Is freedom of the British press over as UK blogging enters the age of George Orwell’s “Ministry of Truth” (1984)?
Is freedom of the British press over as UK blogging enters the age of George Orwell’s “Ministry of Truth” (1984)?
Ministry of Truth George Orwell 1984 comment removed
As I run a blog, I will declare an interest at the start of this article in that I am the operator of this blog. Before anyone accuses me of bias again (I will point out that much of the below is an opinion piece based on a recent court case, legal changes and experience).
One of the things I enjoy about writing (and reading other blogs) is that people do leave comments (although many others read without leaving a comment). The United Kingdom is however not an ideal place to base a high-tech business, which is part of the reason that in an ideal world doing what I do, I wouldn’t be based at all in the UK but somewhere that doesn’t have such a peculiar regulatory environment.
Previously the UK was well-known for its “libel tourism” because of the way the courts here operated when it came to libel. However from past cases certain things can’t be libelled, such as a political party or a local council. Even on matters published abroad, in the past lawyers had preferred to sue in the UK because of the way the court system was here and how easy it was to win their case (and how disastrous financially for the defendant even if they won!).
A lot of the laws that govern the media in this country were based on print publications and arguments about censorship have raged for centuries. A lot of the laws were written before the internet actually happened and were frankly, well overdue for reform. Eventually reform came.
For an example of what used to happen, I direct you to the case of what happened involving Carmarthenshire County Council. Details of the judgement in Thompson v James & Anor ([2013] EWHC 515 (QB) can be read by following that link.
Please note this next bit is in reference to Wales (a country within the UK that borders the Wirral but has a different set of laws and legal system (as well as political system) to here in England).
A local blogger there, Mrs Thompson sued the Chief Executive of Carmarthenshire County Council Mark James, alleging that he had libelled her. This was in reference to a letter written from Mark James that referred to Mrs Thompson that was published on another blog (that is not the blog of Mrs. Thompson) that writes under the nom de plume madaxeman.
When sued, the Chief Executive of Carmarthenshire County Council used public funds to pay his legal costs (Carmarthenshire County Council had provided him with an indemnity for his legal costs) and his legal team also counterclaimed against Mrs Thompson for references made about Mr. James on her blog which he took exception to.
The court dismissed Mrs Thompson’s libel claim, but upheld Mr James’ counterclaim.
Although the audit bodies in Wales in relation to Carmarthenshire County Council have questioned the issue of whether using public funds for his employer to pay the Chief Executive’s legal costs in a libel lawsuit is actually lawful, Mark James is now vigorously pursuing enforcement of the court order he was granted against Mrs Thompson through a Land Registry charge on her property in respect of damages awarded to him and the defendant’s legal costs (paid for by the taxpayer).
Partly to prevent the courts getting completely clogged up with libel cases (because let’s face it if everyone who had ever had anything written about them untrue online actually filed a lawsuit with the court that would happen), whereas in the past somebody could sue not only the author of a comment, but the publisher and the editor as well, the law was changed. The UK ended up with a new libel law (Defamation Act 2013), which completely reformed the old libel laws, introduced defences of truth, honest opinion and publication on a matter of public interest and also new regulations were introduced that came into force on 2nd December 2013.
The new libel law also introduced a test that had to met. Any statement that was claimed to be defamatory had to have “caused or is likely to cause serious harm to the reputation of the claimant”. The new regulations are referred to as the Defamation (Operators of Websites) Regulations 2013 and cover comments left on blogs.
This blog (and comments left on it) fall under the new regulations as I’m the operator of the blog and am based in the UK. In theory if I wasn’t based in the UK but the people leaving the comments were, their comments would probably fall under the new regulations too.
In relation to user generated content (such as comments) on blogs, it means that now the operator of the blog (such as myself) is not liable if the operator of the blog follows the rather strict procedure laid down in the regulations when a complaint is made.
The regulations can be read online, but basically as an operator of a blog if a complaint (that falls within the regulations or even a defective notice) is made about a comment on my blog, I have to within 48 hours (assuming the commenter complained about actually has provided an email address) get in touch with the poster of the comment and they then have 5 days to respond. I also at this stage contact the complainant too.
If no response is received from the person who left the comment within 5 days, the comment is removed, otherwise I’m in breach of the regulations. The person who left the comment has five days to respond and the regulations give them a variety of options which partially determine what happens next. For example they can withdraw their comment in which case it is removed at that point. There are however other options also available to them.
Other larger technology businesses aren’t entirely happy with the current regulatory framework under which they have to operate here in the UK and have published transparency reports as to complaints received and outcomes. I have decided it is high time that I did this too, especially considering the views of the media on censorship.
Out of many thousands of comments currently on the blog since the new regulations came into effect on the 2nd December 2013 there have been complaints so far about two. Detail is provided below.
However, I’d like some feedback from you the reader as to the level of detail provided below and how open and transparent I am being. Are there things you think I should include in future reports, that I am not including currently?
Obviously in the case of complaint #1 I’m not allowed to republish the original comment as that has concluded and the author of the comment has withdrawn it. However there seems to be a general pattern emerging as to the type of stories I get requests for comments to be removed on, doesn’t there?
