Does Wirral Council believe that the will of the people shall be the basis of the authority of government?

Does Wirral Council believe that the will of the people shall be the basis of the authority of government? I was planning on writing today about the implications of the Comprehensive Spending Review (however that’s something that would really benefit from a very in-depth piece), but Wirral Council have published an interesting document about Cabinet … Continue reading “Does Wirral Council believe that the will of the people shall be the basis of the authority of government?”

Does Wirral Council believe that the will of the people shall be the basis of the authority of government?

Wirral Council Cabinet meeting at Birkenhead Town Hall Thursday 12th March 2015 Left to right Surjit Tour, Cllr Phil Davies and Joe Blott
Wirral Council Cabinet meeting at Birkenhead Town Hall Thursday 12th March 2015 Left to right Surjit Tour (Monitoring Officer), Cllr Phil Davies (Leader of the Council) and Joe Blott (Strategic Director (Transformation and Resources))

I was planning on writing today about the implications of the Comprehensive Spending Review (however that’s something that would really benefit from a very in-depth piece), but Wirral Council have published an interesting document about Cabinet meeting report protocol.

That probably sounds rather boring, but it shows the informal arrangements that everyone knew existed behind the scenes before reports were published are being put on a more formal footing.

Although much of it is probably the rather dry nuts and bolts and let’s face it there will still be people submitting reports late and chairs not following procedures with regards to late reports, it does seem an attempt at least to make what the press and public end up reading at least not full of obvious errors (and I’m not talking about spelling mistakes).

The report does state what I knew already, that the SLT (Senior Leadership Team or senior managers at Wirral Council) see reports before they’re published and have a chance to suggest edits.

Even before each public Cabinet meeting happens, Cllr Phil Davies has a meeting of his Cabinet (called a briefing) which the officers are expected to attend (usually in what’s called the Cabinet Briefing Room behind locked doors at Wallasey Town Hall) where he goes through the entire agenda and matters are discussed in private.

Interestingly, this report shows that the Cabinet briefing is used as a filter and the Cabinet briefing can be used to change the reports that are later published. I presume this practice of writing reports by committee leads to some bits being watered down.

There are also four compulsory steps a report has to go through before the press or public see it. It seems reports have to be run by legal (which makes me laugh considering some of the legal howlers I’ve pointed out on this blog over the years), human resources (which is understandable as many of the decisions are going to have HR implications), finance (again understandable) and the Head of Service (which has been standard practice for years anyway). As there are vacant heads of service posts, in that situation the relevant strategic director signs it off.

However there is one very important group of people this all leaves out, the public. Anyone involved with politics will of course comment and say that the last group of people involved in political decisions are the public.

This is what Wirral Council’s constitution states about decision-making:

13.2 Principles of decision-making
All decisions of the Council will be made in accordance with the following principles:

(i) proportionality (i.e. the action must be proportionate to the desired outcome);
(ii) due consultation and the consideration of professional advice from officers;
(iii) respect for human rights;
(iv) a presumption in favour of openness;
(v) clarity of aims and desired outcomes; and
(vi) Wednesbury* reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations).

*This piece is too short to provide an in-depth description of the legal definition but it refers to the case law definition of "unreasonable" which is a reference to a Court of Appeal case from 1947, [1947] 2 All ER 680, [1947] EWCA Civ 1, [1948] 1 KB 223, [1948] KB 223.

Every policy disaster (whether the library closure fiasco which resulted in a public inquiry or half a dozen others I could mention here) has resulted because the public weren’t involved (or were involved/consulted but politely ignored by politicians and officers who had the arrogance to think they knew better) and/or the above principles weren’t followed.

Let’s take the Fort Perch Rock car park charging U-turn as an example. Principle (ii) above states the "consideration of professional advice from officers" yet officers didn’t tell them that if they started charging at Fort Perch Rock car park then the lease the Council had for the Marine Point development would lead to charges at hundreds of spaces at the other currently free car parks.

