The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds

The incredible £20,000 report into Dave Green/Colas that Wirral Council wouldn’t release on “data protection” grounds


Roadworks on the Wirral from 2011
The Colas contract included maintenance of Wirral’s roads

Three and a half months ago I submitted a FOI request for a dozen documents held by Wirral Council that were given to Richard Penn before writing his thirty-nine page report into Dave Green’s involvement in the Colas contract. Over three months later they have replied, providing a copy of the Council’s conflict of interest policy and conflict of interest procedure.

What’s interesting is what’s in the list of ten documents requested that they refused to supply on “data protection” grounds. One of these was a report that cost Wirral Council £20,000 from their then auditor the Audit Commission. It was a twenty-six page Public Interest Disclosure Act report into what happened during the tendering of the multi-million pound Colas contract. Despite Wirral Council’s reluctance to release it in response to my FOI request it was in fact published on their website as it was considered during an Audit and Risk Management Committee meeting that met in September 2010.

Here are some quotes from that report by the Audit Commission that obviously Wirral Council didn’t want to release in response to my Freedom of Information Act request:

“However, the issues raised were genuine concerns and our review did highlight some weaknesses including a lack of clarity about separation of duties, inadequate records and documentation and the need to clarify corporate systems for raising and recording potential conflicts of interest. There were also examples of a lack of proper consideration of or disregard of procedures, for example meeting with potential tenderers during the period between the post tender qualifying stage and tender
submission.” (page 7)

“These weaknesses potentially left the Council and individuals open to external challenge. If there had been external challenge to the contract by an aggrieved bidder, the remedy could have led to substantial damages being paid and loss of reputation by the Council. Going forward, a new EU Remedies Directive applicable to new procurements advertised after 20 December 2009 means that aggrieved bidders now have tougher remedies against public authorities that break procurement rules. The High Court will be able to set aside signed contracts resulting in delays to services, as well as significant and costly litigation and further procurement costs (see Appendix 3 for further detail).” (page 7)

“As noted at paragraph 1, the PIDA concerns were raised with us following an internal PIDA investigation. The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they are complied with to ensure that individuals have confidence that issues will be fully investigated and lessons learnt.” (page 7)

“Concerns were raised with us that a meeting was held by the Director of Technical Services and another senior officer with one of the tenderers between the post qualifying stage and tender submission.” (page 11)

“However, the meeting was not minuted and so there is no formal record of what was actually discussed. The Director of Technical Services and the other senior officer indicated that the reason for the meeting was to clarify whether tenderers could bid for both the main tender and for the sub-contract work for the in-house tender. Holding this meeting and failing to record it was clearly inappropriate and contrary to procedure and put the Council at risk of non-compliance with procurement regulations and the tenderer at risk of disqualification.” (page 11)

“The invitation to tender clearly specifies the procedure for enquiries from potential tenderers in order for the process to be open and fair for all concerned and to ensure there is no canvassing which would result in disqualification from the tendering exercise” (page 11)

“Concerns were raised with us that the Director of Technical Services had failed to declare a potential conflict of interest regarding a personal friendship with an individual in one of the firms bidding for the contract.” (page 12)

“Our review confirmed that a conflict of interest form was submitted by the Director but this was done retrospectively. We found no evidence of any information being shared as part of this association.” (page 12)

“The Director of Technical Services completed a conflict of interest declaration on 11 November 2008 and submitted it to the Chief Executive to be considered at his next annual Key Issues Exchange (KIE) meeting which was held in November 2008. However, it was following the award of the contract (16 October 2008) and should have been submitted and discussed with the line manager at the start of the tendering process. In addition, as the tenderer was an existing contractor, there should have been existing annual declarations on file. This retrospective declaration has clearly allowed the relationship between the Director and the individual to be viewed with suspicion.” (page 12)

“The Director of Technical Services indicated that the individual in the firm is an acquaintance who is a close friend of his brother who had previously worked for the firm. Although the Director was aware that the individual worked in the firm he judged that there was no conflict to declare. Once he became aware that the individual would be involved in the contract going forward the Director submitted his conflict of interest form in line with his judgement and his interpretation of the Council’s procedures.” (page 12)

“However, Council procedures clearly state that in order to manage conflicts of interest (including any perception of a conflict), employees should complete the form even if there is nothing to declare and return it to their line manager at the KIE and any amendments should be made immediately. During our review we found no evidence of any annual declarations of interest for the Director prior to the one submitted on 11 November 2008 apart from those covering the period when his brother worked for the firm. However, the absence of annual declarations was not unusual in the Council at that time and was raised as an issue in Internal Audit reports during 2008 and a memo dated March 2009.” (page 12)