============================================================================================================== STATUS: Completed (comment removed 4th July 2014 see here)
Complaint number: Complaint #1
Comment author: John Hardaker
Complainant: Surjit Tour of the Metropolitan Borough of Wirral (Wirral Council)
Whistleblowers assembled in Committee Room 1 to hear apologies from Wirral Council over a toxic whistleblowing saga involving secrecy, national, local and regional government, internal and external audit, the private sector, ££££s, senior managers, contracts and Wirral Council
Whistleblowers assembled in Committee Room 1 to hear apologies from Wirral Council over a toxic whistleblowing saga involving secrecy, national, local and regional government, internal and external audit, the private sector, ££££s, senior managers, contracts and Wirral Council
Nigel Hobro (standing) addresses the Audit and Risk Management Committee of Wirral Council 8th October 2014 L to R Cllr Adam Sykes, Cllr David Elderton, Andrew Mossop, Surjit Tour, Nigel Hobro (c) John Brace | still taken from video
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Above is a playlist of all parts of the Audit and Risk Management Committee (Wirral Council) meeting of 8th October 2014 held in Committee Room 1, Wallasey Town Hall starting at 6.00pm (apologies for recording problems)
Audit and Risk Management Committee
Cllr Jim Crabtree (Chair, Labour)
Cllr Ron Abbey (Vice-Chair, Labour)
Cllr Paul Doughty (Labour)
Cllr Matthew Patrick (Labour)
Cllr John Hale (Conservative spokesperson)
Cllr Adam Sykes (Conservative)
Cllr David Elderton (Conservative)
Cllr Stuart Kelly (Lib Dem spokesperson)
The Audit and Risk Management Committee of Wirral Council met for a special meeting about BIG/ISUS on the evening of 8th October 2014 whilst a thunderstorm raged outside Wallasey Town Hall. This was a continuing from its adjourned special meeting about the same topic on 22nd July 2014. For details of what happened at its meeting of the 22nd July 2014 see my earlier blog post Incredible first 5 minutes of Wirral Council councillors’ public meeting to discuss BIG & ISUS investigations.
The meeting started with a minute of silence for Mark Delap. Mark Delap was one of the Wirral Council employees that used to take minutes at its public meetings and had died recently.
After the minute of silence was over, the Chair asked for declarations of interest.
Cllr Matthew Patrick declared an interest due to a friendship with Nigel Hobro’s son (Nigel Hobro is one of the whistleblowers and spoke during the meeting itself).
Surjit Tour gave some brief advice to Cllr Matthew Patrick as to whether his interest was personal or prejudicial.
The Chair thanked Surjit Tour for the advice he had given to Cllr Matthew Patrick.
The Chair, Cllr Jim Crabtree then explained that there had been a lot of allegations since the issue had first been raised in 2011. There was a large volume of paperwork for the meeting, however details were redacted to protect businesses and companies. Also the names of officers and other people were blacked out. He also referred to commercial sensitivities and how they had gone to proper steps to protect identities.
He reminded people of the risk of legal challenge and Wirral Council’s liabilities. Cllr Crabtree asked everyone not to name names and continued by saying that any issues Wirral Council officers had addressed, they had done on behalf of the Council.
Cllr Stuart Kelly asked a question on the information that was redacted. He referred to a challenge to paragraph j, that was redacted in the papers to the July meeting, but was now provided. He wanted assurance from the legal officer Surjit Tour that the redactions were only in the categories as just outlined by the Chair.
Mr. Tour explained that the redactions had taken place to make sure that nobody by reasonable inquiry and information already in the public domain could piece together who or what the redacted information referred to and who the people redacted were. He added that in some cases it was unfortunately necessary to redact a lot of information mindful of what was already in the public domain, people could “fill in the gaps” which would expose Wirral Council to a liability.
The Chair invited Nigel Hobro to speak for at most fifteen minutes.
To be continued…
However below are some of my personal observations about this meeting I’ve started writing up above and a bit of a compare and contrast with two different special meetings of the Audit and Risk Management Committee held years apart (but both dealing with Wirral Council’s response to whistleblowers (one internal, one external).
It shows how history has a habit of endlessly repeating itself and is based on my opinion as one of the few people who was actually present at both meetings.
There are similarities between this public meeting and an earlier public meeting many years ago of the Audit and Risk Management Committee to decide on a response to the whistleblowing of former Wirral Council employee Martin Morton. Back then (years ago) there were arguments by politicians over a series of meetings over how much money should be paid back to those that were overcharged and to what year you go back to with the refunds.
Even when refunds were agreed by politicians, Wirral Council took so long that some of the people involved had died and in order cases (the ones that were still alive) the amounts were so large, that Wirral Council officers didn’t want to pay the people involved because they thought it would have a knock on effect on their benefits and officers doubted that some of the people had the capacity to be able to look after their own financial affairs.
Sadly the decision back then was fudged (which is partly what led to the problems later). Martin Morton’s concerns were also far, far wider than the overcharging issue, his concerns also involved allegations of the misuse of public money to fund organisations with links to serious and organised crime, serious allegations of serious crimes against vulnerable people who had apparently at the time not been investigated thoroughly enough, woefully poor corporate governance at Wirral Council, terribly weak political oversight due to put it frankly chaos back then and ultimately Mr Morton paid a personal price because people in Wirral Council tried to repeatedly punish him for daring to blow the whistle. Due to the large financial amounts involved, Cabinet had to sign off on the large expenditure that resulted.
One day before the AKA report was finally released to the public, the two middle managers involved in this matter were each paid a six figure sum each to leave Wirral Council.
At the earlier meeting (and at least one person on the Audit and Risk Management Committee is the same person as back then), the Chair back then accused one politician (Cllr Ron Abbey) of either not reading the papers for the meeting as they were asking questions that were already answered there or of completely misunderstanding what they had read (if they had read them). At this time the Chair was of a different political party to the Labour councillor (Cllr Ron Abbey) & in the interests of impartiality (with absolutely no offence meant towards one of my local councillors Cllr Jim Crabtree) many other local authorities have an unwritten rule that the Chair of the Audit and Risk Management Committee is not from the same political party as the ruling administration to ensure independence.
