Disclosure of 46 pages of PFI contractor’s banking details by Merseyside Fire and Rescue Service described as “oversight”
The author of this piece is an Appellant in a First-Tier Tribunal (Information Rights) case involving Merseyside Fire and Rescue Authority.
Today, the eighteen councillors on the Merseyside Fire and Rescue Authority met. One of the decisions they agreed was a constitution which includes the following (Members means councillors), “Members should avoid public criticism of individual Officers, as it is unfair and oppressive.”
Last year during the 2014/15 audit, I requested the North West Fire and Rescue PFI contract. This is the PFI contract with Merseyside Fire and Rescue Authority for the Belle Vale, Birkenhead, Bootle/Netherton, Formby, Kirkdale, Newton-le-Willows and Southport fire stations on Merseyside as well as fire stations in Lancashire and Cumbria.
When it was published on this blog in October 2015, a former press officer working for Merseyside Fire and Rescue Service Lyndsay Young phoned me asking me to remove the contract from my blog. I explained why I wasn’t going to do so and alerted her to the 46 pages of bank account mandates and specimen signatures that I had not published.
Last week Merseyside Fire and Rescue Authority’s Audit Sub-Committee met and discussed the Corporate Risk Register which included the risk of data loss and the possibility of regulatory action by the Information Commissioner’s Office (ICO). I requested a press officer be present for this meeting so I could ask for a quote from Merseyside Fire and Rescue Service about its disclosure of this information. This request was denied.
After Deputy Chief Fire Officer Phil Garrigan’s glowing comments at that meeting about the efforts Merseyside Fire and Rescue Service had taken to prevent data loss at the Audit Sub-Committee meeting, I emailed the Merseyside Fire and Rescue Services’ auditors Grant Thornton alerting them to this and also asked the contractor Balfour Beatty for a quote.
Merseyside Fire and Rescue Service’s position changed from their original “no comment” to an email requesting that the information be destroyed or returned (offering to pay any costs of doing so).
Louise McCulloch, Head of Media & PR for Balfour Beatty kindly gave us the following quote, “Last year, information relating to [the] North West Fire and Rescue (NWFR) [contract] in which Balfour Beatty has an interest, was inadvertently shared with an individual as part of a response to their request to the Fire and Rescue Authority under s 15(1)(a) of the Audit Commission Act 1998.
The Authority made NWFR fully aware of the oversight immediately. NWFR has taken the necessary steps to ensure no adverse impact.
NWFR has asked the Authority to request the individual destroy or return the information which has no public interest, which Merseyside Fire and Rescue Service has done.”
The 46 pages of disclosed information contain details of sort codes, account numbers, specimen signatures and names of those authorised to use various Barclays Corporate bank accounts connected to the PFI fire stations project run by Balfour Beatty.
Clearly this information should not have been disclosed to me, but it is worrying that Merseyside Fire and Rescue Service seemed to only realise this had happened after I told them first in October 2015 and again in June 2016!
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Previously during citizen audit, public bodies could redact information about the names of their own staff, but if it was information about anyone else they had to get their auditor’s approval.
Now, public bodies can redact parts of documents or whole documents on grounds of commercial confidentiality (although a public interest test has to be carried out) and information about the names of their own staff. They are also allowed to redact information that is the name of other individuals but not if it’s the name of a sole trader.
Previously the auditor had to consider all objections (as long as a copy was sent to the public body) made by local government electors for a declaration that an item of account is unlawful, recovery of an amount not accounted, a public interest report or an immediate report.
Now, an objection can only be about a matter that the auditor could write a public interest report about or declare that an item of account is unlawful but the auditor can decide not to consider the objection if:
(a) the auditor thinks it is frivolous or vexatious, or
(b) the cost to the auditor investigating is disproportionate to the sums involved or
(c) it repeats an objection already made and considered by the auditor whether in that financial year or a previous financial year.
However the auditor won’t be able to decide not to consider an objection if it is "an objection which the auditor thinks might disclose serious concerns about how the relevant authority is managed or led".
Even if the auditor rejects an objection for one or more of the reasons above the auditor can still make a recommendation to the public body.
Under the new regime, this changes. There will be a longer inspection period of thirty working days, but this period will now also be the time during which objections and questions to the auditor must be made.
What links FOI, ICO decision notice FS50591795, audit, a class A drug, barristers and Liverpool City Council?
There is a form of direct accountability during the audit of local councils when for a short period each year local government electors can inspect information about that financial year such as invoices and contracts.
Here is a legal reference to that right (Audit Commission Act 1998, s.15) which has been a direct form of democratic accountability that in one form or another has been around since Victorian times.
