What did Surjit Tour answer to questions about a Freedom of Information request to Wirral Council at the First-tier Tribunal (Information Rights) hearing (EA/2016/0033) (continued)?
What did Surjit Tour answer to questions about a Freedom of Information request to Wirral Council at the First-tier Tribunal (Information Rights) hearing (EA/2016/0033) (continued)?
At the outset I will make four declarations of interests.
1) I am the Appellant in this case (EA/2016/0033).
2) My wife was my McKenzie Friend in case EA/2016/0033.
3) I made the original Freedom of Information request on the 29th March 2013.
4) I am referred to by name (Mr. Brace) in paragraphs 1, 4 and 5 of the witness statement of Andrew Roberts.
Hearing: EA/2016/0033
Court/Room: Tribunal Room 5, 3rd Floor
Address: 35 Vernon St, Liverpool, Merseyside L2 2BX
Date/time: 16th June 2016 10:15 am
First-tier Tribunal (Information Rights) (General Regulatory Chamber)
First-tier Tribunal Judge Mr. David Farrer QC
First-tier Tribunal Member Mr. Michael Hake
First-tier Tribunal Member Dr. Malcolm Clarke
Appellant: Mr John Brace
First Respondent: ICO (Information Commissioner’s Office)
Second Respondent: Wirral Metropolitan Borough Council
The below is an incomplete record written up from my handwritten notes made at the hearing. The below does not cover some of the sections when I am speaking due to the difficulties in taking notes as doing that you end up facing the paper you’re writing on.
Hearing date of 21st September 2016 set for Tribunal over FOI request to Merseyside Fire and Rescue Authority
Liverpool Civil & Family Court, Vernon Street, Liverpool, L2 2BX (the venue for the upcoming First-Tier Tribunal case EA/2016/0054)
First a declaration of interest, as I am the Appellant in the First-Tier Tribunal (Information Rights) case EA/2016/0054. The two respondents are the Information Commissioner’s Office and Merseyside Fire and Rescue Authority.
A date and time has been set for the hearing. It will take place on the 21st September 2016 starting at 10am.
The location for the hearing is Tribunals, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX. A room number (one of the five tribunal rooms) will be allocated on the day.
As a hearing date is now set, the case is sub judice. Therefore comments are turned off for legal reasons.
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Who asked Surjit Tour to gag a debate on Girtrell Court by councillors?
Cllr Chris Blakeley talking about Girtrell Court at the Council meeting held on the 14th March 2016
This morning I submitted an internal review request to Wirral Council as a Freedom of Information request I’d made over twenty days ago hadn’t yet been responded to.
It shows that an unnamed councillor made a query of Surjit Tour before the Council meeting held on the 14th March 2016 as to whether the Girtrell Court motion should be debated at all.
Surjit Tour’s opinion (a copy of which is below) was that Standing Order 17 prevented it, but that councillors could choose to suspend Standing Order 17 and debate it anyway. A copy of his advice to councillors over the attempt at preventing a debate on Girtrell Court is below.
Dear Councillor
A query was received over whether the Notice of Motion (NOM) relating to Girtrell Court submitted by Cllr Blakeley (appearing in the Council Agenda published on 4 March) should be debated by Council at its meeting on Monday, 14 March given that it formed part of the Budget debate and final Council Budget Resolution on 3 March. The proposal/issues relating to Girtrell Court were debated at length by Council at Budget Council. Council has therefore had the opportunity to fully consider this matter. A point of order has been raised as to whether the NOM can therefore be debated within such a short period of time after Council having settled its view on the subject matter. The point of order is a legitimate one.
The relevant Standing Order to consider is:
Council Procedure Rules: Standing Order 17 – Rescission of preceding resolution (page 156 of the Constitution)
(1) No decision of the Council (including a decision taken by a committee or panel under delegated powers) may be reconsidered by the Council on a notice of motion within six months of the date of the earlier decision unless the notice of motion (under Standing Order 7) is signed by 17 members of the Council. If that motion is rejected by the Council neither it nor one to the same effect can be considered by the Council for six months.