Knowing Cllr Crabtree as I do, I know that even if a councillor stepped out of line at a meeting he was chairing, even if the councillor was from the same political party as he was, Cllr Crabtree’s personality is such that he would frankly realise that it’s in the “public interest” to hold his fellow councillors to account even if he would have to be careful how he did this in public.
After it seems part of the reasons why Labour got a small majority on Wirral Council is because councillors from that party woke up the news that the Wirral public expected them to hold other politicians to account in public even if these were other councillors from the same political party.
Bill Norman (who left in somewhat mysterious circumstances in 2012) was the legal adviser to that earlier Audit and Risk Committee meeting years ago, not Surjit Tour as it is now. The issue of blacking out all the names (and other details) in the published papers was addressed by Bill Norman then with broadly similar reasons given to those given by Mr. Tour many years later. However I will point out that the culture of legal practice is such that confidentiality, especially when it comes to active proceedings is extremely important to maintain!
At the time this written material authored by Mr. Morton included in the papers for the meeting was also redacted, so this aspect of whistleblowing hasn’t changed much at all over the years at Wirral Council.
Wirral Council, back then and as it seems now has a fear of being sued. Although if they were open and transparent wouldn’t Wirral Council welcome judicial oversight of their decisions as it would give Wirral Council the chance for someone independent to look at it and the opportunity to defend themselves in court if they had done nothing wrong?
Perhaps it’s unfair to say a fear of being sued, it’s a fear at Wirral Council of being sued and losing and the results that flow from that which could be a combination of large financial penalties (or other things) as well as the fact that court reporters such as myself or the publications they publish in can’t actually be sued under British law for court reporting as long as we comply with the few rules that apply as court reporting attracts absolute privilege. All court hearings whether public or private are recorded by the court on tape anyway and in theory transcripts can be ordered.
Some may say for a large local Council (covering a population of ~320,000), whilst obviously they have their own organisational reputation to consider, that they seem unduly concerned at times at reputation management (although this is also a preoccupation of political parties) rather than dealing with matters in an entirely open and transparent way. There is a blurry line between the individual reputations of senior managers and politicians on one hand and the organisational reputation of the organisations they are either employed by or are elected to represent the views of the public at.
Some of the reports that went to the most meeting the day before yesterday, have been the subject of previous articles by me and FOI requests.
You can read my FOI request (25/8/13) for the report on ISUS here, which was refused on 23/9/13 and refused at internal review on 24/10/13. That external audit report can be read as part of the committee’s papers (see agenda item 2 and the links from this page on Wirral Council’s website if you wish to do.
Had the responses to those FOI requests been forthcoming and Wirral Council provided the information within weeks a lot more would have been in the public domain before the July and October meetings in 2014 of the Audit and Risk Management Committee meetings. Wirral Council instead chose to rely on exemptions to suppress the information and knew I was unlikely to appeal to ICO, as if I had I’d probably still be waiting for a decision!
Excessive secrecy just makes the public and press suspect that there’s a deliberate cover up or Wirral Council has done something it’s ashamed or embarrassed about. Usually the answer is a little more complicated than a conspiracy.
The Merseyside police investigation (which resulted in no charges) was used as an excuse by Wirral Council to deny FOI requests, not just about the one Grant Thornton recommended was referred to the police, but information in general about the other aspects too.
Wirral Council was recommended by the forensic arm of its external auditors to refer one very minor matter to the police. Wirral Council did and this was then used this as an excuse to delay and prevent further scrutiny. The police response (and I summarise) was that based on what they were told that there was insufficient evidence to charge somebody (or somebodies) with a crime. Remember criminal charges require basically two elements, proof that the alleged crime occurred and also generally for most criminal matters mens rea (proof of a “guilty mind” too). The latter is often harder to prove than the former, which is why defendants sometimes plead not guilty in order to get a jury trial! As Wirral Council actually carries out criminal prosecutions through the Wirral Magistrates Courts, I’m sure someone there who is actually aware of these matters!
This article is getting rather long and at the two thousand word mark I am somewhat digressing into related matters, although obviously it is not as long as the papers for that meeting which come in at the length of a medium-sized novel!
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Graham Burgess (Chief Executive) announces he will retire from Wirral Council on 31st December 2014
Graham Burgess (Chief Executive) announces he will retire from Wirral Council on 31st December 2014
Above is Graham Burgess in July 2012 at the Council meeting that chose him as Chief Executive
Below is the text of a media release issued by Wirral Council and distributed by David Armstrong, Assistant Chief Executive to those at the Cabinet meeting this evening. Usually I don’t just reprint press releases, but as it’s late and it’s newsworthy I think people had better know.
Wirral Council Chief Executive, Graham Burgess announces his retirement
Wirral Council Chief Executive Graham Burgess informed tonight’s meeting of Wirral’s Cabinet that he is to retire on December 31, 2014.
Graham officially joined Wirral Council in September 2012. Previous to that, he had been Chief Executive of Blackburn with Darwen Borough Council, and remains a leading figure in the Local Government Association (LGA).
He said: ‘When I took up post, I said that first and foremost, my role was to help shape the transformation of Wirral. Wirral is now a very different place to when I arrived, and I feel now is the right time to hand over to let the next phase of this work begin.
‘I have enjoyed the opportunity to work with the organisations and communities that make Wirral a special place, and I will continue to take a strong interest in the borough’s future. I would like to thank the people I have worked with, including residents, Councillors, and staff for their hard work. There are many excellent people working for Wirral and I wish them every success as they take the authority forward.’
Councillor Phil Davies, Leader of Wirral Council today paid tribute: ‘Graham joined us at a very difficult time and has been a positive and transformational catalyst for change. I would like to thank him for galvanising a collective will to move forward positively and constructively.