“The key issue is whether the Director or his line manager should have made the judgement about whether and when a potential conflict should be declared. Our view is that it was the responsibility of the Director to make the line manager aware of his ‘acquaintance’ when the firm first contracted with the Council and this should have been reviewed when the tendering exercise started and the firm received an invitation to tender. The judgement about whether it was a conflict (or a possible perceived conflict) then rests with the line manager and arrangements could have been put in place to ensure that it was appropriately managed and any ‘perceptions’ of conflicts rebuttable.” (page 13)

“As noted above, the absence of annual and updated declarations as well as poor evidencing of review and consideration by line managers was not unusual within the Council. We also found during this review that there were weaknesses in the procedures around the employment of consultants, for example ensuring sign up to confidentiality clauses and completion of conflict of interest forms and supporting consideration (one of the consultants had previously worked for the winning firm).” (page 13)

“The Council needs to continually consider the adequacy of its Whistleblowing procedures and how well they were complied with to ensure that individuals with genuine concerns have confidence that issues will be fully investigated and lessons learnt.” (page 15)

“During the period when the contract was tendered and let any external challenge by aggrieved bidders could have lead to damages being paid.” (page 23)

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Surjit Tour tells Wirral Council’s councillors that they have to accept filming at their public meetings

Surjit Tour tells Wirral Council’s councillors that they have to accept filming at their public meetings

Surjit Tour tells Wirral Council’s councillors that they have to accept filming at their public meetings


Birkenhead Constituency Committee (10th April 2014) Birkenhead Town Hall
Left to Right Surjit Tour (Head of Legal and Member Services), Councillor George Davies, Rt Hon Frank Field MP (Chair), Dawn Tolcher (Birkenhead Constituency Manager)

In an update to the blog post headlined Does Pickles think that Wirral Council’s £22,500 newspaper plan “pours taxpayers’ money down the drain”?, something seems to have happened “behind the scenes” as Surjit Tour had this to say to councillors on the subject at last night’s Transformation and Resources Policy and Performance Committee on an item about the Local Audit and Accountability Act 2014 (the bit he says about Wirral Council’s compliance with the Code of Recommended Practice on Local Authority Publicity is the relevant part):

“Thank you Chair, just very briefly taking you through this particular report. It’s a report that’s already been considered by the Audit and Risk Management Committee on the 14th March and the report seeks to summarise the key provisions of the Local Audit and Accountability Act 2014.

On the 13th August of 2010 the government announced its intention if you recall to abolish the Audit Commission and replace it with a decentralised process and arrangements with regard to the audit of public bodies. This Act seeks to set out the necessary framework in relation to the audit arrangements and I’ll turn your attention if I may to page fifty-seven of the report and that provides an explanatory note in terms of the key features of the current and new arrangements that are being introduced.

Paragraph 2.1 sets out and highlights features of the new arrangements and notably the abolition of the Audit Commission and with a view to arrangements being put in place. Under the new arrangements public bodies will be required to appoint an external, independent auditor on the advice of an independent audit panel. The audit panel which the Council must have in place and each local authority is required to have that audit panel in place to discharge their responsibilities, the appointment of an auditor. Various other… may be deferred on that particular panel by the Secretary of State.

The make up of that particular panel it talks about in the report of the recommended changes in the explanatory forward. The actual amend to the legislative framework with regards to council tax referendums and the revised measures to ensure local authorities’ compliance with the Code of Recommended Practice on Local Authority Publicity.

The Act also then introduces greater transparency and openness to meetings of Council meetings in particular by allowing local residents to film, tweet, blog and access the information in relation to decision-making in those committees. So it goes further than just the filming and the arrangements that we currently have.

We also then have arrangements and changes with regards to any local audit, taking account value for money elements which needs to be also factored in and we have a transfer of responsibilities of setting a new code of audit practice going now to the National Audit Office as part of these arrangements. So you see that in a bit more detail in paragraph three some of those provisions there in more detail.

In terms of our current arrangements, there are outsourcing arrangements in place and as you know we have Grant Thornton who is the external auditor for Council and that arrangement continues until 2017 at which point arrangements will be put in place for the appointment of a new local auditor and this is where the new local auditor panel will be engaged in the procurement of that particular body.

