La Bloggeuse with Mayor Shepherd, the People's Mayor of Barnet
MORE LEGAL GAFFES COME TO LIGHT IN DISFUNCTIONAL BARNET
A Tale in Two Blogs: Blog the First
Barnet's Constitution, Ethics and Probity Committee (aka CEPC pronounced SEPS) met on 25 November. It is a committee without razzmatazz; it isn't filmed; the public gallery is usually empty, though this has nothing to do with the Conservatives' penchant for private meetings behind closed doors, but rather that it is considered to be unutterably boring down to its very name. But allow me to recommend it to you, not merely because I am lucky enough to be a Member, but because it lies at the very heart of the Council. Its role is to continually scrutinize, test and amend the rule book: the procedure, the protocol of how the Council operates that is the Barnet Constitution.
At the first CEPC meeting of this administration in August, and my first meeting as a Member of the Committee, the Conservative Chair, Cllr John Marshall expressed the hope that the committee would run on consensus, but as I ventured to ask, doesn't there have to be agreement in order to have consensus?
There were some fundamental political issues on the agenda last week: fairness, democracy, transparency (Blog 2). And there were shock revelations of yet more incorrect advice from the former Monitoring Officer and the Council's private lawyers, HB Public Law that led to the Council acting in contravention of its own Constitution when councillors appeared before the Council's disciplinary committee, the Leaders' Panel. So as you weren't there and no video exists on Youtube, in the cause of transparency in which I firmly believe, here is what happened: the business and how it turned out - a tale in two blogs.
If you remember, the expert local government lawyer, Claer Lloyd-Jones, wrote in her recent independent report about Barnet of 14 September 2014:
o There is no-one who understands local government law in depth at Barnet. Barnet employs no lawyers.
o There are staff in key roles in the Governance structure in Barnet who are inexperienced in governance matters.
o There are staff in key roles in the Governance structure in Barnet who are inexperienced in governance matters.
Ms Lloyd-Jones' report explains that Barnet's Monitoring Officer is also responsible for Legal Services provided by the private company HB Public Law that Barnet shares with Harrow, and who Tory Council Leader, Richard Cornelius can be seen waxing lyrical about on old Youtube footage. HB Public Law did not escape criticism in Ms Lloyd-Jones report.
Blunders in Governance procedure that resulted from the stumbling in the dark of a legally unqualified, inexperienced Monitoring Officer relying on a private, shared, remote, hands-off, legal service continue to pop up to plague the Council and this was evident at the CEPC meeting.
In response to a Members' Item from Labour Group Leader, Alison Moore, in which she proposed in the cause of fairness that the Constitution be amended to: "Ensure that any councillor subject to a complaint under the Code of Conduct is allowed access to the Independent Person (an independent adviser who examines the evidence and sits on the Panel but does not vote) throughout the process" there came a shocking revelation, nothing new at a Barnet meeting.
Before any discussion or vote could take place on Alison Moore's amendment, John Marshall made a rather sheepish announcement. He had been informed, he said, by new Interim Monitoring Officer, Peter Large, that no amendment was necessary because the two councillors who have recently come before the Leaders' Panel, one Conservative, one Labour, were denied their Constitutional rights of access to an independent advisor because Barnet Governance and HB Public Law wrongly advised that the councillors did not have that right.
So once again, the Council had been given the wrong legal advice by Barnet Governance and their supporting lawyers and had acted in contravention of the Constitution. Cllr Marshall merely said in explanation: "It was a mistake and I apologise, but it wasn't me", smiling as if he were cracking a joke.
And this wasn't all. Conservative Councillor, Joan Scannell repeated the opinion expressed at the Panel's hearing by the Independent Person that the case against the Labour Councillor should never have been brought before the Panel as there was no case to answer and she added that it was a great pity that this had happened. Yet another found-to-be-wanting decision of Maryellen Salter who advised that the complaint should go ahead, but on the day the hearing was halted almost as soon as it began. The Conservatives deftly sweep these matters under the carpet, but this should not be allowed. By being in denial they are putting the Council and the Borough, in fact all of us, at risk and make it impossible to mend the past in order to create an honourable future.
Bad advice to the Council is only part of the story. I noticed that in the bundle of documents handed to Ms Lloyd-Jones to aid her in her preparation of the Report, there was listed an
"Unsigned and undated Side Agreement re Deputy Monitoring Officer and additional support to Barnet Monitoring Officer HBPL Business Plan 2014-17" - a larger role = more participation to be taken on by HBPL.
This is what Ms Lloyd-Jones had to say about the document:
4.13 A side Agreement to the IAA [Inter-Authority Agreement] was drafted at this time which adds acting as DMO [Deputy Monitoring Officer], corporate, governance and MO [Monitoring Officer] support to the services to be provided under the IAA. This agreement remains unsigned by Harrow. It is imperative for the document to be signed as much of the work it refers to is being carried out in practice.
Although the document is not dated, Ms Lloyd-Jones roughly dates it "at this time", ie the time when committee proportionality was being considered for the new administration around the time of the Full Council on 2 June 2014.