No, it fell to a local blogger to publish the pages of the lease, a large petition against it of thousands of people and a campaign against the charges from a former Conservative councillor in the marginal seat of New Brighton. This was despite Labour’s backbench councillors warning the Cabinet at at least one public meeting not to go ahead with plans for charging.

Next week, the Transformation and Resources Committee will discuss the high-profile issue of a fire station in Saughall Massie. At the Merseyside Fire and Rescue Authority meeting earlier this year where the decision was made, the petition organiser was given five minutes to speak and a delegation from the Saughall Massie Conservation Society was also given the opportunity to speak for up to five minutes.

Yes, you are probably going to say, this ties in with (iii) above, respect for human rights as article 21, which Wirral Council signed up to when Cllr Adrian Jones was Mayor quite clearly states

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
 

Notice the importance of that word directly or through freely chosen representatives (that is politicians).

The other public bodies I report on either have mechanisms written into their constitution (for example Liverpool City Council has a regular public question time slot at many of its meetings and I’ve mentioned the mechanisms that Merseyside Fire and Rescue Authority has), so people can exercise their rights at public meetings and have their say before the decision is made.

At Wirral Council the public at public meetings get frustrated and heckle instead (then get told to shut up by the Chair or clear off which does show some politicians’ attitude towards the public outside of elections).

The Chair at last night’s meeting (despite his wish to get home in time to watch Coronation Street) tried to let many taxi drivers have their say (some more than once) before the decision to consult on increasing hackney carriage fares was made (if a decision is made following the consultation it’ll mean fares go up in time for Christmas).

Yet if there’s one point I am trying to make from this maybe boring piece about Wirral’s politics, it’s that the public should be more involved and you don’t encourage the public to turn up by expecting them to sit through meetings in silence and not have any influence over decisions that are going to affect their lives.

At the moment taxi drivers have more influence over decisions as there is a Joint Consultative Committee that meets regularly behind closed doors than I do over say Wirral Council’s filming of public meetings policy.

Yes, this probably sounds like as to why it’s a good idea to have politicians, or for the kind of public interest journalism I spend a lot of time doing but the point I’m trying to get at is one that Wirral’s political system doesn’t seem to have quite grasped which is "the will of the people shall be the basis of the authority of government".

At Wirral Council this seems to have morphed in the past to "the will of the officers shall be the basis of the authority of government" (and we expect politicians to rubber stamp decisions we refer to them).

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Will Wirral Council's Cabinet decide to close Lyndale School on the 31st August 2016?

Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?

Will Wirral Council’s Cabinet decide to close Lyndale School on the 31st August 2016?

                                                                

Councillor Tony Smith at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith, Cllr Bernie Mooney, Lyndzay Roberts
Councillor Tony Smith at the Special Cabinet Meeting of 4th September 2014 to discuss Lyndale School L to R Cllr Stuart Whittingham, Cllr Tony Smith, Cllr Bernie Mooney, Lyndzay Roberts

One of the things I’ve mulled over the past few days are the papers published for the special Cabinet meeting on Thursday 17th December. Due to the volume of paperwork to do with this item, this small piece can’t do justice to the matter so I suggest you read the paperwork for that agenda item on Wirral Council’s website in full.

Sadly for Tranmere Rover’s fans (issues to do with the training ground are agenda item 4) it is agenda item 3 (Report Detailing the Outcome of the Representation Period about the Proposed Closure of The Lyndale School) and its six appendices that is the subject of this piece.

The whole matter is also connected to this Freedom of Information Act request I made on the 20th November 2014 for the consultation responses (refused yesterday on s.21 grounds as redacted consultation responses (99 A4 pages of them) were published as part of the Cabinet papers here).

I will probably request an internal review of the Freedom of Information Act request later today as Wirral Council (due to the redactions) have not supplied me with the consultation responses as much information is missing and they haven’t given a reason under the Freedom of Information Act legislation as to why.

I also have put in a request for a question to Cllr Tony Smith at next Monday’s Council meeting (to which I’ll get a supplementary question), the question (that I emailed in on the 4th December 2014) is this:

This is my question for the Council meeting on the 15th December 2014 to Cllr Tony Smith (Cabinet Member for Children and Family Services).

