conflicting account as to whether an apology was provided will be a matter that the Panel will examine should Cllr Melia be found to have breached the Members Code of Conduct. You will be afforded the opportunity to make representations to the Panel in relation to the issue.” [This was a lie and I was specifically NOT allowed to make representations to the Panel.]
Email: Skidder to Tour, Miranda Carruthers-Watt (Hoey Ainscough) and Melia himself - 06/12/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
I think when Mr Tour writes me stupid letters like his recent one he forgets that I am aware of his "history" when dealing with Standards and, indeed, other issues.
I have written to every serving Councillor informing them of the true position with regard to Melia's fictitious apology.
Ms Carruthers-Watt did not strike me as being an incompetent Solicitor and so I am perplexed why she has not simply asked Melia for proof of his assertion and placed his response in her Report. Perhaps I am wrong about her expensive abilities (£3,600 ex vat according to The Birmingham Mail yesterday) or perhaps she has been got at? Mr Tour is a Solicitor, and so why can't he ask Melia where, when and how this supposed apology was made?
As it is I fundamentally oppose the Report as I have indicated previously. As above, I am taking the appropriate steps to make Councillors aware of the reality.”
Email: Skidder to (almost) all Sandwell Councillors - 06/12/22
“Dear Cllrs
THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
Cllr Melia is putting it about that he has "apologised" for assaulting me. He has not. Indeed he has taken to the press to say that he did nothing wrong, and has shown no remorse whatsoever.
But many of you will know that Melia was crying to the Police and the CPS to be allowed to accept a caution prior to the Court hearing (and, of course, a caution cannot be administered to a person who has not admitted the offence). Of course, he then pleaded GUILTY at Court.
Mr Tour is pulling some stunt and The Birmingham Mail yesterday reported that he had spent £3,600 on an investigator's report. Into what? As Darryl Magher pointed out - that's over a grand a second for the video of the incident!
I have written to the Criminal and asked him to state to whom he claims he has apologised to, and when and where this allegedly happened. As above, he certainly has NOT apologised to me. He has failed to reply, and so draw your own conclusion from that!
Perhaps if he wants to offer me an apology the Mayor will allow him to do so at the next full meeting?
Rest assured - if the Criminal is allowed to keep perpetuating this "apology" lie, this will be publicly exposed.”
Email: Surjit Tour to Skidder - 09/12/22
Further to your complaint against Cllr Melia, a Standards Panel hearing has been called to consider the investigation report in accordance with the Arrangements for dealing with complaints against members on Friday, 16 December at 11am. The hearing will take place in the Council Chamber at Oldbury Council House at 11am in open session, although the Panel will deliberate in private.
The Investigator has decided not to call any witnesses. It is a matter for the investigator as to whether she wishes to call any witnesses. You will not therefore be required to attend as a witness, however you are free to attend the hearing and observe the proceedings from the public gallery. [Why did Carruthers-Watt exclude me?]
The Panel is aware of the issue over whether an apology has been provided to you. The issue will be addressed by the Panel at the hearing. The Panel may call you to address the Panel on this specific issue if you are in attendance. [Again this was a lie and the Panel very aggressively prevented me from giving evidence.]
Email: Skidder to Members of the Ethical Standards Panel due to hear this matter and to Melia himself (extract) - 15th December, 2022
I have already written to you collectively concerning Melia's lie that he has apologised for his conduct when he has not - indeed he has spoken to the press trying to justify his - admitted - criminal conduct.
The Investigator and Tour refused to remove his allegation concerning the apology from the report before you tomorrow without asking Melia to provide evidence. Tour tells me - for what that is worth - that he has somehow appraised you of the contradiction concerning the fictitious apology. No doubt tomorrow - given the reticence of Tour and the Investigator to question Melia themselves about the apology - you will no doubt do so in public.
[The email also dealt with a request that a named Councillor be removed from the Panel as he was telephoning Saunders at home threatening him. This was actually agreed to!]
Following an internal inquiry Dorset's Monitoring Officer (MO), Jonathan Mair, was not in breach of a journalist's Article 10 rights and other rights when intercepting the private emails from him to a number of Dorset Councillors without their prior consent, including that of the new Leader of the Council, Cllr Nick Ireland (before he became Leader).
West Midlands journalist, Julian Saunders, was investigating Dorset Council's interim appointment - at Director-level - of disgraced former Sandwell Chief Executive, Jan Britton (further reading - see * below). Mair, together with Dorset Chief Executive, Matt Prosser, wished to prevent the journalist from contacting serving Councillors, and secretly arranged to have their mail redirected to the MO. Neither did Mair tell the journalist what he had done. Saunders found out about this and made a formal complaint.
The complaint was dealt with by Mair's Deputy, Grace Evans. Prior to the complaint Ms Evans was copied into correspondence saying that the journalist should be kept "under review", with the same email mentioned a case involving a prison sentence for a stalker . Nevertheless, Ms Evans felt able to deal with the formal complaint and to exonerate Mair. She found that although Saunders had journalistic rights and Article 10 rights, Mair had simply been "managing correspondence" so that this did NOT amount to interference with those rights. Of course, he was managing the correspondence of elected members without their knowledge or consent.
