EXCLUSIVE: Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report

from: Norman, Bill D. billnorman@wirral.gov.uk sender time: Sent at 4:10 PM (UTC). Current time there: 01:34. to: john.brace@gmail.com cc: “Foulkes, Steve (Councillor)” , “McLaughlin, Moira (Councillor)” date: 12 December 2011 16:10 subject: RE: question for full Council (12th December) mailed-by: wirral.gov.uk Dear Mr Brace Thank you for your email and Question to which the Leader … Continue reading “EXCLUSIVE: Bill Norman (Borough Solicitor)’s advice to councillors on publication of Anna Klonowski Associate’s report”

from: Norman, Bill D. billnorman@wirral.gov.uk
sender time: Sent at 4:10 PM (UTC). Current time there: 01:34.
to: john.brace@gmail.com
cc: “Foulkes, Steve (Councillor)” ,
“McLaughlin, Moira (Councillor)”
date: 12 December 2011 16:10
subject: RE: question for full Council (12th December)
mailed-by: wirral.gov.uk

Dear Mr Brace

Thank you for your email and Question to which the Leader will respond tonight.

Please find attached a copy of my advice to Members on the subject of publishing Ms Klonowski’s draft report.

Regards

Bill

Bill Norman
Director of Law, HR and Asset Management
Wirral Council

Tel: 0151 691 8498
billnorman@wirral.gov.uk

Visit our website www.wirral.gov.uk
Please save paper and print out only what is necessary
From: John Brace [mailto:john.brace@gmail.com]
Sent: 01 December 2011 15:15
To: Norman, Bill D.
Cc: Foulkes, Steve (Councillor); McLaughlin, Moira (Councillor)

Subject: question for full Council (12th December)

Dear Bill Norman, Cllr Steve Foulkes & The Worshipful the Mayor of the Metropolitan Borough of Wirral and Rock Ferry Councillor Moira McLaughlin,

I have a question for the Chair of the Corporate Governance Committee/Cabinet Member for Finance & Best Value Cllr Steve Foulkes:-

There has been much public interest in the (as yet unpublished) AKA (Anna Klonowksi Associates Ltd) report into issues that need to be remedied at Wirral Council. My personal view is that Wirral Council needs to publish the report, reassure the public what it’s doing differently now and restore its tarnished reputation as a result of the events that led to the report being commissioned.

Please could you answer:

a) what date the report will be published on and whether changes are to be made between the draft version and final version (if so the reasons why) and
b) an update on changes and decisions made since the report, as a result of the report becoming available in draft form, including progress (which includes consultation) already made and how the changes will benefit Wirral Council, its staff, its councillors and the public?

John Brace


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From: "Norman, Bill D." <billnorman@wirral.gov.uk>
To: "Councillors" <Councillors2@wirral.gov.uk>
Cc: "Executive Team" <ExecutiveTeam@wirral.gov.uk>,
"Delap, Mark" <markdelap@wirral.gov.uk>,
"Moss, David S." <davidmoss@wirral.gov.uk>,
"Tour, Surjit" <surjittour@wirral.gov.uk>,
<anna@akalimited.co.uk>,
"MacCallum, Kevin" <kevinmaccallum@wirral.gov.uk>,
"O’Brien, Richard" <richardobrien@wirral.gov.uk>

Date: Mon, 12 Dec 2011 15:45:51 -0000
Subject: Legal Advice on the Possible Publication of Anna Klonowski’s Preliminary Draft Report

Dear Councillors

I am emailing you to set out my legal advice on the question of publishing AK’s preliminary draft report, as such action is called for in a Notice of Motion to be considered at tonight’s Council meeting.  I have also had the opportunity to receive from Anna Klonowski (‘AK’) an update as to her progression of the Right to Reply (‘R2R’) process.  This is set out in bold italics towards the end of this email.

