Bates Wells and Proops KC on council employee indemnities

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

Background

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

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

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

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

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

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

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

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

Bates Wells

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

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

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

Comment

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

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

rottencouncil@gmail.com

Ian Crow Multimedia Limited

LGA "Guidance" abused to protect errant councillors

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

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

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

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

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

The LGA “6-month” guidance for standards complaints

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

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

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

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

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

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

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

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

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

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

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

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

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

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

rottencouncils@gmail.com

Ian Crow Multimedia Ltd

SRA - multiple racist slurs not worse than a single one

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.

rottencouncils@gmail.com

Proops KC on Local Authority Employers' Liabilty

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.

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

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.

rottencouncils@gmail.com

Local Authority Legal Case Management Systems

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:

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

rottencouncils@gmail.com

Michael Gove: Commissioners need not keep records

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.

rottencouncils@gmail.com

Anya Proops KC extends scope of local authority legal indemnities

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.

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