——————————————————————————————————-
Wirral Council recently had a four-week consultation on the closure of the Lyndale School in Eastham and there will be a special Cabinet meeting later this month on the 17th December 2014.

Can you please answer:

(a) how many responses were received by Wirral Council to the latest four-week consultation on closure of the Lyndale School,
(b) whether the text of the responses to the latest four-week consultation will be published in full (rather than a summary in a Cabinet report) and if so when,
(c) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read all the written consultation responses to the four-week consultation on closure prior to making their decision on the 17th December 2014

and

(d) whether all Cabinet Members making a decision on the 17th December 2014 will in advance of making a decision at the meeting of the 17th December 2014 have read the statutory guidance for decision makers on this matter issued earlier this year by the government which is available online?

——————————————————————————————————-

Obviously parts (a) and (b) have been answered by the Cabinet papers being published. Hopefully in answer to (c) he will give the answer that he and the other Cabinet Members will find the time between now and the Cabinet meeting on Thursday evening to read the 99 pages of consultation responses and in answer to (d) the 76 pages of statutory guidance.

The current recommendation from officers is that the school is not closed on the 31st December 2015, but is closed on the 31st August 2016 instead.

There are many matters I could write here about the decision to be made, however I will make these points. If I remember correctly Wirral Council’s constitution in Article 13 (principles of decision-making) specifically Article 13.2 states that when reaching decisions councillors (bear in mind Council here also means decisions made by Wirral Council’s Cabinet) that:

“All decisions of the Council will be made in accordance with the following principles:

(a) proportionality (i.e. the action must be proportionate to the desired outcome);
(b) due consultation and the consideration of professional advice from officers;
(c) respect for human rights;
(d) a presumption in favour of openness;
(e) clarity of aims and desired outcomes; and
(f) Wednesbury reasonableness (i.e. the decision must not be so unreasonable that no reasonable Council could have reached it, having taken into account all relevant considerations, and having ignored irrelevant considerations). ”

Some interesting points I wish to make here, only the professional advice from officers needs to be considered. If officers are for example giving amateurish (not professional) advice or have flat out got things wrong it doesn’t need to be factored into the decision.

The consultation responses have been redacted heavily but the advice of officers hasn’t.

What are the clear aims of closing down the Lyndale School (on whatever date)?

Bearing in mind they have a legal duty, that is they must pay regard to the statutory guidance at all stages of the decision-making process on closing the school (for example at the earlier Cabinet meetings, the Council meeting, the Coordinating Committee meetings) as the statutory guidance (published in January 2014 and presumably there was earlier guidance before this) hasn’t been included on the agenda until now can that actually be proved for the earlier decisions that led to this?

Have all the human rights considerations been properly considered? There are matters beyond what I’ve written here that I may bring up in my supplementary question on Monday evening.

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If Lyndale School closed: what might happen next?

If Lyndale School closed: what might happen next?

Councillor Tony Smith (Cabinet Member for Childrens Services) talks at a meeting of Wirral Council's Cabinet about deciding to consult on closing Lyndale School (16th January 2014)
Councillor Tony Smith (Cabinet Member for Childrens Services) talks at the meeting of Wirral Council’s Cabinet which decided to consult on closing Lyndale School (16th January 2014)

If Lyndale School closed: what might happen next?

                                    

Usually I write about other people. However today because personal experience and stories shape who you are I felt the need to share some of my history as a child to make a number of points about the Lyndale School Closure consultation.

From ages four to ten, I went to a primary school in Upton that I really liked and enjoyed called St. Josephs Upton. At age ten, I was transferred to St. Josephs Birkenhead in the September of 1991. Both were great schools and this is in no way meant at all as any criticism of how either school was run.

I found myself taken away from the people I’d known and grown up with in Upton and put in an unfamiliar school I didn’t know my way round. To make things worse I no longer had my best friend to talk to and with it being the last year of primary school, the other kids had known each other for the last six years. I was the outsider.