Ms Evans did not deal with the data protection and other issues arising from the interception of private emails to serving councillors. She did, however, make certain recommendations including:
1 The actual redirect should be lifted (something of a pyrrhic victory as Mair threatened the use of public funds to sue the journalist if he attempted further contact with Dorset Councillors); and
2 Prior consent of recipients should be obtained before re-directs are put in place.
There is no recommendation that the person sending emails should be advised of any re-direct.
Comment:
It is well known that in other councils Monitoring Officers and other staff are covertly reading the private emails of serving councillors. This weird ruling at Dorset is chilling for journalists and members of the public wishing to legitimately communicate with councillors. Councillors beware - Big Brother is watching you ...
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:
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 Freedom of Information Act 2000 is a feeble piece of legislation as it is, but it includes a criminal offence where information is deliberately withheld, destroyed etc. However, even when faced with multiple examples of a local authority lying to it and subverting the Act the ICO has declined to take any action. Things get no better at the Information Rights Tribunal where that body is, apparently, unconcerned when presented with false evidence
Sandwell Metropolitan Borough Council (SMBC) has repeatedly lied to the ICO for several years with complete impunity. Now a local journalist writing on Sandwell issues has pointed out a major discrepancy in a case presented to the First Tier Tribunal. Another feature of this matter is the incredible length of time it takes to get to this truth - in this case, literally years.
Here is a letter (with minor redactions) the journalist sent to the Tribunal and ICO last December. Inevitably, there has been no response whatsoever.
[Sandwell is no longer in "Special Measures" but shows few signs of improvements in the "poor governance" of yore.]
Email - 13/12/23
THIS IS A PRIVATE AND CONFIDENTIAL COMMUNICATION FOR 28 DAYS ONLY
I have repeatedly informed the ICO and Information Rights Tribunal of the corruption influencing SMBC to lie to the IC and the Tribunal. The only outcome of this has been abuse of me personally and, in one case, mockery of me by a Judge of the Tribunal in the course of a live hearing (which will shortly be the subject of further correspondence). I would respectfully remind the Tribunal and the ICO that SMBC are currently in Government "special measures" due to serious governance concerns (at huge cost to the taxpayer).
Case EA/2019/0179 arose from the wrongful suspension by SMBC of the secretaries working for Cabinet members on the basis of a false allegation. I made a FOIA request in respect of the sordid affair which was substantially refused. The matter proceeded via the ICO to a full Tribunal hearing led by Judge Holmes.
Although SMBC had (once again) lied to the ICO about the availability of disclosable documentation, a large tranche of same was magically "found"" prior to the Tribunal Hearing and 631 days after the date of the original request.
David Stevens, the now disgraced and former Chief Executive of SMBC, gave evidence both orally and in writing. SMBC played the same argument it also used in another Tribunal hearing. Stevens dealt with my complaints about SMBC's late disclosure of documents by informing Judge Holmes and the Panel that he had ordered an "investigation" into the original handling of my FOIA request. [Editor's Note: needless to say nothing ever came of thisalleged investigation.]
In respect of the substantive issue he played a trick also used by SMBC at another Tribunal Hearing, telling the Tribunal that he had ordered a brand new investigation into the substantive issue (here, the wrongful suspensions) so that SMBC could rely on s.31 to avoid further disclosure since that may prejudice the ongoing "new" investigation. (See further below.)
I made a further FOIA request in respect of the alleged new investigations by the now disgraced Stevens. Whilst this has only been partially successful, new documentation disclosed casts considerable doubt on the evidence given by Stevens. I should add that SMBC - once again - only managed to find documentation which it had "missed" when dealing with the original request AND an internal review after the intervention of the ICO.
It is noteworthy that the actual hearing was part-heard on the original date of 30th October, 2019 and went over to a second date being 30th January, 2020.
It is now clear that Stevens did order a desk-top evaluation of the handling of the original FOIA - probably by a senior employee called Neil Cox - but that this was concluded by mid-November, 2019 - at the very latest - with a decision not to continue with any further action. Whilst this was after the date of the first half of the hearing it was some two and a half months before the second half of the hearing but that information was deliberately concealed from the Panel. Stevens admitted at bundle page 119 para. 11 that the preliminary "fact finding" was done on 13th August, 2019 but at para 14 on the same page he added, "I can confirm that this matter is being looked into to understand why this occurred". Neither he nor Mr Hopkins of Counsel informed me, the ICO, or the Tribunal itself that no further action was being taken when this was known weeks before the second part of the hearing.
Stevens did also commission a supposedly independent report from West Midlands Employers (WME) into the actual suspensions, which SMBC has also refused to disclose via my second FOIA request. I say that WME is not truly "independent" but the real relevance here is, again, the dates. At page 119 para 13 of the bundle Stevens said he received the Report on 17th October, 2019. [Editor's Note: BEFORE the first hearing.] He stated, "The report indicates that the matter [i.e. the suspensions] was not dealt with appropriately. The report considers whether the Council should be taking any action, disciplinary or otherwise, against the officers who dealt with the matter".