‘I am sad to see him go. We have been a good partnership forged by a shared appetite for change and innovation. However. we will continue the positive progress already made, and look forward to choosing a new Chief Executive to continue to take us forward into the next phase.’
Before joining Wirral Council on a full-time basis, Graham had spent a considerable amount of time in Wirral, including as a member of the Council’s LGA-led Improvement Board.
Graham, who was born in and lives in Liverpool, was previously Chief Executive of Blackburn with Darwen Borough Council. He began working for Wirral Council as part of the LGA Improvement Board, after series of external reports highlighted major weaknesses in the authority.
Since taking up the post of Chief Executive on an interim basis, then later being permanently appointed to the role, Wirral has been selected as one of nine authorities to participate in the Public Services Transformation Network.
The Council’s improvement has also been named by the LGA as being the fastest turnaround of any Council in the country, and is held up by the LGA as an example of best practice.
Since Graham joined the authority, Wirral has made significant progress in managing the financial risks and challenges it faces. An independent ‘Value for Money,’ report, compiled by auditors Grant Thornton, and published in September, also found that Wirral had made significant progress in managing the financial risks and challenges it faces.
9 councillors vote to make Wirral Council leisure centre concession scheme for Armed Forces less generous despite objections
9 councillors vote to make Wirral Council leisure centre concession scheme for Armed Forces less generous despite objections
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I will start by declaring an interest in this story as I have a friend who is now a Lance Corporal in the Armed Forces and was recently mentioned in this Telegraph article.
Last month (23rd September) there was a review (by the Coordinating Committee) of a Wirral Council Cabinet decision made on the 7th July 2014 to change the concessions provided at Wirral’s leisure centres to former Armed Forces personnel.
The decision had originally been scheduled to be decided by the Coordinating Committee on 7th August 2014, however the meeting on the 7th August 2014 was adjourned because on 7th August 2014 key Wirral Council officers involved in the decision were on holiday and couldn’t be present to answer questions. So the meeting of the 7th August 2014 was adjourned to the 23rd September 2014.
There was then an interesting meeting on the 23rd September 2014 (which was in part a repeat of the adjourned meeting on the 7th August 2014). Councillors discussed the impact of the proposed changes to the policy and witnesses were heard from and questioned.
The motions at the end of that meeting were:
1) “That Cabinet minute 37 – 7 July 2014 (Transformation of Leisure Services Sports and Leisure Facilities Pricing Structure) be upheld” (proposed by Cllr Moira McLaughlin and seconded by Cllr Paul Doughty)
and the proposed amendment (proposed by Cllr Chris Blakeley and seconded by Cllr Mike Hornby) was
2) “That this Committee, having heard evidence this evening, stands unconvinced that any potential saving (the achievement of which remains dubious) made by implementing the decision at paragraph 3 of the Cabinet report, outweighs the harm this decision will do to Wirral’s reputation as an Authority which takes seriously its duties under the Military Covenant and as an Authority that does all it can to actively uphold and advance the Covenant.
Therefore, this Committee urges the Cabinet to reconsider its decision and restore the free Leisure Passes to all the veterans of Her Majesty’s Armed Forces.”
The vote on the amendment was 6 votes for (5 Conservative, 1 Lib Dem) and 9 votes against (9 Labour councillors).
The amendment was therefore lost.
The vote on the original motion was 9 votes for (9 Labour) and 6 votes against (5 Conservative, 1 Lib Dem).
The original motion/recommendation was therefore carried.
At the start of the meeting both Cllr Mike Hornby and Cllr Walter Smith declared interests as former members of the Armed Forces.
The Cabinet Member (not part of the committee but a witness) Cllr Chris Meaden declared an interest as her daughter is a former member of the Armed Forces.
Cllr Paul Doughty (the Vice-Chair) declared an interest as his late father had been in the Armed Forces.
There is then an “anomaly” (as Surjit Tour would put it) identified at this point.
Cllr Chris Meaden (the Cabinet Member) declared an interest as her daughter is a former member of the Armed Forces at the Coordinating Committee on the 23rd September 2014 which reviewed the earlier decision of Cabinet (of which she was one of the Cabinet Members present) on the 7th July 2014.
Certainly the video (below) of that Cabinet meeting in July shows Cllr Chris Meaden both present and speaking on that item which fell under her portfolio.
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The video footage of declarations of interest was earlier in that meeting (see below)
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However in Cllr Chris Meaden’s defence, this item did come near the end of a long Cabinet meeting held in the evening. Politicians do get tired and overlook things. She [Cllr Chris Meaden] referred to a conversation with Surjit Tour (who is Monitoring Officer) at the Coordinating Committee meeting in September. By the way she was talking then she seems to realise it was an oversight on her part and was trying to make amends by declaring the interest instead at the Coordinating Committee meeting in September, when it should have happened at the Cabinet meeting on the 7th July.
Declaring interests is one of the few bits left of the Councillor’s Code of Conduct on which separate legal provisions apply. It’s also a personal legal responsibility of politicians, so they can’t pass the buck to someone else or blame them. The guidance from the DCLG titled Openness and transparency on personal interests A guide for councillors issued in September 2013 states in reference to councillors starting at the bottom of page 4:
“One of these is the principle of integrity – that ‘Holders of public office must avoid placing themselves under any obligation to people or organisations that might try inappropriately to influence them in their work. They should not act or take decisions in order to gain financial or other material benefits for themselves, their family, or their friends. They must declare and resolve any interests and relationships.’”
By my reading of the rules, this interest would be classed as a “personal interest” not a “prejudicial interest”. Therefore even had she declared this on the 7th July 2014, she would still have been able to take part and vote in that agenda item. Had it been an undeclared pecuniary/prejudicial interest it would be a much more serious matter.