Trying to make the best of a difficult situation I tried to fit in, but I found coping with the change very stressful, in fact extremely stressful would be a better way of describing it. To give one illustration, I remember collapsing and blacking out waiting in a dinner queue that week. The other kids and teachers did their level best to be welcoming, I can’t fault them on that but I just had a very hard time coping. It all took its toll on my health and after a week I ended up being admitted to Arrowe Park Hospital for days because the impact it had on my asthma.

In Arrowe Park Hospital, hospital school was only in the morning. I remember being puzzled that the school there finished at lunchtime and being told to go back to the ward! The staffing ratio (very different to the mainstream schools I was used to) was such that things were tailored on a very personal level and what the children could cope with because of their poor health. The small numbers of children there helped dispel the feelings I’d had of being lost (both in the feeling sense and literally as I didn’t know my way round) in a large school. In fact the small size of the hospital school (something that’s been given as a reason for closing Lyndale School down) was a positive for many reasons.

Five months later (still unhappy) I was transferred back to my previous primary school.

So why do I bring this up? Taking a young child out of a school and away from a school they’re used to, away from their friends, teachers they know and places they’re familiar with is something that very difficult to fully understand unless it has happened to you.

One of the points brought up by an officer during the consultation was that children have to change schools when they go to secondary school! This is not a fair comparison. The move to secondary school is very different as such a change is known and planned for years in advance. The change to secondary school everyone experiences together at the same time.

My health as a child is nowhere near the level of ill-health experienced by the children at Lyndale School. I’m sure (from an educational perspective) they have a somewhat comparable experience to that that I had at the hospital school, with a very tailored educational experience catering for their individual needs. Yet if one of them was put through what I describe above, whatever well-meaning “measures” are put in place by the “professionals” it would have far more damaging long-term effects than it did on me.

It wouldn’t be the same as what happened to me, it would be an experience far, far worse than a bad time from my childhood I still remember twenty-four years later. Julia Hassall has stated many times that the welfare of the children is important. Based on my personal experience (as outlined above), it was not in my interests for my primary school to be changed at age ten. The reasons given by the person who made the decision were to do with other people’s interests, not my interests and I had been against the change (but when does the world ever listen to a ten-year old?)

This is what will happen though if Lyndale School is closed and the children are transferred elsewhere. The children (the ones affected by this) won’t understand why it’s happening. There won’t be the option to go back as the Lyndale School will have been been closed. It will cause tremendous stress and upheaval that whatever the professionals may say about it being managed and measures being put in place to help with the transition, will have an effect on the children’s health.

Coping with the change will make the ones who have seizures more likely to have seizures. Those with breathing difficulties will have their condition made worse by the stress and as I did will black out (with all the problems that can cause). A certain proportion will react as I did and have such a rapid deterioration in their health that they end up in hospital. It may even shorten the life of some. These are extremely serious considerations.

Perhaps it is difficult for politicians that don’t have a professional background in education or health to fully understand these arguments. I’m sure there are some sceptics that feel that these effect are exaggerated by people keen to prevent the school being closed. They’re not!

History is littered with warnings and those who don’t heed its warnings are doomed to repeat its mistakes. I’m still around decades later, despite what happened to me to try and warn of what might happen.

In Charles Dickens’ A Christmas Carol there is a ghost of Christmas Past, Christmas Present and Christmas Future. In this analogy Wirral Council is seen as Ebenezer Scrooge. The warnings of Christmas Past, Christmas Present and Christmas Yet to Come have been given loud and clear to any councillors listening. It is getting to the stage where Scrooge has to change his ways. In the book Scrooge became a kinder, generous and more compassionate person, will Wirral Council follow the same path on Lyndale School or end up making an unpopular wrong choice for the wrong reasons that could have very serious consequences?

Wirral Council has a legal duty to ensure that all its decisions are compatible with people’s human rights. I brought up the right to education at the last consultation meeting but what about the effect of closing the school on people’s right to life?