(2) No resolution or recommendation (other than a procedural resolution) made by a committee or panel during the course of a meeting shall be rescinded or amended by the committee or panel during the same meeting or any adjournment of it unless there are reasonable grounds for believing that all of the material information was not available at the time that the resolution or recommendation was passed.
Unfortunately given the timetabling of Budget Council and Ordinary Council this month, it has meant that Notices of Motion for the 14 March Council meeting needed to be submitted by 5pm on Monday, 29 February. This was ahead of Budget Council and any final Budget decision being made by Council on Thursday (3 March).
It is important to establish the status of the NOM in this case. I am of the view that NOM received was valid. At the material time, namely the deadline for when NOMs needed to be submitted (Monday, 29 Feb), there was NO decision made by Council in respect of the subject matter detailed within the NOM in question. The outcome of Budget Council meeting could not be assumed – that included any approval of the position as outlined in the Cabinet Budget Proposal in respect of Girtrell Court.
All valid NOMs are considered by the Mayor who determines, with advice from me, which NOM should be debated or referred to Cabinet or a Policy and Performance Committee (or other committee). The Mayor prior to Budget Council agreed for this NOM be debated.
At Budget Council the issues and matters relating to Girtrell Court were debated fully and that included the subject matter appearing in the NOM presented by Cllr Blakeley.
Standing Order 17 seeks to limit Council having to debate(by way of a notice of motion) the same decision within six months of it being made (unless a NOM is signed by 17 members of the Council). Whilst it is accepted that the Notice of Motion in question is not seeking to reopen the entire Budget Resolution approved by Council, it does seek to revisit a key aspect of the Budget Resolution that has been settled within it. The Notice of Motion was correctly submitted and was valid at the time of submission but has in effect been superseded by the Budget Council debate and Budget Resolution that was subsequently passed.
At the time Standing Order 17 was drafted the prevailing circumstances before us were not envisaged; and in fairness would have been extremely difficult (if not impossible) to predict with any degree of reasonable certainty.
Upon considering the application of Standing Order 17 and the NOM proposed by Cllr Blakeley, I am of the opinion that Standing Order 17 in its current form does prevent the NOM being debated at Council on 14 March – despite the Council Summons stating otherwise. However, as the NOM was valid at the time of submission it was also correct for it to have been included in the Council Agenda, published on 4 March. The Agenda should however have stated that the NOM was not to be debated by virtue of Standing Order 17. It is appropriate that this clarification/correction is made at Council on 14 March – and I will duly do so.
It would be remiss of me not to also advise that because the NOM appears correctly on the Council Agenda, any Member can move a motion (properly seconded) and seek the suspension of Standing Order 17 and seek permission from Council for the NOM to be debated. The Council has discretion to overcome the constitutional restriction imposed by Standing Order 17. Council would therefore be the final arbiter of this issue.
I apologise for any confusion caused by the NOM being confirmed as one to be debated on the Council Agenda.
Should you have any queries regarding this matter, please do not hesitate to contact me.
Kind regards
Surjit Tour Head of Legal & Member Services
and Monitoring Officer
Wirral Metropolitan Borough Council
Department of Transformation and Resources
Town Hall
Brighton Street
Wallasey
Wirral
CH44 8ED
Tel: 0151 691 8569
Fax: 0151 691 8482
Visit our website: www.wirral.gov.uk
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WIRRAL COUNCIL goes to the dentist: a short play about FOI and local government
The below is written in memory of my late Great-Uncle Joe who before he retired taught dentistry. I am currently writing an e-book about freedom of information of which the below is an excerpt.
ICO Information Commissioner’s Office logo
WIRRAL COUNCIL, a "most improved" Council is in the dentists’ chair looking worried.
Hovering above the patient in the dentists’ chair is MR BRACE, the dentist. Every tooth of WIRRAL COUNCIL he has taken out before is displayed proudly in a cabinet in the waiting area and visitors leave comments about them.
WIRRAL COUNCIL (mumbling and looking worried): You want to take my teeth out, again!? So the public can look at my teeth!?
MR BRACE: Only some of them, don’t worry you’ll grow new ones! Or I could take X-rays of them instead?