The "independent" Report was commissioned very shortly before the Tribunal hearing was due - I say in a deliberate attempt to nix it - but Stevens told the Panel (bundle page 121 para. 23) "The matter is still live: my investigation could result in action being taken against other council officers for their conduct during the suspension, investigation and handling of the original FOI. Public disclosure in these circumstances would be highly prejudicial to this investigation". Leaving aside - for now - that this was straight out of the playbook used by SMBC in another Tribunal case and - I say - that the "independent" report was due to be a whitewash, the fact is that the latest FOI clearly shows that by December, 2019 any issues arising from the Report were concluded with the last communication on the subject dated 6th January, 2020 - 24 days before the second half of the hearing. Neither myself, the ICO or the Tribunal were informed of this.
For the avoidance of any doubt SMBC stated in the second FOIA response that the outcome of the investigation into the suspensions "was that no further action should be taken against any officer". If that was actually in the Report then Stevens knew this even before he wrote his original statement and before he gave live evidence to the Tribunal. I was under the impression that constitutes perjury? In any event, he definitely knew before the second hearing but allowed the deceit to lie on the record.
There were solicitors from SMBC as well as Mr Hopkins of Counsel at both hearings but the facts were concealed. Yet as Judge Holmes's judgment reads at para. 82:
"Mr Hopkins went on to refer to the statement of David Stevens at, at para 23, where he states that the matter is now live again and could result in a further investigation. If there is any doubt in January, 2018. there is no doubt now, and there could be further disciplinary action (i.e. against other persons, not the secretaries). There would be dangers if this information was put into the public domain before any investigation had run its course ..."
Whilst Mr Hopkins has been very willing to make written attacks on me in a number of Tribunal cases only to withdraw them at the commencement of live hearings, I somehow doubt that he has deliberately tried to mislead the Panel but Stevens and/or SMBC Solicitors did so mislead.
I understand that the Panel eventually concluded, in effect, that my original FOIA had been too early and that it should view the position as at January, 2018 but the fact remains that much Tribunal time was taken up with arguments about a supposed ongoing investigation which had, in fact, been concluded. For example, Mr Hopkins made submissions about the possibility of a "steps direction" given the supposedly ongoing "new investigation". If the Tribunal was aware that there was no further ongoing investigation would it have found differently? Possibly not, but I am thoroughly sick of having MY character and reputation impugned by SMBC xxxxxxxxx when they have repeatedly lied to the ICO and the Tribunal over a period of several years. Just recently the ICO - xxxxxxxxxxxxxxxxxxxxxxxxx - applied twice (and failed twice) to strike out further Appeals to the Tribunal. I am just wondering when someone in authority is going to get a grip on all this and ensure that firm action is taken against SMBC employees (including solicitors) who continue to act unlawfully and mislead the Tribunal?
The Information Rights Tribunal has refused the Information Commissioner's application to strike out an appeal relating to the application of s.42 Freedom of Information Act 2000 and the question of legal professional privilege (LLP).
The Appellant alleged that a local authority Monitoring Officer deliberately and unlawfully failed to disclose material documents pursuant to a Subject Access Request (SAR) and then fraudulently and/or dishonestly sought to conceal his misconduct by transmitting the SAR response to the applicant via a third-party firm of solicitors. The local authority refused to disclose documentation relating to the instructions to the third party firm on the basis that they were subject to LPP. The Appellant commenced Tribunal proceedings.
Curiously, the Information Commissioner made the strike out application rather than the local authority even though, on the basis of the Decision Notice, he had no special knowledge of the case and had simply decided that because third party solicitors were involved s.42 "automatically" applied. He presented no additional evidence or representations in support of the strike out application.
A Judge of the Tribunal has decided that the appeal does raise a triable issue so that the matter should proceed to a full hearing. The case continues.
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:
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.
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
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:
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.
The Solicitors Regulation Authority (SRA) has refused to take any further action - despite new evidence - following their initial rebuke of "equalities", “diversity” and "ethical" Solicitor, Mark Greenburgh.
The first complaint
In 2016 Sandwell Council (currently in Government "Special Measures” following serious governance issues) appointed Greenburgh (without open tendering and despite a legal services contract with another firm) to investigate allegations of fraud and other wrongdoing. At the time, he was a Partner at the firm now known as Gowling WLG but, at the time, popularly known locally as "Wragge's". The investigation focused primarily on two Labour Councillors, both of whom were deemed to be enemies by the Council's (then) Labour Leader. One was of Asian heritage and a Muslim. At the time Greenburgh self-described himself on Twitter as “a committed Zionist”, but this was not seen as any obstacle to his appointment.
During the course of the investigation Greenburgh made the grotesque comment that the disability of the Muslim Councillor's daughter was the result of "inbreeding" within that community. Jan Britton, the subsequently disgraced Chief Executive of the Council, described this outrageous statement as a "quip". The Councillor complained to the SRA as did a local blogger.
The handling of the first complaint
The SRA eventually issued a mild rebuke to Greenburgh in June, 2018 which was not published until February, 2019. It seems the SRA informed the Councillor of the outcome, but not the blogger. The SRA found that the comment was “capable of causing offence” but made no comment whatsoever in respect of its racist nature. It is clear from the correspondence that the “inbreeding” slur was the only matter adjudicated upon.
The blogger raised the racism issue with the SRA which refused to comment further on the evidence in the case and refused to comment on the ethnic make-up of the adjudicating panel.