There will be a series of approved, accredited firms that will be able to do that and they will be made subject to assessment and criteria by the Financial Reporting Council and relevant professional accountancy bodies who are regulated in the provision of local government services.

In terms of the panel itself, details of its make up are set out in paragraph six of the explanatory note and this is where we need to have a panel which would consist of a majority of independent members and it would be chaired by an independent member. Now our Audit and Risk Management Committee can act as the Council’s auditor panel under the act if so required and if we need to appoint individuals then there’ll be a process that’ll need to be gone through.

You’ll recall that the Audit and Risk Management Committee, in fact it happened last year, indicated that it wished to be a majority of members of the Audit and Risk Management Committee to be independent and there will, arrangements are in hand to make those necessary arrangements. However the Secretary of State is still yet to publish regulations in relation to this particular Act, particularly the criteria and it needs to be expanded on what appears in the Act itself. So the draft regulations are not complete in terms of what the criteria will be for the appointment of independent members and as such a decision has been taken to await the Act or indeed those final regulations to ensure that any appointment that is made is compliant with those regulations.”

The Chair said, “Thanks Surjit, any questions, comments? Pat?”

Cllr Patricia Glasman said, “Paragraph 2.1.5 access information relating to the decisions made in those meetings, I wonder if you could just expand a little bit on that specifically the Pensions Committee we have attachments which are not available to the public. It’s business meetings and I just wondered was there any change to really the way those are treated?”

Surjit Tour replied, “No, there’s no, those changes with regards to information at committees considering the exempt schedules, the schedules before them so those provisions remain unchanged. This is very much the ability to report in open session at committee meetings, individuals being able to not only film, but to tweet, blog information in real-time and as decisions are made.”

The Chair said, “If there’s no further questions, can we agree the recommendations on page fifty-five, 11.1 agreed?”

The Committee agreed the following recommendation:

That the Committee notes the Report and Appendix 1 concerning the changes being introduced by the Audit and Accountability Act 2014 and its implications.

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What Everybody Ought to Know About Taxpayer Funded Monitoring Of Blogs

Unusual blog entries lead to a story about media monitoring, Tesco, Audit Commission and Gorkana Group Limited

As this is a WordPress blog, I have access to statistics about visitors to it. Normally the websites referring traffic are just search engines, other blogs and social media sites (Twitter etc), but this week a few unusual entries caught my eye.

The first one were two referrals from, the referral string helpfully included two pages, which were the comments section on the recent writeup about the planning application in Wallasey Village being turned down and the page itself. When I dug a little deeper I found out that Social 360 do corporate social media monitoring for Tesco. Fair enough I thought, they’re a big brand so it makes sense for them to keep an eye on what’s being written about them online.

Then I spotted another unusual entry . Hmm that’s strange I thought, why would the Audit Commission (or what’s left of them after the audit work got outsourced) be interested in my blog? It turns out the Audit Commission pay a PR firm called Gorkana Group Limited for “media monitoring”. They pay them monthly amounts between £200 and £300 a month.

It seems when the Conservatives were in opposition back in 2008 they called the spending of £16 million on media monitoring by various government departments and quangos “a colossal waste of money, and taxpayers will be furious that when everyone else is tightening their belts the last thing to get cut is the government’s own PR”. Since then they’ve gone curiously quiet on the subject.

So if you have a blog and have written about Tesco or the Audit Commission and see some unusual referral strings now you know what they are!

Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Cllr Harney “We don’t know where we came from, we don’t know where we’re going”

Cllr Tom Harney (Liberal Democrat Group Leader)’s response to Labour’s proposed revisions to Wirral Council’s constitution

Continued from Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Conservative Leader Cllr Jeff Green responds “We remember the libraries, we remember Martin Morton, we remember what you did in closing care homes, we will make sure that these issues are publicly debated whether the Labour Party likes it or not”

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Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Cllr Harney “We don’t know where we came from, we don’t know where we’re going”

Cllr Tom Harney referred to the Anna Klonowski Associates report and the public interest reports and he felt the Audit Commission “didn’t get it quite right” in investigating various officers. He said although councillors had political differences that he did not believe they were “running a basket case Council”. Cllr Harney said the question now was, “What really was happening?”