Only a very small number of people have received a preliminary draft of AK’s report.  However, all persons receiving it did so on the strict understanding that that was a preliminary draft; that it was subject to strict confidentiality; and that no one could disclose the contents of the report until the R2R process is complete.  All recipients of the draft report (including me) signed undertakings to this effect.

The R2R process is in place to ensure that, before AK’s report is finalised, those criticised in the preliminary draft are given a fair opportunity to respond and to have their representations fairly reflected in the final version.  This principle of fairness is a fundamental tenet of Natural Justice.  Both AK, as the author of the report, and the Council, as the commissioning public body, have a duty to all people impacted by the report to ensure that it is as fair and accurate as can reasonably be achieved. Publication of the preliminary draft report would subvert the R2R process and is likely to deny Natural Justice to the people impacted by the report.

You will see from AK’s comments below that some of the R2R submissions will require her to change some of the facts and, possibly, her conclusions as set out in the preliminary draft report; or to add further information to ‘more accurately reflect the balance of opinions amongst the parties’.  As a result, the preliminary draft report, today, cannot be described as a comprehensive, wholly accurate, up-to-date, or fully balanced statement of AK’s views.

It has been suggested to me that the continuing delay in finalising the report might seriously prejudice one or more third parties. I have discussed this suggestion of possible prejudice, with the Acting Director of Adult Social Services (who has also read the draft report).  The Acting Director of Adult Social Services has informed me that he has no grounds for believing that any third party is being seriously  prejudiced as a result of the AKA Report being delayed by the R2R process.

 

Given the extent to which a number of persons criticised in the preliminary draft report have engaged with the R2R process, the publication of a now out-of-date preliminary draft of AK’s report would be highly likely to make those persons (in particular) much more inclined to take legal action against the Council.  In my view, to publish the draft report would be unreasonable and would contravene the legitimate expectations of those invited to participate in the R2R process: namely that the process would be conducted in good faith to a conclusion, prior to any publication.

In my view, the publication of a now out-of-date preliminary draft of AK’s report would be highly likely to provoke immediate legal action to restrain the Council from publishing (i.e. an injunction).

Moreover, given that the preliminary draft report cannot be described today as a comprehensive, wholly accurate, up-to-date, or fully balanced statement of AK’s views, it is much more likely, if the preliminary draft report is published, that the Council will face legal claims by those criticised in the draft report (for damages for defamation).

Having said all this, I fully recognise that there is obvious Member and public interest in bringing this matter to a conclusion as soon as possible: but that should not be at the cost of subverting the entirely proper R2R process.

Finally, I need to make clear that, if Council were to ‘call on’ the Leader to publish the preliminary draft report, the decision whether to publish or not would still be an executive decision for the Leader.  Council cannot ‘instruct’ the Leader to publish, it may merely ‘request’ (or ‘call for’) such action.  If, notwithstanding my advice, a majority of Members at Council were to ‘call on’ the Leader to publish the preliminary draft report, my unequivocal advice would remain that it should not be published, for the reasons stated above.

Set out below is AK’s update as to progress with the R2R process.  In my opinion this clearly demonstrates that the R2R process is being conducted robustly and in a timely manner.

I can confirm that the Right to Reply process has progressed well and has been worthwhile in testing the conclusions I have reached and seeing whether those criticised can raise any evidence to make me re-consider any of my conclusions.  I have ensured that people have had sufficient time to respond and have given people more time when necessary without allowing them to abuse the process by delaying it without good cause. 

 

As a result of the process, one additional family has come forward and asked for their views to be taken into account and, representatives of some of the organisations subject to the R2R have been interviewed. The notes of some of these meetings have/are being considered with one individual undergoing an operation and the family concerned specifically requesting more time. I have therefore had to allow them until 14th December 2012 for the return of their meeting notes.

 

In addition, it should be noted that a significant amount of additional information was supplied by one of the R2R subjects and, unexpectedly an individual associated with one of the R2R subjects has come forward. Having sought legal advice, I am arranging a meeting and to take a statement.