It’s tied in to rights of local government electors to ask questions of the external auditor (which for Wirral Council is Grant Thornton), to make objections to the accounts, to request public interest reports. After all how can you do all that without seeing the information in the first place?
It’s a form of direct democratic accountability.
Unlike making a freedom of information request (time limit of 18.5 hours) there is strictly very little legal limits on what can be requested (well apart from on the insular peninsula at Wirral Council where they have a habit of deliberately shifting the goalposts and coming up with bizarre interpretations of legislation to suit themselves). Last year I made requests under this audit legislation to Wirral Council, Liverpool City Council, Merseyside Waste Disposal Authority, Merseytravel and the Merseyside Fire and Rescue Authority.
The Liverpool City Council request was connected to an earlier FOI request and there’s been a recent decision notice issued in that matter on the 1st February 2016 which hasn’t been published yet by ICO.
Ironically ICO seemed to have met a stumbling block with Liverpool City Council on that one as they asked me for the information that I’d been refused under FOI (happy to oblige). This implies Liverpool City Council weren’t being entirely cooperative with ICO.
I’ve been sent a paper copy of the decision notice through the post, but it’s not published on ICO’s website yet. The reference is FS50591795. It’s a mercifully short eight pages and requires both Liverpool City Council to issue a fresh response with 35 days of 1st February 2016 (or appeal to the Tribunal) and states that Liverpool City Council breached s.10(1) of the Freedom of Information Act 2000. If anybody wants me to I can scan a copy in and publish it here.
Basically LCC’s arguments are that I’m being unfair to barristers by requesting invoices they’ve submitted to LCC. Because as we all know, the purpose of a self proclaimed "socialist" Council like Liverpool City Council is to stick up for downtrodden, oppressed groups on the margins of society like barristers!
Let’s take the example of one barrister (pictured above on the left), a barrister I might point out who is not the subject of the invoices I requested, but who is in addition to being a barrister, a Labour Liverpool City Council councillor called Cllr Paul Brant. He resigned as a councillor in 2013 (although has since been re-elected) after receiving a police caution for possession of a class A drug. He was also the subject of a The Bar Tribunals & Adjudication Service disciplinary tribunal.
Below are the details.
Defendant Paul Brant (Lincoln’s Inn)
Type of hearing 3 Person Disciplinary Tribunal
Panel members Mr William Rhodri Davies QC (Chair)
Ms Pamela Mansell
Mr Mark West
Paul Brant engaged in conduct which was discreditable to a barrister contrary to paragraph 301(a)(i) of the Code of Conduct in that on a day between the 1st January 2013 and the 21st September 2013 he committed the criminal offence of being in possession of a controlled drug of class A contrary to The Misuse of Drugs Act 1971, for which offence on the 20th September 2013 he receive a simple caution."
It would be a conflict of interest for Cllr Paul Brant to do work for Liverpool City Council but according to his Chamber’s website he has been instructed to represent Wirral Council in the past (yes Wirral Leaks I can get trees into a story too!):
“Jayne Spencer v Wirral Metropolitan Borough Council (2008); LTL 1/10/2008 (Highway liability claim, tree root in Port Sunlight conservation area causing personal injury – whether breach of duty. Mr Brant appeared successfully at first instance and on appeal).”
This is an aside but I do remember one year during the audit, Wirral Council weren’t happy with me requesting the invoices for their legal invoices for these sorts of liability claims. “
However there should be some transparency as to who Liverpool City Council are paying! All Liverpool City Council councillors are responsible for budget matters including Cllr Paul Brant.
To give the example of Paul Brant above, it shows he works at Oriel Chambers and was subject to a disciplinary tribunal in September 2014 (the outcome of which is detailed above).
One of my other arguments to the regulator was that Liverpool City Council is under a legal obligation to publish the names of its suppliers for invoices over £500. In fact the guidance they’re required by law to follow specifically states that being self-employed (which is their argument surrounding barristers) doesn’t mean they can keep the suppliers’ name out of the public domain (but Liverpool City Council do).
However the above legislation (surrounding rights of inspection, objection etc) during the audit was scrapped by the government. You can’t use it any more to do this after the 2014/15 financial year.
Instead for 2015/16 financial year onwards it’s been completely watered down.
Previously (apart from information about its own staff) local councils during the audit had to get permission from their external auditor if they wanted to withhold from inspection in the category of "personal information" (which was very narrowly defined). This was a safeguard to prevent public bodies abusing their powers.
Bear in mind however that each time the public body contacts their external auditor it increases what they’re charged.