WIRRAL COUNCIL (mumbling): I’ll have to think about this and get back to you in twenty working days.
Twenty working days pass. Nothing happens. MR BRACE phones WIRRAL COUNCIL.
MR BRACE: You said you’d get back to me!
WIRRAL COUNCIL (alarmed): Sorry, it will all cost too much and end up taking over 18 and a half hours of my time! (slams the phone down)
MR BRACE rings WIRRAL COUNCIL again.
WIRRAL COUNCIL (even more alarmed): Sorry now you’re just being… vexatious! (slams the phone down again)
MR BRACE rings ICO and tells them what happened.
A year later WIRRAL COUNCIL rings the dentist.
WIRRAL COUNCIL: Sorry I’ve changed my mind you’re not being vexatious, but it’ll still cost too much!
ICO after a year of scratching their head tell WIRRAL COUNCIL it won’t cost too much.
WIRRAL COUNCIL takes some of its teeth out (reluctantly) and hands them to the dentist. It claims despite conducting a thorough search of its own mouth, that the teeth it thought it had, and claimed it had and had been telling everyone it used for chewing food for two years, aren’t actually there.
It tells MR BRACE and ICO that he cannot have the other teeth because they contain "personal data" and after consulting its solicitor that to hand over some teeth would be "prejudicial to the effective conduct of public affairs".
MR BRACE asks WIRRAL COUNCIL to think again. WIRRAL COUNCIL says no, so he asks ICO.
WIRRAL COUNCIL (after trying to ignore MR BRACE) tells him and ICO that MR. BRACE is being vexatious and he can have no more of its teeth.
Then WIRRAL COUNCIL changes its mind and over two years after this saga started, hands over one more of its teeth (but with bits blacked out). Eventually it removes the blacked out bits.
ICO tell WIRRAL COUNCIL it is being very naughty with MR BRACE, feels sorry for Wirral Council so it let’s it keep one tooth, but also says to stop calling MR BRACE vexatious. ICO asks WIRRAL COUNCIL to provide a fresh response.
WIRRAL COUNCIL doesn’t like this!
WIRRAL COUNCIL just refers MR BRACE and ICO to its earlier decisions.
MR BRACE contacts ICO again. However ICO conveniently lose what most of what MR BRACE told them.
ICO tell WIRRAL COUNCIL once again it is wrong, ICO tell WIRRAL COUNCIL to hand over two more of its teeth.
MR BRACE thinks the whole thing (now lasting over 3 years) is getting very silly indeed!
So he asks for a meeting, where independent people at a "Tribunal" can decide whether WIRRAL COUNCIL should have to hand over its teeth (whether blacked out or not).
WIRRAL COUNCIL hands over two more of its teeth, again with bits blacked out.
WIRRAL COUNCIL hires a barrister to plead with the Tribunal to help keep its teeth.
ICO says its not going to come to such a meeting about WIRRAL COUNCIL‘s teeth but sends a written response.
A hearing date is set (16th June 2016 starting at 10:00am at The Employment Tribunal, 3rd Floor, Civil & Family Court, 35 Vernon Street, Liverpool, L2 2BX) and the rest is yet to be decided!
But why is making a simple FOI request like pulling teeth?
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Wirral Council valued Girtrell Court land and buildings at £3,402,880.00 in March 2013
Cllr Phil Davies (Leader of the Labour Group) speaking about Girtrell Court at the Extraordinary Council meeting (4th April 2016)
One of the questions raised during the consultation on the closure of Girtrell Court was what would happen to it if it was closed. Wirral Council’s Director of Adult Social Services Graham Hodkinson told the Liverpool Echo last year that the Girtrell Court site could be used for extra care housing, “There is an increasing demand for extra care housing and the site of Girtrell Court is ideally suited for this purpose which will help support the aging population whilst delivering financial benefits to the council.”
The 2012/13 asset register assigns a value to the buildings of £2,422,880.00 and land of £980,000.00 (total £3,402,880.00) valued on the 11th March 2013 (as part of its regular quinquennial or five yearly valuation).