 

I have already identified that some of the R2R submissions will in some regards require me to change some of the facts and possibly conclusions contained within my preliminary draft report or, add further information which will more accurately reflect the balance of opinions amongst the parties. There are also some points that have been raised by the R2R submissions that need to be put to either Mr Morton or other people/organisations which are the subject of the review. After seeking legal advice, there are instances where before forwarding the documents and/or drafting further questions based upon those R2R submissions I have asked certain persons/organisations to consider whether they should seek independent legal advice before authorising me to rely on those comments as they could give rise to a claim of defamation if the statements are viewed as not being true against the individual and/or organisation submitting the R2R response.

 

As the Council and I have agreed previously, the Right to Reply process is in place to ensure that those I have criticised are given a fair opportunity to respond before the report is finalised.  It does not mean that interested parties are able to see the draft report.  If draft conclusions are published to interested parties then this would undermine the whole concept of the Right to Reply process which ensures that due process is followed before the report is finalised. 

 

I have established in the reports I have already submitted that I will make strong criticism and comments where I feel it is appropriate.  I should emphasise that the Right to Reply process is in no way intended as an opportunity to soften my report.  It simply enables me to make robust conclusions after following due process.  I will consider all the evidence put before me, including that evidence submitted by those criticised, and only if necessary will I alter my report where further evidence justifies such a change.

If any of the above is unclear, or if you believe that I have misunderstood any matters, please let me know as soon as possible.

This advice may be shared with others, if you so wish.

Regards

Bill

Bill Norman

Director of Law, HR and Asset Management

Wirral Council

Tel: 0151 691 8498

billnorman@wirral.gov.uk
Visit our website www.wirral.gov.uk

Please save paper and print out only what is necessary

Employment & Appointments Committee (Wirral Council) 23/11/2011 Part 1, Declarations of Interest, Minutes

Present:
Cllr Jeff Green
Cllr Lesley Rennie
Cllr Peter Kearney
Cllr Mark Johnston
Cllr Paul Hayes
Cllr Adrian Jones (Chair)
Cllr George Davies
Cllr Steve Foulkes
Cllr Phil Davies

Officers present:
Chris Hyams
Andrew Mossop (Committee Clerk)
Tony Williams
Kevin Adderley
Others

Cllr Adrian Jones (Chair) said “Good evening” and asked for declarations of interest. Cllr Steve Foulkes declared a personal interest in item 8 (Appeals Sub-Committee Minutes) as the solicitor named was known to him.

Cllr Adrian Jones (Chair) moved the meeting on to the minutes of the meetings held on the 29th September 2011 and the 13th October 2011.

Cllr Jeff Green asked a question about page eight of the minutes in respect of the interim management arrangements. He asked for an update about “where we are”? He asked about the arrangements for the Policy Unit, which he had not been contacted about.

Chris Hyams updated Cllr Green on where the process was up to. However she said any discussion would affect staff in the room but they were completing the procurement process. She said the Policy Unit was the remit of the Corporate Governance Cabinet Committee.

Cllr Foulkes said it was one of the Key Lines of Enquiry (KLOE).

Cllr Jeff Green said he was conscious that everything was sequential, but could it be done in tandem? Did the procurement exercise have to be finished?

Chris Hyams said it absolutely had to finish and that was the intention, to meet the timescale.

Cllr Jeff Green said from the 29th September they were getting to the end of November, and asked if it would take a further six months?

Corporate Governance Committee 16/11/2011 (Wirral Council) Part 3 Work Program, Progress and Associated Issues

Cllr Steve Foulkes said that the terms of reference for [this] committee were clear and he would like to “make progress” and move onto item 3.

Jim Wilkie, Chief Executive referred to the ten key lines of enquiry (KLOE) as well as further discussion on the involvement of councillors. He said the report sets out who the lead officers are. He said he would pause to check the names of the officers were in line with the committee’s wishes.