However this check and balance on misuses of power in local government was repealed (scrapped) by the last Coalition government (Conservative/Lib Dem).
Oh but there’s more!
There’s a rather infamous recent case (well infamous in those familiar with "citizen audit") where a local government elector called Shlomo Dowen requested (during this period each year during the audit) a waste management contract between Nottinghamshire County Council and Veolia ES Nottinghamshire Ltd.
However Veolia weren’t happy at all by this (in fact if you read through the judgements in both cases you’ll find that even if Mr. Dowen was given the contract they wanted restrictions on him sharing it with other people) and brought an appeal in the Court of Appeal ( EWCA Civ 1214,  PTSR 185,  UKHRR 1317,  Eu LR 172). Veolia claimed that allowing Mr. Dowen to inspect/receive a copy of the contract would infringe that companies’ human rights.
I quote from part of that judgement, “I am not entirely convinced that English common law has always regarded the preservation of confidential information as a fundamental human right”.
Rix LJ, Etherton LJ, Jackson LJ upheld the appeal however.
The irony of all that was that Shlomo Dowen already had access to the information as Veolia’s lawyers did not seek a stay following the earlier judgment.
Interestingly withholding information on grounds of commercial confidentiality, this is a quote from the legislation,
“(5) Information is protected on the grounds of commercial confidentiality if—
(a) its disclosure would prejudice commercial confidentiality, and
(b) there is no overriding public interest in favour of its disclosure.”
is subject to a public interest test.
However there are other changes on the horizon too. Previously the inspection period was 15 days (3 weeks assuming there are no holidays).
When that inspection period was published in a public notice in at least one newspaper in the area and on the public body’s website.
I only have until the end of the 2015/16 local government financial year to get up to speed on these changes as being the Editor here I’ll have to schedule time for responding to the public notices, arranging appointments to inspect, as well as spare capacity for dealing with the moaning of the public sector (example moan last year being, it’s been 7/8 years since someone did this!).
As Wirral Council was somewhat uncooperative last year over the size of my request (only responding to the 10% of it they didn’t deem to be particularly sensitive), I will be having internal discussions here on avenues that can be explored to either embarrass Wirral Council into legal compliance (by censure (not to say that always works) or take more formal action.
Weirdly some of the politician’s expenses that they refused me under the audit legislation and Cllr Adrian Jones refused to make an appointment for me to see, they released in response to a later FOI request.
Which just goes to show that if you ask for the same information three times from Wirral Council (audit rights, a politician, then FOI), you might finally get it! Obviously by the third time, it starts to get embarrassing and seems like they have something to hide. I really don’t like having to ask three times when once should be enough though!
Anyway what was going to be only a short article about local government, barristers, ICO, FOI and audit is now rather on the long side so I’ll draw this to a close and give you an opportunity to comment.
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Why did Cllr Adrian “Father Christmas” Jones try to block scrutiny of £2.6 million given to Wirral Council to spend on the poor?
As you can see from the photo above (and let’s face it three days away from Christmas this is becoming topical), it’s well-known politician Cllr Adrian Jones dressed as Father Christmas and my wife Leonora Brace.
Now firstly, I’ve been taken back by all the positive comments people have left both to that article and on social media. It would probably take Christmas to respond to them all.
Firstly I will take this opportunity to wish Councillor Adrian Jones a happy Christmas. However this story isn’t really about him or myself. It’s a far more complicated saga than that. I’ve replied to a number of comments on social media to try and clarify some of it.
This story came about because of two other people who I am going to take the time to thank in this article (before I write any more about this subject).
The second person I’d like to thank is Ted Jeory. He writes a blog here. His blog covers local politics in Tower Hamlets. He’s a former accountant, then newspaper journalist who now works for the Bureau of Investigative Journalism.
To be honest with you, in my opinion (although this is only an opinion) they are both far better at journalism than I am!
However back to the story (which isn’t just about Cllr Adrian Jones and myself but this is a good place to start). Before doing what we both do now, Cllr Adrian Jones and I came from the academic world (a somewhat different world to politics).
In the academic world, my question to Cllr Adrian Jones would be like the equivalent of an oral exam where I’ve challenged his more orthodox view of the political world. He’s then disagreed with me over some points and it’s all gone to peer review now and now everyones’ commenting on the merits of each sides’ arguments. Fine, fair enough, that much I can understand and yes there should be a public debate and discussion about politicians’ expenses beyond the walls of Wirral Council’s Council Chamber.
It makes more sense that instead of the Heather Brooke route of 5 years of court battles that it is much more cost-effective (as this is a worry of Cllr Adrian Jones’) to have this debate in the media instead.