4.2 You have a personal interest in any business of the Council where it relates to or is likely to affect:-
(i) any body of which you are a Member or in a position of general control or management and to which you are appointed or nominated by the Council;
(ii) any body:-
(a) exercising functions of a public nature;
(b) directed to charitable purposes; or
(c) one of whose principal purposes includes the influence of public opinion or policy (including any political party), of which you are a member or in a position of general control or management.
4.3 You also have a personal interest in any business of the Council:-
(i) where a decision in relation to that business might reasonably be regarded as affecting your well-being or financial position or the well-being or financial position of a relevant person to a greater extent than the
majority of other council taxpayers, ratepayers or inhabitants of the electoral division or ward, as the case may be, affected by the decision, or,
(ii) it relates to or is likely to affect any of the interests you have registered as a disclosable pecuniary interest.
Sensitive Interests
4.4 Where you consider that disclosure of the details of an interest could lead to you, or a person connected with you, being subject to violence or intimidation, and the Monitoring Officer agrees, if the interest is entered on the Register, copies of the Register which are made available for inspection and any published version of the
Register will exclude details of the interest, but may state that you have an interest, the details of which are withheld.
Disclosure and participation
4. At a meeting where such issues arise, DO declare any personal and/or professional interests relating to your public duties and DO take steps to resolve any conflicts arising in a way that protects the public interest.
5. Certain types of decisions, including those relating to a permission, licence, consent or registration for yourself, your friends, your family members, your employer or your business interests, are so closely tied to your personal and/or professional life that your ability to make a decision in an impartial manner in your role as a member may be called into question and in turn raise issues about the validity of the decision of the authority. DO NOT become involved in these decisions any more than a member of the public in the same personal and/or professional position as yourself is able to be and DO NOT vote in relation to such matters.
Just in case someone thinks I’m singling Cllr Chris Meaden out for criticism. At a recent meeting last week Cllr Leah Fraser was present at a meeting of the Wallasey Constituency Committee Working Group when a decision (following a recommendation from the Merseyside Police) over whether to spend money on Ian Fraser Walk in New Brighton was made. As far as I can as I was present throughout the whole of the meeting, I don’t remember her declaring an interest in that agenda item (although I may not have heard her if she did).
Ian Fraser Walk is in fact named after her late father-in-law but she didn’t declare an interest. However whether Cllr Leah Fraser should have to declare a personal interest in whether money is spent on a stretch of promenade named after her late father in law is another matter.
If I wend through all the times councillors had failed to declare personal interests, it would be a very long list! Some are like the last example somewhat subjective. It’s more when councillors actually fail to declare prejudicial interests and then speak and vote on agenda items, which are the kind of major abuses that should be tackled and not happen in the first place.
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What does an election year, Cllr Phil Davies, the Schools PFI contract, Lyndale School and the Wirral Schools Forum have in common?
What does an election year, Cllr Phil Davies, the Schools PFI contract and Lyndale School have in common?
Councillor Tony Smith (Cabinet Member for Children and Family Services) at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School which was reviewed by the Coordinating Committee on 2nd October 2014 L to R Cllr Stuart Whittingham, Cllr Tony Smith (Cabinet Member for Children and Family Services), Cllr Bernie Mooney and Lyndzay Roberts
Added at 8/10 12:04 In response to a reader comment about this article, I am at the start of this adding a declaration of interest, in that my wife Leonora has the liability for Council Tax at the property we both reside. Council Tax is mentioned in this article. However it is already public knowledge that we both reside on the Wirral.
In August 2014, as part of the 2013/14 audit using a right I have under s.15 of the Audit Commission Act 1998, I also requested a copy of the Schools PFI contract.
The next month (September 2014) I was asked to come and collect a paper copy of the contract from a Wirral Council building in Hamilton Square, Birkenhead, which it later turns out is incomplete and missing at least a few hundred pages (which I suppose is to be expected when you’re dealing with Wirral Council)!
One of the duller sides of journalism and blogging is the amount of reading you have to do to write properly about the topics you’re writing articles on. An alternative route is to just use a lot of quotes from experts. After all when I write about matters, people leave comments and sometimes ask follow-up questions in the comments or by email so I try and familiarise myself with the topic I’m writing about first so this can be easily done. This contract runs to 2031, costs ~£12 million a year and is with a company called Wirral School Services Limited (and others).
The day before yesterday I ploughed through the rest of the Schools PFI contract Wirral Council has with Wirral Schools Services Limited (at least the bit of it I have and isn’t missing). Some of the is haven’t been dotted and the ts crossed on the pages I have and there is a large chunk of it that is missing there are some bits I am unsure of. I’ve asked for the rest but how long that will take I’m not sure!
The contract has many boring details that even I find dull to read that I hope even you dear reader would not really find particularly interesting, such as details about school boilers, how many square metres rooms are in various schools on the Wirral & what colours the hot and cold water pipes are (although knowing my luck I’ll end up with a comment from an interested heating engineer telling me how much they’d love to read a detailed article about the building maintenance side of schools).
The Schools PFI contract also has the level of detail of the full names, NI numbers, dates of birth and other details of various employees employed to work at these schools such as cleaners and other staff. Wirral Council also runs the multi-£billion Merseyside Pension Fund, so there is an admission agreement with Merseyside Pension Fund to do with pension rights. There are pages and pages of details about staff as part of an admission agreement with Merseyside Pension Fund. I will however not be publishing such detailed information on living people as it would be a goldmine for ID fraudsters and the height of irresponsible journalism to publish dates of birth, NI numbers and names for large numbers of people!
In order to explain, I need to first write a summary about what this Schools PFI contract is about. This is based mainly on the index.