Cllr Jeff Green said he was “surprised”. He referred to an email and said that the briefing looked like predetermination. He said the changes to the procurement rules were “not fantastic” and that he had had no time to read them. He continued by saying that Conservative Party councillors had spoken to him with suggestions and that he was not clear about the role of Lead Members. Cllr Green went into detail explaining his views on what Lead Members should be. He also said that the briefing was “not well handled”.

Cllr Steve Foulkes said that this had stemmed from a criticism that councillor involvement had not been enough, so key members had been established at the briefing. He said these lead members would be the conduit or champion and that it was the job of these to reflect views back. He explained that it wouldn’t be anything more than that. On accountability, he said councillors say it’s officer’s job, “just letting officers do it”, however he wanted to “get councillors involved at every level”. He appealed to councillors and referred to a letter from Cllr Phil Gilchrist about scrutiny.

Corporate Governance Committee 16/11/2011 (Wirral Council) Part 2 Work Program, Progress and Associated Issues

The committee considered item 3 Work Program, Progress and Associated Issues.

However Cllr Jeff Green went back to agenda item 2 (Minutes). He said as part of the minutes, the list of committee meetings was not agreed.

Bill Norman said there had been some confusion in the briefing. There had been discussion with each political group’s officers. The briefing had been done before the agenda [for this meeting] was finalised, so the schedule in Appendix 8 was different to the list. The minutes [of the meeting held on the 26th October 2011] reflected the previous list and he noted the revision.

Cllr Jeff Green said that they had been told he couldn’t make it and that his non-availability had been made known.

Cllr Steve Foulkes said there was no set of dates they could all attend.

Bill Norman said about the confusion in the briefings, they had tried to find out everyone’s availability but timescales were stretched. He apologised for the confusion.

Cllr Steve Foulkes joked that he wouldn’t do Christmas Day, but he would “do Boxing Day”.

Cllr Tom Harney said that the primary aim of this committee was not discussions, there were major decisions of Cabinet and they had to make some progress and look at it as if they were a statutory committee.

Cllr Steve Foulkes said they needed to make decisions, not make recommendations to Cabinet.

Jim Wilkie mentioned that because of Wirral Council’s constitution some decisions had to made by a meeting of all councillors.

Cllr Tom Harney said that they needed to look at how to alter decision-making.

Corporate Governance Committee (Wirral Council) 16th November 2011 Part 1, Declarations of Interest, Minutes

Corporate Governance Committee

Chair (Cllr Steve Foulkes)
Cllr Phil Davies
Cllr Adrian Jones
Cllr Anne McArdle
Cllr Ann McLachlan

In attendance (right to speak, not to vote or make decisions)
Cllr Jeff Green
Cllr Tom Harney

Officers
Ian Coleman, Director of Finance/Deputy Chief Executive
Jim Wilkie, Chief Executive
Bill Norman, Director of Law, HR & Asset Management
Others including committee clerk etc

The agenda and reports can be found here.

The meeting started with an apology from Cllr Foulkes who said he was “sorry to be late”. There were no declarations of interest. The committee then discussed the minutes of the Corporate Governance Committee held on the 26th October 2011.

Bill Norman mentioned that Cllr Tom Harney had communicated with him about the minutes which were in draft form. The draft minutes gave the impression that both Cllr Tom Harney and Cllr Jeff Green had been recorded in the minutes as members of the committee. However this would be changed to “in attendance”.

Cllr Steve Foulkes said he wanted “to set our stall out”, “not force to votes” and hoped the invite [to Cllr Tom Harney and Cllr Jeff Green] would be accepted in the spirit it was given. He then went on to talk about the “rules of engagement” and how they would “shape decisions”.

Cllr Adrian Jones said it would be “nice to get consensus”.

Cllr Steve Foulkes said he accepted the suggested changes [to the minutes]. The minutes with changes were agreed and the committee considered item 3 Work Program, Progress and Associated Issues.