The world of politics however is very different to the world of academia. Despite sharing some features in fact they’re like oil and water.
I am now going to sound terribly like an academic now and reference a tweet I wrote yesterday about the new Poor Laws (and by new I mean 1844).
@GSwinburn#citizenaudit goes back to the Public Health Act 1875 & the new Poor Laws (1844), so Wirral hasn't had much time to adapt has it?
The way I made the request to Wirral Council dates back to this legal right from Victorian times, but is still relevant today. It’s an important right that gives access to local voters (such as myself) on what public money is being spent on. I realise the Wirral Globe headline is about councillors’ expenses, however I will instead highlight another part of the request that probably won’t generate as many headlines in the newspapers. In fact on this topic I can only find one article written two years ago by the Wirral Globe.
I’m going to briefly mention an area that you may not have heard of, that Wirral Council was given a budget of £1,345,925 a year to spend on. It’s called the Local Welfare Assistance Scheme. The whole point of it (rather like the point of the Poor Laws) was to reduce poverty.
The thumbnail for this invoice will be hard to read (it does link to a higher resolution version), however it’s for a cooker, electric kettle and washing machine (total £778.20). This would have been given to someone who made an application under the scheme. The other invoices are for very similar items too such as microwaves. The whole point of it is to help people in need who are have emergencies. The scheme also covers basics such as food and utilities.
You may well say good for Wirral Council, isn’t it great that they spent £1.3 million a year on helping poor people? However this isn’t what happened. As estimated by one councillor at this meeting, Wirral Council so restricted (or didn’t publicise enough) what they were doing, that there was an estimated (this was cumulative so it was over two years) £2.1 million underspend of a £2.6 million budget.
Yes this was money given to Wirral Council for the relief of the poor, on which there was an estimated £2.1 million underspend. Bear in mind we often hear Wirral’s councillors repeat that they feel the government are not giving Wirral Council enough money!
By Cllr Adrian Jones’ logic (in answer to the request I put in), I should be restricted from enquiring and writing questions/requesting the invoices for the above matter because it costs too much (despite an estimated over £2 million underspend).
In doing so (oh dear, I’m about to make what could be construed as a party political point here so advance warning), it makes it far easier for the Conservative government to axe funding for this area (as indeed they have done so already). Why, because if Wirral Council blocks or delays press scrutiny of it, then there is little discussion of it in the media in defence of it.
Therefore national politicians think it can be cut as they look somewhat to the press as an indicator of public opinion.
I know his fellow Labour councillor Cllr Janette Williamson has spoken passionately in defence of her view that the underspend should be used for its intended purpose rather than swallowed up to be spent on something else by Wirral Council.
As it is Christmas, I’ll try and give some respite to Cllr Adrian Jones’ on the rather vexed issue of councillors’ expenses (which is the tip of massive iceberg of Wirral Council expenditure) and finish by making these points which because of the time of year probably fall into religion rather than politics.
I was brought up as a Catholic and part of those teachings are about seeking together the common good and well-being of all, especially the poor and vulnerable. There are many good things that Wirral Council does, but if you block my queries it makes it more difficult for me to write about it. Personally, it doesn’t bother me too much if you try to block me, but it seems to be unpopular with the people that you are there to serve. To give the Local Welfare Assistance Scheme issue as outlined above, councillor scrutiny on it was done behind closed doors, not in public but as a task and finish group.
The story then sadly becomes about the secrecy (which let’s face it is the kind of story about cover ups the rest of the press like to write about). Frankly if you do this it’s very good for my career and bad for Wirral Council’s reputation (although you know this already). In three days time it will be Christmas (on the day I’m writing this). Christmas is a time of year when society concentrates on the religious and there is a break from politics.
I don’t expect politicians or those working in the public sector to be saints, but I sincerely hope they know the difference between right and wrong (and yes my view of right and wrong is probably slightly different to yours and everybody else’s as right and wrong is subjective).
Although you may not believe this, I don’t wish to quarrel with Wirral Council or its councillors, in fact believe me I try my best not to interfere in your internal affairs. I just see your world from outside the goldfish bowl that is local politics rather than inside. Happy Christmas!
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Wirral Council’s Public Question Time 14th December 2015
Before I write about the question I asked of Councillor Adrian Jones at public question time, I am going to explain some of the legal background, what’s happened so far and why there are echoes of the extreme lengths that the former Speaker of the House of Commons Michael Martin went to over MPs’ expenses.