In 2021 the SRA was made aware of other allegations surrounding Mr Greenburgh’s now infamous report but, in or around 2022, removed the original rebuke from its public records. Thus there was no mention of the deeply unpleasant nature of the slur in the SRA’s finding and they have gone on to wipe the slate clean despite being aware of other concerns and evidence.
The “Cox Review”
There had been a number of serious questions arising from Greenburgh’s Report and Sandwell Council undertook a review - known as “the Cox Review” - into the whole affair. These other issues are of serious public concern but, mostly, not relevant to this article. Sandwell is a Labour fief which has been mired in corruption for some years - hence the Government intervention. When the Cox Review was completed it was damning. But following a change in the local Labour Leadership, the Party decided to suppress its publication (having itself leaked the original Wragge Report despite an ongoing High Court action). This decision to hide the Review was seemingly backed enthusiastically by Mr Mark Stocks of Grant Thornton, the Council’s supposedly independent auditor. The current Leader, Kerrie Carmichael, openly lied in a full Council meeting that she did not even know what the Cox Review is! Nevertheless, it was leaked to the public.
The Review makes disturbing reading for a number of reasons but there was considerable concern that Greenburgh’s vile “quip” was not the isolated incident as previously portrayed by Jan Britton and others.
The second complaint
A further complaint was submitted to the SRA based on the new evidence contained in the leaked “Cox Review” and included other issues as well - not least that the disgraced Britton had been secretly communicating with Greenburgh and his Assistant (still at Wragge’s) “off the record” (something Britton failed to mention in evidence in an associated High Court case and nor did Sandwell Council give discovery of these communications within those proceedings).
The Review disclosed other “quips” from Greenburgh which, as the Reviewer put it, could be perceived to be racist e.g. suggesting that all men with a Muslim name associated with the enquiry were “relatives” of the Councillor; questioning whether the Qur’an ordained that Muslim men could own pubs; suggesting that a Muslim couple may have deliberately had more children to increase the likelihood of a housing upgrade and that the female in the relationship may not have had “a choice” in this matter.
A further complaint was made to the SRA since most right-thinking people would also view that these comments are racist and likely to cause offence (which, in fact, they did). The SRA completely ignored the question of Wragge’s using secret communication channels when dealing with a sensitive “anti-fraud” report and the second complaint got no further than an office-based decision. The Investigation Officer concluded that the additional allegations (if proven) would not have affected the outcome of the rebuke given in the first complaint (which, as above, made no comment on the racist nature of an alleged isolated, single, “quip”). The SRA said there would have been no difference in the sanction despite the later evidence (which had been deliberately suppressed by the Council) indicating that the slur was not an isolated comment and that Greenburgh was reported as making similarly offensive remarks whilst acting as a Solicitor. Any further investigation, said the SRA, would be “disproportionate”. There is no right of appeal.
Comment 1
This is good news for bent Councils and errant lawyers whom the SRA appear to be saying can use the likes of WhatsApp, Telegram to conceal communications from councillors, council employees, the ICO, the public who are their ultimate paymasters, and even from the Courts.
Racist remarks will only merit a slap on the wrist even where they are not, as Labour Sandwell initially claimed, “isolated quips” and steps are taken to conceal other such vile remarks.
Comment 2
Despite the rebuke, and the Cox Review, Mr Greenburgh denies wrongdoing and that he is “racist”. Incredibly, Greenburgh is Chair of a charity, The Diversity Trust. Less surprising given the facts set out above and the supine actions [sic] of the SRA, he is on a Law Society Committee in the City of London and a member of The City of London Solicitors’ Livery Company - in other words, “one of the boys”.
Despite the appalling racist comments (and many other problems with Greenburgh’s Report) Gowling WLG (Wragge’s) have steadfastly refused to refund their considerable fees, either to the taxpayers of dirt poor Sandwell or to a Muslim charity.
The considerable offence caused by Wragge’s (and by Grant Thorntom for their perceived involvement via Mark Stocks in the suppression of the Cox Review) has led to demonstrations outside their respective Birmingham offices.
In our post dated 27th April, 2023 (link below) we reported that Anya Proops KC (QC at the time of her 2018 Opinion) told Sandwell Metropolitan Borough Council (SMBC - currently in Government “Special Measures”) that it was lawful for it to use The Local Authorities (Indemnity for Members and Officers) Order 2004 (“The 2004 Order”) to indemnify an employee in respect of critical comments by a Blogger about content on her personal Twitter account.
In February, 2021, SMBC admitted to the Information Rights Tribunal that its Head of Legal and statutory Monitoring Officer, Surjit Tour, used Ms Proop’s Opinion to secure the Council’s agreement to fund Lisa McNally (then SMBC’s Director of Public Health) in a private legal action against the Blogger. The action was struck out at a very early stage by the High Court as having no real prospects of success, but at a loss to the taxpayer of around £100,000.
The curious aspect of this is that Ms Proops must have been considering either a hypothetical case in 2018 or issues relating to the personal Twitter account of a different, unidentified, employee since, at the time, McNally had not yet been employed by SMBC. n
Now there is another twist to the tale since it is now clear that Proops also advised the Council that it could also indemnify an employee relating to their personal use of social media under the principles of employers' liability law. Once again, Mr Proops must have advised in 2018 in respect of a hypothetical case or in respect of a different, unidentified, employee.