For a law firm to fail to sign an Agreement and for a Council not to ensure that it is signed seems to me to indicate how sloppy and unsafe practice has been, and also how unmonitored. No signed obligation or liability on behalf of HB Public Law to the Council existed to cover these additional duties which were being carried out in practice. It was this law firm that was advising the Barnet Monitoring Officer. The indication is that the Agreement was signed by Barnet but not by Harrow. So was it the case that having signed the Agreement, Salter went on leave never to return leaving no one in Barnet to get the Agreement signed by HB Public Law as there was no-one acting as in-house Monitoring Officer. Peter Large arrived without announcement around two week's later as "interim legal and governance adviser" and was appointed Interim Monitoring Officer after another two weeks on the day of Salter's departure. Even in the absence of a Barnet Monitoring Officer, HB Public Law could have taken the initiative to countersign the form but it appears that for a while those in charge were content for nothing to be done. Who was to blame for this, as it could not have been the absent Salter. Was there no procedure at Barnet by which the Monitoring Officer's role was managed in the absence of a Monitoring Officer? Has the Agreement now been signed, and if so, when?
Cornelius makes it clear in a written answer to Council that Salter carried out no work for the Council from 12 September to 9 October. So who, if anyone, was carrying out the day-to-day in-house legal duties in Barnet in that time? It was only when I asked at another meeting who had been acting on Salter's behalf that I was told by the CEO that Jessica Farmer, Head of Legal Practice at HB Public Law "had been nominated by Salter".
There are so many unanswered questions and those in charge refuse to take responsibility for allowing this untenable regime to continue unchecked for so long. How many more wrong decisions based on wrong advice is going to be discovered that puts the Council at risk and exposes it to challenge and compensation? Shouldn't all advice given during this period be challenged and tested? At Council I asked that this should happen. Cllr Cornelius replied:
"This sounds like a personal attack on a former officer. Full legal advice was always available. A new Monitoring Officer is now in place."
There is no question of a personal attack from me but rather a legitimate and justified challenge of advice given to and acted upon by the Council when Salter was in post. It is rather the action to remove Salter from her post that can be seen as an attack from those who decided that she should take the rap. Yet they seem to have no intention of parting company with HB Public Law who were there to provide Salter with legal advice and failed miserably in the disastrous case of committee proportionality.
It is clear from the report that legal advice was not always available and Barnet expressed concern about the remoteness of HB Public Law (Report: 4.16). And when advice was not forthcoming the Monitoring Officer went ahead without it, and even when it was forthcoming she was left to interpret it in spite of her lack of legal knowledge. The report states that "the Monitoring Officer is also responsible for Legal Services provided by HBPL" (4.12). She couldn't really win.
So where do we go from here? Richard Cornelius has said Ms Lloyd-Jones’ report was “fair enough” and it was now “a question of how we move forward”. As we have seen, just one instance of wrong legal advice can be catastrophic. Interim Monitoring Officer, Peter Large, for whom Barnet is a 2-day-a-week add-on to his busy full-time job at Westminster Council is now in place for an indefinite period. A permanent appointment will be the task of the Remunerations Committee. Large was appointed solely by the CEO in consultation with Richard Cornelius which is their constitutional right but then they were at the top of the responsibility chain during this whole period and it seems they were perfectly satisfied for legal matters in Barnet to be dealt with on a wing and a song.
And after all that has happened, after Ms Lloyd-Jones has said that most local authorities appoint a lawyer as Monitoring Officer, Richard Cornelius has refused Labour's request that there will be a requirement for the next Monitoring Officer to be legally qualified. Salter's own recruitment in 2013 has been the subject of discussion as it appears she was the only person to be interviewed for the post of Monitoring Officer. She is an Auditor but took over from an in-house lawyer with years of experience of Barnet Council yet there was no requirement for legal qualification or experience in the job description though there was for an auditor. But then another senior Conservative, Councillor Anthony Finn, has justified Cornelius's decision by insisting that qualifications are unnecessary as "all that is needed is a clear head". Would you put the clearest-headed dentist in charge of brain surgery? But then this is the man who, like his Tory colleagues at the CEPS meeting, voted in favour of unconstitutional meetings on budget cuts being held in private because residents would be scared when matters such as switching off street lights were discussed.
So let us return to the two councillors who are victims of all this chaos, those who were denied their right of access to an independent person because of a dysfunctional system. Do these councillors get an official apology? Are they to be compensated in any way? Will they demand compensation and of what kind? How long has the Council known that this advice was wrong? It appears the two councillors have not been informed of the injustice done to them. And this error may never have come to light if Cllr Moore had not submitted her Member's Item that forced an admission.
The people of Barnet deserve better than this headless-chicken culture with no accountability. No lessons have been learned, no fault acknowledged, no effective remedy prescribed to heal Tory Barnet of its self-inflicted wounds. Maryellen Salter is long gone while others cling on with everything to lose hoping they've done enough to cover their tracks, and time bombs are ticking.
COMING SOON TO A LAPTOP NEAR YOU:
Our day in Coventry: Capita and the Polo factor
More from the CEPS meeting: Tories vote to keep public out of unconstitutional meetings on budget & cuts. Says one Tory: People would be scared to hear discussion on cutting street lights.
·  These were the other related docs in the list: Committee report to Barnet Council establishing the shared legal service 4th April 2012; Committee report to Harrow Council establishing the shared legal service 4th April 2012; Inter Authority Agreement re HBPL 17th August 2012; Committee report to Barnet Council establishing Deputy Monitoring Officer as HBPL- 29th January 2013