Part of it is a series of leases to Wirral Council for nine schools and other type of educational premises called city learning centres covered by the contract. At the end of the contract (2031 or earlier if the contract is terminated or modified) ownership of the schools and City Learning Centres reverts back to Wirral Council. Part of the contract is also for services provided at the schools and City Learning Centres such as school meals, caretaking, repairs to the buildings et cetera. Some information on this goes to the schools themselves, some to Wirral Council. There is also a joint liaison committee set up with people from Wirral Council and the contractor.
There are also variations within the contract to account for differences between the schools, for example from memory* (*the caveat is I don’t always remember things correctly and haven’t double checked this against the contract again) I think Leasowe Primary School uses a slightly different system for school meals to the other secondary schools.
Some of the contract also relates to transitional provisions from the previous supplier Jarvis. This applied really in the early stages of the contract.
It’s all very long and very complicated and unless you have an interest in the area or are involved with Wirral Council, one of the nine schools (which are Leasowe Primary, Bebington High, University Academy of Birkenhead (formerly called Park High), South Wirral High, Weatherhead High, Hilbre High, Prenton High, Wallasey High and Wirral Grammar Girls) or two City Learning Centres (Wallasey City Learning Centre and Hilbre City Learning Centre) involved or the contractors in some way it’s probably not very interesting to you. It also interestingly falls into the set of contracts that Wirral Council will be legally required to publish at some future stage in the coming weeks.
The contract is so long and heavy (even with the missing pages) that I had to familiarise myself with our manual handling procedures just to figure out how to lift it up (and am grateful to myself that I didn’t drop it on my foot).
The first section marked “Private and confidential” is an agreement between Wirral Borough Council [1] and Wirral Schools Services Limited [2] dated 9/9/2004 and is called “Deed of Amendment and Restatement relating to Wirral Schools PFI project”. Addleshaw Goddard (a law firm) are mentioned at the bottom which are I presume are the law firm that drafted it. This section is 10 pages. This was when it was renegotiated in 2004.
So Section 1 – “Deed of Amendment and Restatement relating to Wirral Schools PFI project” 9/9/2004 10 pages
Then there’s section two, which is a “CONFORMED COPY” of a project agreement dated 27/3/2001 between Wirral Borough Council and Wirral Schools Services Limited which was amended and restated pursuant to the “Deed of Amendment and Restatement” (I’ve just mentioned) dated 9/9/2004. Rowe & Maw or 20 Black Friars Lane, London are at the bottom of the title page, their ref is 617/343/476/27909.1. Rowe & Maw were a legal firm based in London, they then became Mayer, Brown, Rowe & Maw in 2002 and in 2007 shortened their name to Mayer Brown. Apparently now they are the 22nd largest law firm in the world.
Section 2 – “Project Agreement amended and restated pursuant to a Deed of Amendment and Restatement dates 9/9/2014” dated 27/3/2001 198 pages
Schedule 1 (Volume 1 of the schedules) between Wirral Borough Council and Wirral School Services Limited is mainly series of headleases and underleases for various schools:
Pt 1 Bebington Headlease (16 pages and refers to Land Registry title MS435412)
Pt 2 Hilbre Headlease (16 pages and refers to Land Registry title MS435411)
Pt 3 Park High Headlease (15 pages and refers to Land Registry title MS435414)
Pt 4 Prenton High Headlease (8 pages) * note the copy I have been given is partially incomplete as this is missing pg 9 and schedules 1-4
Pt 5 South Wirral High Headlease (15 pages and refers to Land Registry MS435824)
Pt 6 Wallasey Headlease * missing
Pt 7 “Not used”
Pt 8 Weatherhead Headlease * missing
Pt 9 Wirral Girls Headlease * missing
Pt 10 Bebington Underlease * missing
Pt 11 Hilbre Underlease * missing
Pt 12 Park High Underlease * missing
Pt 13 Prenton High Underlease * missing
Pt 14 South Wirral High Underlease * missing
Pt 15 Wallasey Underlease * missing
Pt 16 “Not used”
Pt 17 Weatherhead Underlease * missing
Pt 18 Wirral Girls Underlease * missing
Pt 19 Plans * missing
This comes to only 55 pages supplied out of an estimated 280 which is hardly a way for a Council to comply with its requirements under the audit legislation is it!? Hopefully they treat Grant Thornton (their external auditors better than this)!
Schedule 2 and 3 following it are then completely missing. I wonder at times if Wirral Council can’t do something simple like actually making a copy of a contract for the purposes of the 2013/14 audit without messing it up, what else are they getting wrong (are they deliberately trying to hide something)?
These are:
Schedule 2 Financial Matters * completely missing all parts 1-8
Part 1 Lenders Direct Agreement * missing
Part 2 The Council’s Design and Building Contract Direct Agreement * missing
Part 3 The Council’s Support Services Management Direct Agreement * missing
Part 4 Design and Building Contract Performance Guarantee * missing
Part 5 Support Services Management Agreement Performance Guarantee * missing
Part 6 Initial Senior Funding Agreements * missing
Part 7 Other Initial Funding Agreements * missing
Part 8 Rules for Refinancing * missing
Schedule 3 Works * completely missing parts 1-10 and appendices
Part 1 Design Development Procedure * missing
Part 2 Prohibited Materials * missing
Part 3 Schedule of Key Dates * missing
Part 4 Outline Design Documents * missing
Part 5 The Completion Standards * missing
Part 6 Decant Programme Methodology * missing
Appendix 1 Decant Programme: Park High * missing
Appendix 2 Decant: Further Obligations * missing
Part 7 Handback Requirements * missing
Part 8 Project Programme * missing
Part 9 Construction Site Rules * missing
Part 10 Handback Survey * missing
Schedule 4 between Wirral Borough Council and Wirral School Services Limited is to do with Payments and is split into:
Cover pages (2)
Part 1 Definitions (11 pages, definitions from “Agreed Market Testing Proposal” to “Zone Drawings)
Part 2 Services Contract Payment (5 pages)
Part 3 Performance Deduction Look-up Table (1 page)
Part 4 Table of Service Units per School (1 page) GSUs for each school totalling 28,047 GSUs
Part 5 Monitoring (7 pages)
Part 6 Utility Services (5 pages)
Part 7 Third Party Use (4 pages) dealing with issues such as vending machines
Part 7A Catering (6 pages)
Part 8 Value for Money Testing (12 pages)
Appendix 1 Form of Performance and Payment Report (45 pages) These are examples of the payment reports that go to each school either from Jarvis Workspace FM or Wirral Schools Services Limited.