A document now shows that when Tour asked the political leader of the Council for authority to use public funds to subsidise McNally (who earned between £105,000 and £109,000 per annum) he did not mention The 2004 Order at all. On the basis of Ms Proop’s 2018 Opinion he wrote:
“The Council supports Lisa McNally in this claim, pursuant to its duty of care towards her.
The Council has a duty of care towards its employees. Employers, including the Council, must provide a safe place of work. The duty extends to mental well-being as well as physical well-being. In determining if an employer has complied with this duty, a court would decide whether the employer has taken reasonable care of an employee, have they done enough? It would also have to determine if the injury caused to the employee was related to the actions or failure to act of the employer and if the injury was reasonably foreseeable.
In this case, Lisa McNally has been subjected to attacks from an individual, through their publications, for a number of months. Lisa McNally has suffered injury because of this; to her mental well-being. It can be reasonably foreseen that if the Council does not act to take reasonable care of the employees, further injury will be caused to her.
It is very important that the Council complies with its duty of care towards employees, taking steps to protect them from abuse, harassment and oppression received because of their employment [my emphasis], and trying to prevent further occurrence of similar behaviour.”
Initial Comments:
Tour does not mention The 2004 Order here at all. In the protocol process after the initial letter of claim the Blogger pointed out that Tour had no legal basis to indemnify McNally in respect of personal litigation and that clearly The 2004 Order did not apply to issues arising from the conduct of an employee acting outside the course of his/her employment. Tour and his large team insisted to him, and to his Solicitor, that The 2004 Order did apply in this case without mentioning Ms Proop’s Opinion. As we saw in the April post herein, Tour admitted to the Tribunal that Proops has authorised indemnity on the basis of The 2004 Order in a hypothetical or different case.
The emphasised words, “because of their employment” is of particular note. Perhaps Ms Proops had this in mind in 2018 when advising on a hypothetical or different case since she presumably did not envisage that an indemnity would be provided for the personal litigation of a highly-paid employee in respect of their use of a personal Twitter account? But, nevertheless, Tour told the Tribunal that Ms Proops’s Opinion provided the legal basis to use taxpayer funds to indemnify McNally.
[In the course of the litigation the Blogger presented evidence that McNally (a Clinical Psychologist) used her personal Twitter account to attack individuals (including medically-qualified ones) who did not agree with her views on the handling of the Covid pandemic. As we wrote in April, she regularly questioned the Government’s handling of the pandemic (including the views of expert bodies advising it) despite being in a politically-restricted post. She also followed, and engaged with, a number of troll accounts (which the Blogger identified) which were actively attacking the Blogger himself. It is noteworthy on a legal point that Tour rejected outright any possibility of SMBC accepting vicarious liability for McNally’s own Twitter output, which is a very clear indication that the Council were not going to accept any legal liability for her personal comments in any circumstances.]
But Proops (seemingly) goes further …
Surjit Tour did not advise McNally to seek independent legal advice at any stage. Neither did he inform the political leader of the Council that this was the obvious course of action for McNally to take so that the (then) leader was seemingly unaware that was the correct and appropriate thing for McNally to do.
Indeed Tour went even further in persuading the political leader to authorise indemnity, again praying in aid the 2018 Proop's Opinion. He bizarrely told the leader that the Council itself could be sued by McNally if they did not indemnify her. These is the way he put it:
“Alternative Options considered and discounted
The Council could choose not to support the Claimant. This would expose the Council to risks of an employment dispute given the duty of care that the Council owes to her [McNally] as an employee, as set out above.”
Additional Comment
It is noteworthy that the High Court case was brought as a personal action by McNally with Tour and no less than three of his publicly-funded colleagues acting as her Solicitors, with the taxpayer picking up the tab. SMBC has claimed legal professional privilege in respect of Ms Proop’s 2018 Opinion but we must now question whether she was advising generally in respect of obvious “attacks” on an employee in the course of his/her employment? Did she really advise that taxpayers' money could be used to support private litigation relating to a personal social media account? Tour says that she did advise this although, as above, SMBC was not prepared to accept vicarious liability for McNally’s personal output and refuses to disclose even a redacted version of the 2018 Opinion.
If Ms Proop’s was extending indemnity principles to cover an employee’s personal Twitter output it would clearly be helpful if she makes public the case authorities upon which she relies (or that Tour does so on behalf of SMBC). As things stand, there is no obvious legal basis for extending publicly-funding indemnities in this manner.
In a recent case at the Information Rights Tribunal (which settled pre-hearing) some curious facts came out concerning the procedures at Sandwell Metropolitan Borough Council (SMBC) legal department, headed by highly controversial Monitoring Officer, Surjit Tour*.
Tour was re-employed by SMBC and specifically tasked, inter alia, with “doing a number” on local blogger, Julian Saunders. To this end Tour has tried various tactics and also set up a £300,000 fund of taxpayers money to crush Saunders financially and to destroy the blog (as reported in The Times and mentioned in Parliament). He also authorised the unlawful funding of a claim by an employee, Lisa McNally, against Saunders in respect of her personal Twitter account which ended up costing the taxpayer £100,000.