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Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

Government publishes privacy (8), freedom of expression and assembly (10&11) human rights arguments on filming public meetings law

                        

I thought it was about time to give a brief update on the filming issue and how the Local Audit and Accountability Bill is progressing through the Houses of Parliament.

On Tuesday it finished its last stages in the House of Commons (third reading and report stage) and is expected to become law around February 2014. Sadly when it becomes law in February 2014 it doesn’t settle the filming issue as section 40 (entitled access to local government meetings and documents) in the Local Audit and Accountability Bill around filming which you can read for yourself on Parliament’s website merely grants the power to the Minister to make further secondary legislation in this area.

Also in its commencement section (49(2)) which you can also also read in the same document on Parliament’s website the section on filming (as well as the more controversial section on local authority publicity) won’t come into effect until two months after the Local Audit and Accountability Bill becomes law (which if it does become law in February 2014 means it’ll be April 2014 at the earliest before there is secondary legislation on the matter).

As nobody really knows what the wording of the secondary legislation will be yet and section forty is open to a number of interpretations there have been some concerns expressed about what form it will take. I think it’s already been mentioned that the Government want to consult with the Local Government Association on this first.

Published this morning were the explanatory notes on the Commons amendments to the Local Audit and Accountability Bill which include at page 13 a statement on “compatibility with the European Convention on Human Rights”.

I will quote from this section here (the quotes are in numbered bold paragraphs with my commentary below them), hopefully it allays some fears people had over what the secondary legislation is about and repeats the article 10 (freedom of expression) arguments I’ve been making to Wirral Council about filming for some time!

60. The amendments to the Bill which would allow residents attending meetings of the full council, its committees and sub-committees to act as citizen journalists potentially engage some rights under the European Convention on Human Rights (“the ECHR”).

This is just a statement of fact, written in the ever careful language of lawyers, in my opinion they don’t “potentially engage”, they do engage.

61. The provisions would enable the Secretary of State to make regulations which are either free-standing or amend the relevant provisions in Part 5A of and Schedule 12 to the Local Government Act 1972, the Public Bodies (Admission to Meetings) Act 1960 and the Greater London Authority Act 1999 and that mirror the following elements of the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”):

  • The use of websites for the publication of information such as agendas, minutes and connected reports;
  • The ability of the public to attend meetings to act as ‘citizen journalists’ (facilitating the reporting of meetings by individuals on social media); and
  • Recording the decisions taken by officers.

Basically parts of the laws mentioned could do with being repealed to make the situation on filming clearer for both local Councils and those doing the filming. Otherwise there’ll be (once the secondary legislation is passed) about six different bits of law stating slightly different things about the filming issue which would be a recipe for confusion and misunderstandings (especially as each bit of law can be interpreted in different ways). Two of the acts were written before the Human Rights Act 1998 c.42 came into effect. Had they been drafted after 1998 the clauses about filming would have had to be drafted in such a way to take into account article 10 rights to freedom of expression.

The first bullet point I think refers to the media and bloggers publishing information such as agendas, minutes and reports on their blogs rather than linking to the official version on the website of the organisation they’re reporting on. This is already covered in respect of Cabinet meetings in the 2012 regulations, which also grants qualified privilege to publishers in respect of publication of these documents.

The second bullet point is about widening the definition of media to include those writing and publishing online. The current definition in the legislation of media (apart from Cabinet meetings n the 2012 regulations which already covers new media) covers newspapers, media agencies (those who supply stories to newspapers) and those recording sound or video for news broadcasts (local radio and TV) as well as those classed as programme services under the Broadcasting Act 1990. Curiously that last definition is so broad it covers publishing video footage of Wirral Council meetings online (or any public meeting of a local Council).

62. These changes follow what is already provided for in the 2012 Regulations.

My reading of this is that the secondary legislation resulting from this section of the Local Audit and Accountability Bill (apart from the potential for amending provisions of earlier legislation) will extend the regulations outlined in the Local Authorities (Executive Arrangements) (Meetings and Access to Information) (England) Regulations 2012 (“the 2012 Regulations”) to all public meetings of local councils, as well as the other bodies specified in the Local Audit and Accountability Bill.