There are a number of different laws (and a bit of history) here that apply to this, so I am going to start by explaining my understanding of them and explain why Cllr Adrian Jones has unfortunately fallen into the trap of believing things officers tell him and also getting bamboozled by some of the legal jargon. Here is a link to a transcript of a previous answer he gave.
I’m a local government elector here on the Wirral (basically that means I get to vote in elections to Wirral Council).
Each year, during the audit there is a period of about three weeks when local government electors have a legal right to inspect and receive free copies of accounts to be audited and copies of all books, deeds, contracts, bills, vouchers and receipts relating to them.
Wirral Council can remove any details of employees, but has to seek the external auditor’s permission (in this case Grant Thornton) to remove anything else.
Once the inspection period ends, there is then a period when questions can be asked of the auditor followed by a period when formal objections can be raised or requests for a public interest report.
In case Wirral Council thinks I’m picking on it, this year I made requests to Merseytravel (part of the Liverpool City Region Combined Authority), Merseyside Waste Disposal Authority (also called Merseyside Recycling and Waste Authority), Merseyside Fire and Rescue Authority and Liverpool City Council.
Each of those other bodies managed to respond and provide the information for inspection more or less within the inspection period.
Two of these authorities (Merseyside Fire and Rescue Authority and Merseyside Waste Disposal Authority) provided some of what I requested in electronic format.
Wirral Council however decided that providing me with what I’d estimate at 10% of what I asked for was reasonable. It’s not!
These other public bodies I refer to are much smaller (in terms of staff and budget) than Wirral Council, yet by being flexible saved to give the example as outlined above the internal costs of copying a contract of over 11,000 pages in length. Had I requested such a contract from Wirral Council I would still be waiting as they would insist on supplying it in paper format!
By reversing this decision Wirral Council saved ’thousands in the costs of perhaps adding an extra hour to the next Highways and Traffic Representation Panel public meeting, the cost of it then going on the agenda of the next Regeneration and Environment Policy and Performance Committee public meeting and the cost of a Cabinet Member finally making a decision (along with the associated costs of officers trying to persuade objectors to drop their objections).
I might point out that as I put this information in the public domain had Cabinet reversed their decision at an earlier stage the costs of consultation on the proposed traffic regulation order (an expensive public notice in the local newspaper etc) would have been saved too.
I would suspect that councillors’ use of taxis would be broadly comparable from year to year. So let’s test Cllr Adrian Jones’ assertion.
In response to this FOI request the taxi bill in 13/14 was ~£3k and Cllr Adrian Jones confirmed in answer to my question that for the 14/15 financial year the total cost was roughly the same.
Here are three councillors that got taxis in 13/14 and the costs:
Cllr Moira McLaughlin £755.30 Cllr Pat Hackett £700 Cllr Steve Niblock £493.90
Had anyone of those stopped getting taxis at Wirral Council’s expense the total amount for 14/15 would’ve dropped dramatically.
Yet here are the relevant amounts from the 2014/15 published list:
Cllr Moira McLaughlin £NIL Cllr Pat Hackett £NIL Cllr Steve Niblock £NIL
If these three councillors had all decided to give up getting taxis and the £NIL amounts were correct (the latter point Cllr Adrian Jones states in answer to my question) then the total amount would drop by ~£2k (the combined total of all three). However it hasn’t!
You can see the full exchange between myself and Cllr Adrian Jones below.
Cllr Ron Abbey (who is a member of Wirral Council’s Audit and Risk Management Committee) makes the point before Cllr Adrian Jones that it is implied that this is unlawful and isn’t that terrible to imply such a thing?
Clearly as clearly outlined above, had Wirral Council not flouted a number of its other legal responsibilities I would be able to answer that question and Wirral Council’s cultural attitudes towards its legal responsibilities continue to have the effect of interfering with the freedom of the press and triggering the Streisand effect.
Councillor Adrian Jones makes the point that councillors are trusted not to misuse the public purse paying for their taxis.
Below is a claim form (as I’m being seasonal) from one of Cllr Adrian Jones’ party colleagues, a Councillor Peter Brennan (a councillor at Liverpool City Council) who claimed from Merseyside Fire and Rescue Authority (and was paid for) £5.64 for car mileage expenses to and from a carol concert at St Nicholas’ Church. In the grand scheme of things you may point out that £5.64 doesn’t matter and at least he didn’t get a taxi! However it’s the cumulative cost to the public purse of these matters and the excessive secrecy at Wirral Council that is leading to suspicion as to why despite Cllr Adrian Jones’ claims about openness and transparency that at Wirral Council they are being anything but on this politically sensitive topic!
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