Saunders, a former Solicitor, has presented a number of matters to the Information Rights Tribunal which has usually resulted in a deluge of documents being provided to him which he had previously been told didn’t exist or were somehow “unavailable”.
At a small number of hearings involving Saunders - including at the striking out of McNally’s claim at the High Court in London - he noted a curious thing. Tour was sending not one but two senior in-house Solicitors to sit behind Counsel. Given the low-level nature of the litigation it was unclear to Saunders why the taxpayer was (a) paying for two senior in-house lawyers to attend, and (b) whether both lawyers were claiming travel and subsistence to attend hearings, notably the one in London. He duly made a Freedom of Information (FOI) request.
A defence of vexatiousness was made by Tour but died on the vine. But SMBC maintained a defence under s.12 FOIA (Cost of compliance exceeding the appropriate limit). As usual, the Information Commissioner upheld Sandwell’s s.12 interpretation.
Mr Saunders had left the law in 2004 but was quite familiar with computerised case management systems even then. He imagined that the technology would have come on by leaps and bounds, but this is not the case with the Sandwell system.
SMBC confirmed that they had used the CIVICA Legal system for part of the period covered by the FOI request, but had then changed to the iCasework system.They informed the Tribunal that neither of these systems maintained records accessible to managers or other third parties relating to the time spent travelling to, and attending at, hearings. Thus there was no way of correlating whether more than one person was out of the office (or away from home if working from there) and attended hearings with another. Such information is recorded on individual files and so, for FOIA purposes, it would be necessary to physically inspect every single litigation file (over the FOI period of two years) to try and puzzle these things out. Yet even without the data SMBC were somehow able to confirm that double attendance was rare.
Mr Saunders was astonished by this, remembering ghastly weekly meetings when senior partners came armed with computerised sheets and analysed fee earners' time and cost performances. That was in 2004. He responded to the SMBC submissions that it was admitted (at least in respect of attendances) that the records were “held” - within the FOI meaning of that word. Of course, it is hard to see how they could not have been noting that SMBC keeps internal time recording details for each fee earner at “the internal charging rate”, and this also forms the basis for claiming inter parte costs should that become applicable. (Bizarrely, the Civica and iCasework systems operated by Sandwell are also said to be incapable of recording travel and subsistence costs on any records available to management and these are “only contained on individual files”.)
SMBC said it was pivotal that there was no need to record if more than one taxpayer-funded solicitor attends a hearing, and there is no reason to do this. Mr Saunders countered that management needed to know (a) where lawyers actually are, and (b) why taxpayers’ money was being unnecessarily wasted by double attendances.
Neither CIVICA nor iCasework can be searched (say SMBC) to show whether hearings actually took place on individual cases (whereas back in 2004 Mr Saunders specifically remembers time recording “hearings”). As above, neither can travel and/or subsistence be “searched” across the system say Sandwell.
Mr Saunders asked why fee earners could not simply be asked whether they recall attending any hearings in the previous two years in the company of a colleague particularly when the number of such occasions was somehow known to be very small. SMBC thought this a wholly unreasonable request saying it was unfair to ask fee earners to recollect such incidents and the results might be “inaccurate”. Further a fee earner may recall that s/he was involved in a double attendance but not whether s/he time recorded it on the file! Despite this they did physically “interrogate” one of the files specifically mentioned in the FOI request (the McNally fiasco) even though this had already been the subject of a separate FOi request which the Council had answered.
Incredibly SMBC initially stated that they had no record on file of two Solicitors attending the McNally hearing (in London) although when they investigated the file they found an email showing that another solicitor had emailed to say she was going to attend (and, according to the other FOI, there were substantial rail fares incurred). The email would, of course, constitute a record within the ambit of the original FOI request. In another bizarre twist SMBC told the Tribunal that the second fee earner had voluntarily gone to London on "a non-working day" so that - apart from the train fare - the taxpayer suffered no loss!
Incidentally SMBC has form for this sort of nonsense. Maria Price - a solicitor formerly employed by SMBC and now at Devon Council - "represented" the Council political Leader at a police interview in respect of a purely personal matter. Sandwell doctored her records - seemingly with her knowledge - to show that she was on holiday that day and claimed that she had been present at the police interview as a gesture of goodwill to the political Leader.
Despite the obfuscation SMBC finally admitted that (1) there had been double attendances only on very rare occasions; (2) at least two of those occasions were hearings involving Mr Saunders: (3) Other than any records on individual files there was no management of central billing records showing double attendances and (4) SMBC did pay for the train fare for a second solicitor to attend the McNally hearing but she went in her own time and there was no “cost” to the taxpayer for her attendance. Curiously Sandwell belatedly admitted in a consent order that this double attendance was “authorised” by management although seemingly without any record being kept that would be disclosable under the FOI.
Comment
Although local authorities claim to model their operations on commercial firms it is clear that one, at least, is an absolute shambles in respect of time management. Tour has no idea where his senior solicitors are nor that they are sometimes wasting taxpayers’ funds for no reason. Tour also wasted taxpayers money on paying for a second solicitor to travel to London when she was not actually working.