Schedule 5 is the Accommodation Services Output Specifications (82 pages long)
Schedule 6 is the Support Services Output Specifications
Part 1 Building and Asset Management Output Specifications (12 pages)
Part 2 Support Services Requirements and Performance Tables (59 pages)
Part 3 Service Level Agreements (such as control of pests) (141 pages)
Part 4 Service Level Agreements Alteration Procedure (4 pages)
Schedule 7 Reports and Records
Part 1 Reports (3 pages)
Part 2 Records (2 pages)
Schedule 8 Variations
Variation Notice (1 page)
Schedule 9 Insurance (2 pages)
Part 1 The Part 1 Insurance Period (10 pages) deals with construction all risks, business interruption insurance & public liability insurance
Part 2 The Part 2 Insurance Period (8 pages) deals with property all risks insurance, business interruption insurance & public liability insurance
Appendix 1 Endorsements (4 pages)
Appendix 2 Broker’s Letter of Undertaking (4 pages)
Appendix 3 Business Interruption Insurance – the Authority’s Obligations as Insurer (4 pages)
Appendix 4 Schedule of Insured Parties (2 pages)
Schedule 10 Liaison Committee (4 pages)
Schedule 11 Compensation on Termination
Part 1 Definitions (6 pages)
Part 2 Project Co Default (6 pages)
Part 3 Authority Default (2 pages)
Part 4 Notice by the Authority (8 pages)
Part 5 Fore Majeure, Uninsurability and Planning Challenge (1 page)
Part 6 Corrupt Gifts (1 page)
Schedule 12 Dispute Resolution Wirral Borough Council & Wirral School Services Limited
Cover pages (2 pages)
Dispute Resolution (9 pages)
Schedule 17 Quality Systems
Part 1 Design and Build Period Quality System (24 pages)
Part 2 Operational Period Quality System
Appendix 1 A Quality Policy (1 page)
Appendix 2 B Certificate of Approval (2 pages)
Appendix 3 C Proposed QA Implementation Plan (1 page)
Appendix 4 D Contact Directory (1 page)
Appendix 5 E Local Procedures (1 page)
Schedule 18 Employees
Part 1 Employee Information (6 pages)
Part 2 Terms and Conditions of Employment (1 page)
Schedule 19 Admission Agreements and Bonds
Part 1 Jarvis Workspace FM Limited (Wirral Borough Council and Jarvis Workspace FM Limited and Wirral Schools Services Limited) Merseyside Pension Fund Admission Agreement with Transferee Admission Body (15 pages)
Part 2 Compass Group PLC
(Wirral Borough Council and Compass Group PLC and ??? ) MPF Admission Agreement with Transferee Admission Body (12 pages)
(Wirral Borough Council and Compass Group PLC and ???) Agreement for a bond and indemnity in respect of sums due under an admission agreement arising from the premature termination of a best value arrangement (8 pages)
Part 3 MTL Commercial Limited (22 pages)
Part 3 is an admission agreement to the Merseyside Pension Fund between Wirral Borough Council, MTL Commercial Limited and Merseyside Pension Fund from 2001. This also relates to an unfilled in guarantor (which I will have to assume is Compass Group PLC), MTL Commercial Limited and Wirral Borough Council as well as a bond and indemnity. This admission agreement also relates to Jarvis Workspace FM Limited. This is one of the schedules which includes pages and pages and pages of staff surnames (organised alphabetically by staff surname), initials for staff names, NI (National Insurance) numbers, post titles, pension and birth dates et cetera. However on the copy I was supplied with much has been left incomplete such as the date the agreement was agreed in 2001, the office address of MTL Commercial Limited and much other detail is missing too such as director and secretary signatures.
The end of schedule 19 is an agreement between Wirral Borough Council and MTL Commercial Ltd and ???? which is titled “Agreement for a bond and indemnity in respect of sums due under an admission agreement arising from the premature termination of a best value arrangement”. This too is incomplete and unsigned.
Schedule 20 is a one page staff security protocol which details the information staff have to provide on any criminal matters and also references they have to provide before getting a job. There is also information detailed here that they have to provide to their employer during their employment if things change.
Schedule 21 is “operational site rules” – 19 pages long
Schedule 22 is a “draft transitional services agreement” which is an agreement for the supply of transitional services between Wirral Borough Council and Jarvis Workspace FM Limited which is 145 pages long
Schedule 23 is about the City Learning Centre (8 pages long)
Schedule 24 is the “non moveable equipment schedule of rates” (5 pages)
***
As the contract is so long, has been supplied incomplete and falls within the category that Wirral Council should be publishing within a matter of weeks, I won’t be scanning in the whole contract and publishing it! If there are any sections you would like me to publish though (that aren’t in the missing sections) please leave a comment or send me an email.