He asked if they were coming from a basket case Council or one that had problems, similar to other Councils, which hadn’t received the same publicity as Wirral Council surrounding their problems because Wirral Council had had a whistleblower. Cllr Harney asked, “If he hadn’t said anything publicly, what would our perception be?” and that surveys showed that over half of local government workers had experienced bullying at work. He said, “We don’t know where we came from, we don’t know where we’re going.”

Cllr Harney said that too many comments referred to mythical golden councils around the country. He asked how can they guarantee to the people of the Borough and employees that they’ll support them when they raise problems? Cllr Harney said “there’s a difference between having rules and keeping to them and maybe that’s a lesson that we and many other Councils should learn”.

Somebody heckled Cllr Harney, the Mayor told Cllr Harney just to ignore the heckler.

He said that the Improvement Board was a body that didn’t make decisions, hasn’t got a decision-making ability and no means of enforcing anything. Cllr Harney thanked the Mayor for his forbearance.

Continues at Council (Extraordinary) (Wirral Council) 30th April 2013 | Revisions to the Constitution | Cllr Blakeley “Where will it end, what next? Will Wirral be twinned with Pyongyang?”.

A roundup of Wirral Council meetings: Sustainable Communities, Council Excellence and Audit and Risk Management

Roundup of Wirral Council meetings: Sustainable Communities (Biffa and bin collections, flooding, libraries), Council Excellence (overspends, Social Services debt), Audit and Risk Management (HESPE Action Plan, gifts and hospitalities procedures)

In a change to the more detailed format, below are brief write ups of three meetings this week.

Sustainable Communities Overview and Scrutiny Committee 29th January 2013

There was a long presentation by Biffa, followed by questions from councillors. The meeting also discussed recycling, dog fouling enforcement, flytipping (including a recent rise in asbestos flytipping), managing highway structures (bridges, culverts etc), libraries, Wirral Heritage Strategy, food hygiene ratings, no cold calling zones and climate change.

Councillors asked Biffa about the recent missed bin collections and how the new changes (winter tyres and snow shoes) affected collections during the recent cold weather. On food hygiene the Food Standards Agency website was highlighted which shows the star rating for the 1,698 food businesses on the Wirral. A councillor was surprised at the nearly two hundred businesses on Wirral with a one star (which means major improvement necessary) or two star (which means improvement necessary) rating, however most businesses had a rating of four or five stars.

The increased use of volunteers in libraries was discussed and the problem of some households in areas at risking of flooding having problems obtaining insurance was also highlighted.

Council Excellence Overview and Scrutiny Committee 30th January 2013

Most of the meeting was a discussion about Wirral Council’s finances including measures to reduce this year’s overspend and how overspends in the past had been paid for by one-off measures that wouldn’t be available in future years. The investigation into Social Services debt was discussed also.

Audit and Risk Management Committee 31st January 2013

The HESPE Action Plan provoked discussion at this meeting. David Armstrong gave a verbal update on it and said that he’d written to all directors and acting directors for an update over the dates in the plan and had received no correspondence to say that they wouldn’t be able to stick to the timescales. The Acting Director of Technical Services had written to him stating there had been no interest from the private sector in consultancy work.

The Action Plan was being monitored by Fiona Johnstone’s department and was going to the Improvement Board and Council Excellence committee as well as being incorporated into Concerto. He assured people of the focus on it and that the actions would be followed through. Cllr Ron Abbey referred to it as a pantomime, saying “Did he or didn’t he?” and asked how much it had cost? Cllr Foulkes said that similar matters were not the remit of their committee, that there’d been two contrary reports, the Audit Commission report and the Penn report. He wanted continuing dialogue with the whistleblowers which he thought was the best way to deal with the matter. Cllr Ron Abbey said he would take that on board. Cllr Foulkes said they needed to find the common ground between the points in the Penn report and the action plan.

Cllr Green welcomed the reassurance, but wanted tests that the actions had been carried out. He said they’d had a range of reports that lessons had been learnt and a culture embedded, so it was useful to have it in writing. He referred to project management problems and who was supposed to be in charge of the Project Board and referred to issues with clarity, responsibility and project management.

Cllr Brighouse said he broadly endorsed the remarks, but the Penn report was ongoing as the recommendations and outcome were still to be resolved and agreed. He said it was appropriate to have some discussion covering the issues and whether there were any governance implications but it was “wrong to pretend there was nothing there”.

The Chair, Cllr Jim Crabtree said there’d be a further report next meeting.

There was also an update given (again by David Armstrong) on proposed changes to the gifts and hospitality/conflicts of interest procedures for officers.

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