It is an amazing coincidence that the only known examples of doubling-up occurred in incidents involving Mr Saunders during a period when Tour and his colleagues have been pursuing a vendetta against him.
Clearly the case management systems utilised by Sandwell (at least) are not fit for purpose as a management tool. It seems bizarre that modern systems cannot record time spent in travel to, and attendance at, hearings.
Now that people are increasingly working from home it is maybe not so important for fire safety and/or management purposes to know where staff actually are. Most firms have logging in and out records for their offices but it does seem odd that Council management would have no record if a solicitor was attending a hearing - either from the office or from home.
On a brighter point - at least if you are a SMBC Solicitor - “Big Brother” is not watching you!
* Further details of Tour's approach to the position of Monitoring Officer can be found at "Monitoring the Monitoring Officer - A Case Study" at:
When the Secretary of State for Levelling Up, Housing and Communities appoints commissioners pursuant to a statutory intervention, they are "trusted" to decide what, if any, records they keep.
Background
The current Secretary of State, Michael Gove, ordered an intervention at Sandwell Metropolitan Borough Council (SMBC). He appointed Kim Bromley-Derry* (KBD) as the lead Commissioner, who was already in situ as the Council's Interim Chief Executive (ICE). As ICE, KBD and others rigged the appointment of Imogen Walker, a crony of Sir Keir Starmer, to a post he and the others newly created, "Interim Head of the Leader's Office".
KBD purported to use the authority delegated to him by the Council to create the new position without going through the usual channels. In a response to a Freedom of Information Request, SMBC confirm that he made no record whatsoever of the alleged use of his delegated authority, and also ensured that no other records were made (or, at least, kept) by the Council relating to either the creation of the post or the subsequent selection of Ms Walker to it.
The complaint and reply
A complaint was forwarded to the Secretary of State asking why he came to appoint KBD giving this egregious failure to maintain any, let alone any adequate, records (and parts of the scandal were already in the public domain). A spokesperson for Michael Gove responded simply that KBD has "extensive experience in local government" which, seemingly, absolves him from any misconduct. Mr Gove could not consider matters which occurred whilst KBD was ICE as this was a matter for the Council alone. But the spokesperson further stated that Gove "trusted" KBD to carry out his role as a Commissioner and, in that regard, it was entirely up to him to "keep records as he considers appropriate". Seemingly, that includes keeping no records at all.
Comment
The Freedom of Information Act 2000 (FOIA) is being undermined in many ways. When the governance of local authorities is so ramshackle (at best) that the Secretary of State can be cavalier in respect of the requirement to maintain any or any proper records this is most concerning - particularly where, as here, an intervention was necessary in a council riven with corruption. This shoulder-shrugging approach to the legal requirement to maintain proper records in alarming and wholly inappropriate - not only thwarting the FOIA but throwing local authorities open to legal challenges.
This comes on top of recent concerns relating to the use by councillors and officers of messenger apps to keep deliberations "off the record" and so also undisclosable via the FOIA. (A course of action favoured, incidentally, in Sandwell Council to facilitate the corruption there.)
* The Secretary of State also kindly permitted KBD to continue as a Director of McLaren Construction during the intervention period.
Following a case before the Information Rights Tribunal it is now known that Anya Proops KC (then QC) advised a Local Authority (LA) that it could use public funds to fund litigation by an officer (i.e. employee) in respect of issues relating to the use of her personal (non-work) Twitter account.
Legislation
The Local Authorities (Indemnities for Members and Officers) Order 2004 permits a LA to pay for a member/officer to defend a defamation claim, but not to bring one, and also as follows:
Cases in which an indemnity may be provided:
5. Subject to article 6 below, an indemnity may be provided in relation to any action of, or failure to act by, the member or officer in question, which—
(a) is authorised by the authority; or
(b) forms part of, or arises from, any powers conferred, or duties placed, upon that member or officer, as a consequence of any function being exercised by that member or officer (whether or not when exercising that function he does so in his capacity as a member or officer of the authority)—
(i) at the request of, or with the approval of the authority, or
(ii) for the purposes of the authority.
Background
In 2017 the (then) Leader of Sandwell Council (Cllr Steve Eling - subsequently disgraced) was fighting for his political life following serious disclosures about him by a blogger. He re-employed a Solicitor, Surjit Tour, this time as Head of Legal and statutory Monitoring Officer. Tour was specifically tasked with destroying the blogger. Following threats of legal action by Tour he instructed external solicitors and “specialist Counsel” to pursue a claim of harassment against him (no defamation action could be considered as the blog posts were factually true). He secured the Labour Council’s agreement to set up a £300,000 fund for this purpose.
The Council appointed not one but two firms of external solicitors (for reasons unknown) and instructed Ms Anya Proops and Junior Counsel. Proops QC (as was) supplied an Opinion (the 2018 Opinion). No litigation was forthcoming following this. Two Freedom of Information Act (FOIA) requests determined that Tour spent £49,993.50 + Vat on these external lawyers as part of this vendetta. Despite using two firms of external Solicitors, Tour’s internal legal team also spent an incredible 279 hours and 54 minutes on this crusade.