Just to make it clear the amount paid under the PFI contract isn’t going up by £2.5 million a year as it’s pegged to increases based on RPI.
The ratio between December 2013 RPI and December 2012 RPI was an increase of 2.674%.
There is then an “efficiency factor” of 10% built into the contract.
So, 90% * 2.674% = 2.4066%
So the yearly increase this year in PFI costs is in the region of ~£289,000 . Next year’s increase will be known when the RPI data for December 2014 is published.
So why ask is the Wirral Schools Forum being asked to make £2.3 million of cuts in year (2014-15), in addition to the £600,000 of cuts earlier this year for the Schools PFI contract then and what is this actually going to fund instead?
Well last year there was a 0% rise in the Council Tax (after a budget was prepared a few months before showing a 2% rise). Yes a freeze on Council Tax means Wirral Council got a grant which equates to a 1% rise. I presume for the financial year 2015/16 based on statements previously made by Cllr Phil Davies that senior officers at Wirral Council are also planning for a 0% rise for 2015/16 (although we’ll all find that out for sure over the next few months at a Council meeting as plans are sometimes subject to change).
It’s also interesting to note that Cllr Phil Davies (who is the Cabinet Member for Finance/Leader of the Council) four year term of office comes to an end in May 2014 so this is an “election year” for him (presuming he wishes to stand again which by all the recent press articles about Cllr Phil Davies related to Birkenhead & Tranmere means it is likely that Labour have picked him as the candidate for this area already). What better way for Cllr Phil Davies to get himself elected by telling the voters of Birkenhead and Tranmere that he has frozen their Council Tax (helpfully leaving out in leaflets to the voters in Birkenhead and Tranmere the inconvenient facts that this will come at the expense of cuts made this year (pending Wirral Schools Forum approval) to the money spent on pupils with a disability, statements, support for Special Educational Needs, maintenance of school buildings, axing funding for the School Sports Coordinator & use of swimming baths (although this two last items may be funded in future by schools directly themselves through the traded services) and other in year cuts to the Schools Budget)? Oh and also another inconvenient truth that thanks to cuts made by his Cabinet to Council Tax support many in Birkenhead & Tranmere are now having to pay 22% of their Council Tax bill whereas previously they had to pay nothing as 100% of their bill was covered by Council Tax Benefit?
After all, if Cllr Phil Davies is challenged between now and the elections in May about why he is making all these cuts by presumably the Conservatives, Lib Dems or Green Party, he based on past experience of his answers to this very question will probably blame the need to make any cuts to Wirral Council’s budget on the Coalition (Tory and Lib Dem) government, which of course absolves himself of any responsibility for these “difficult decisions”. This is of course is conveniently leaving out the fact that:
a) Wirral Council decides itself whether it wants to freeze Council Tax, rise it or decrease it each year. There is a majority Labour administration in charge of Wirral Council since 2012 so they make these decisions on the budget, Labour decided the 2013/14 budget, the 2014/15 budget and will decide the 2015/16 budget. If Labour want a Council Tax rise over x%* (a figure set by the government each year which was set last year at 2%) they have to win a referendum of the people and
b) that these are all locally made decisions over how the money is spent and that he’s the Cabinet Member for Finance (therefore he is the politician with democratic accountability to the public (and other politicians) for tax and spending decisions).
Of course there are some that would also say that these plans have come from senior officers at Wirral Council, not the Cabinet Member himself and will ask well is it a case of the officer tail wagging the Labour dog instead of the other way round? However senior officers at Wirral Council and politicians do surprise, surprise work together! These large in year changes to the agreed budget do also show as Cllr Stuart Kelly (Lib Dem audit spokesperson) quite recently pointed out at a recent public meeting that in his opinion this year’s (14/15) budget isn’t stable if changes are being made in year!
In fact at this point a £3 million overspend is predicted by the end of the year! I’m also curious as to why the date of the next Council meeting has been shifted from the 13th October 2014 to 20th October 2014. I’m sure it can’t be just because I tabled a question and they need an extra week to answer! If anyone knows the answer to that mystery please leave a comment?
Here’s an interesting question that stems from all this though. Despite the flim flam and contradictory statements over Lyndale School, is the price of Cllr Phil Davies getting reelected in May 2015 in Birkenhead & Tranmere the closure of Lyndale School (in Eastham) or is he just “rubber stamping” plans of senior officers?
After all the closure of Lyndale School currently pencilled in for January 2016 (if agreed by Cabinet later this year) won’t actually happen until after the May 2015 elections have taken place.
Can the many Labour councillors on Wirral Council seriously sleep at night knowing all this or are some behind closed doors expressing their disquiet about how this has played out in private meetings (especially the ones facing the electorate in May 2015)? Are Labour councillors worried that being directly involved in a decision about Lyndale (whether Cabinet or call in) will either affect their ability to be reselected by their fellow party members or indeed their future election prospects when they face the public at election time? Does this also explain why so many Labour deputies were sent to the Coordinating Committee meeting about Lyndale School last week? It’s all very mysterious isn’t it as one can only guess at what happens behind closed doors!?
I know the Cabinet decision to consult on axing Children’s Centres (currently on hold due to Conservative councillors calling it in) isn’t going down well with some Labour Party members (to put it mildly). That decision (made in the last few weeks by Cabinet) “called in” by Conservative councillors (Councillor Paul Hayes seems to be fast becoming the “call in councillor” and is going to be reviewed at a special meeting of the Coordinating Committee on the 15th October 2014 starting at 5.00pm (you can read the papers for that decision here).
Will Labour councillors decide that enough is enough when it comes to children’s centres, or will they agree with the Labour Cabinet and agree to start a consultation on closing them?
We’ll just have to wait and see! Please leave a comment on the above as I am interested to read your views!
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