Facts
In 2019 Sandwell employed Lisa McNally as Director of Public Health - a politically-restricted post (see below) with a salary of between £105,000 and £109,000 per annum. McNally was a prolific user of a personal Twitter account and, during the Covid pandemic, her tweets brought her to the attention of the blogger, who wrote critical posts concerning her social media output. In early 2021 she conspired with Tour and the (now-disgraced) Sandwell Chief Executive, David Stevens, to bring an harassment action against the blogger. She brought the action in her own name, but Sandwell’s own internal Solicitors placed themselves on the court record as acting for her, and also funded her. Tour did not advise McNally, or the Council (effectively his “client”), that she should use her own resources if she wished to start legal action in respect of her personal use of Twitter (again, for reasons unknown).
The blogger was aware that the (then) Acting Leader of the Council, Cllr Maria Crompton, authorised the use of taxpayers’ funds for this adventure. Both she and the Council refused to provide any reason for this. Tour, and the political leadership, then blocked a FOIA request into the advice given to the Acting Leader on the ground of “legal professional privilege”, and the ICO supported this contention. The blogger appealed to the Information Rights Tribunal.
In a consent order concluding the Tribunal issue, Sandwell admitted that Surjit Tour himself had informed the Acting Leader that the 2018 Proops Opinion permitted the Council to fund - and indemnify - McNally despite the fact that the issues arose from her use/misuse of her personal Twitter account. As above, he did not advise Crompton that McNally should use her own funds to pursue her action (and the Cllr seemingly did not raise this).
Sequalae
Proops QC (as was) of 11KBW was not instructed in McNally’s action. Instead Tour made the disastrous decision to instruct Aileen McColgan QC (now KC - also of 11KBW) instead. McNally, via McColgan, applied for an emergency injunction with penal notice against the blogger to be followed with a permanent injunction. McColgan added a bizarre claim for breach of McNally’s data protection rights claiming that it was impermissible for the blogger to comment on issues which McNally herself placed on her personal Twitter site. Between the end of the protocol period and the issue of proceedings - and despite the fact that her case was being publicly-funded - McNally added a claim for £10,000 personal damages.
The blogger has disclosed multiple examples of corruption and wrongdoing at Sandwell Council (currently in Government “special measures”) the majority of which involved male councillors and officers, but McColgan chose, for whatever reason, to plead the case as a “misogynistic” attack on a female employee.
The blogger instructed Mark Lewis of Patron Law and Richard Munden of 5RB. Almost immediately McColgan dropped the emergency injunction application but continued to seek a permanent injunction, damages for the “data breach” and personal damages for McNally. Lewis immediately applied to strike out the action. Shortly before the hearing Ms McColgan also withdrew the data breach claim. Following an oral High Court hearing the case was duly struck out. On the basis of the 2018 Proops Opinion, and Tour’s statement that her advice permitted the Council to use taxpayers’ funds for this third party litigation, Tour caused a further substantial loss of public funds - £49,747.20 to the blogger and £53,446.57 ex. Vat in respect of the Council’s own costs supporting McNally’s personal litigation (and this latter sum is almost certainly an understated figure).
Comment
The case law is very sparse on the use of the statutory indemnity but there are published Opinions online from James Goudie (QC) and Tim Kerr (QC) relating to the Welsh iteration of the Order. (Both Leading Counsel at the time were members of the same chambers - 11KBW - as Proops and McColgan.)
Clearly when Ms Proops was instructed in 2018, McNally had not even been employed by Sandwell. It is hard to see how Proops was able to conclude that the statutory Indemnity extended to officers when acting in their personal capacity -something s.5 of the Order (set out above) does not appear to permit. Nevertheless, Tour has informed the Information Rights Tribunal that was her Opinion (at least in 2018).
It is noteworthy that Sandwell Council refused to accept vicarious liability in respect of the contents of McNally’s personal Twitter account.
Clearly all users of social media need to exercise caution when engaging with the personal social media accounts of members and employees lest they face oppressive, taxpayer-funded, litigation. This begs the question of what would happen if it is not clear that a social media user is even employed by a local authority when discussing Council issues? As far as members are concerned there are also numerous incidents of abusive councillors avoiding formal standards complaints on the basis that their social media use is purely “personal”.
We are inviting the Secretary of State for Levelling Up to review the terms of the statutory indemnity since it is our view that the 2004 Order did not contemplate taxpayer-funded litigation by local authority employees in respect of their personal social media output - yet that view is what Tour, and other Sandwell Solicitors, told the Tribunal was precisely what Ms Proops contradicted in her Opinion.
And finally …
This case threw up another aspect of legal interest. As above, McNally agreed to be employed as a politically-restricted officer, but used her personal Twitter account to air political issues - an issue the blogger commented upon. Tour actively backed her right to do this, and McNally herself told the High Court:
“There can be no doubt that the role of DPH at this time [the Covid pandemic] does draw one into issues that others may label as political. However, it is not political for a DPH to highlight and respond to problems in the national response to a pandemic (indeed, it could be perceived as an inappropriately political act to remain silent when we do identify problems”.
Whether she aired her frequent criticism of the Government via official channels is not known, but she certainly considered it legitimate to do so via her personal Twitter account.
We are also raising this issue with the Secretary of State since, once again, the current legislation is seemingly not fit for purpose, and some local authority employees apparently consider that they can simply ignore the relevant provisions.