Examples of other bodies referred to in the Local Audit and Accountability Bill would be integrated transport authorities. Locally that would be Merseytravel (which may well be have changed completely and be absorbed into the Merseyside Combined Authority by the time the secondary legislation has effect) and the Merseyside Fire and Rescue Authority.

63. The Bill as amended would also provide that the Secretary of State has powers to ensure that the public can film, blog, or tweet at all meetings of a full council, its committees and sub-committees; meetings of an executive, its committees and sub-committees; meetings of parish and town councils and Greater London Assembly meetings. This is a new proposal which reflects the changes in technology enabling broader access to information and new methods of reporting and recording council meeting proceedings.

Personally I don’t have a mobile phone so I can’t blog or tweet live at a public meeting. If I remember correctly the guidance previously issued by the Rt Hon Eric Pickles MP on filming meetings relied on legislation that technically didn’t cover parish and town councils which caused some issues. I don’t know of any parish or town councils in the Wirral and as far as I know Greater London Assembly meetings are already filmed as I’m sure I’ve previously seen Boris Johnson facing questions as the Mayor of London on the BBC Parliament channel.

64. Articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the ECHR may be engaged in relation to the provisions regarding openness of council meetings. Neither of these rights is absolute and they include in their respective second paragraphs details regarding the basis on which the right may be limited.

65. Article 8 has potential to be engaged but it appears unlikely in these circumstances. The meetings being open to public attendance are unlikely to fall within the definition of “private and family life”. Lord Hope and Lord Nicholls in the case of Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 both made clear in their judgements that the first step to consider if the matter falls within the sphere of private and family life. The latter described the approach to take as follows: “the touchstone of private life is whether in respect of the disclosed facts that the person in question had a reasonable expectation of privacy”. The court in HRH Prince of Wales v Associates Newspapers Ltd [2006] EWCA 1776 highlighted that whilst there was a division over the conclusions in Campbell there was no division regarding the relevant approach in law. Given that the council meetings considered by the Bill would be held in public (unless there was a justifiable reason to exclude the public), it is difficult see a sustainable argument that attendees would have a reasonable expectation of privacy so as to engage Article 8.

Article 8 is a red herring really, as pointed out there can’t be an expectation of privacy at a public meeting open to anyone to attend where there could be over a hundred present (if it’s a particularly controversial planning application) who would hear what was said and see what was going on. From what I remember, even Wirral Council’s councillors have never claimed filming can’t happen on privacy grounds.

66. Whilst it is unlikely that the attendees’ Article 8 rights would be engaged, if a successful argument were to be made, paragraph 2 of Article 8 allows for the limitation of these rights. The Article 8 rights of those who are attending the meetings (cf. to those attending and reporting) can arguably be qualified on the basis that the limitation is:

a. in accordance with the law; as prescribed by the Bill and regulations made using the powers it contains.
b. is necessary in a democratic society. This is on the basis that wide public access to meetings and reporting on meetings increases accountability. The level of scrutiny which the public expect is influenced by the availability and ease of using different reporting methods, and this has increased since the advent of social media including blogging, tweeting etc and is further influenced by the ease of access to this technology. There is an expectation now that the public should have the ability to subject their representatives to closer and more direct scrutiny; an expectation that is shared both by members of the public and their representatives.
c. is for the protection of the rights and freedoms of others; namely the Article 10 rights of those reporting the meeting.

As pointed out above, article 8 is a qualified right and the rights of people to report public meetings has to be protected.

67. The provisions which would allow for regulations to be made on the prevention of the public from filming, reporting etc of council meetings may engage Article 10. However, it should be noted that it is envisaged that prevention of filming, reporting etc will largely be in the same circumstances in which the public would also be excluded from the meeting. As such the new provisions regarding prevention of filming, reporting etc would reflect the existing provisions on exclusion, including the common law right to exclude the public from meetings to suppress disorderly conduct. Insofar as there is a limitation on the Article 10 rights of potential attendees, this restriction can be justified on the basis that the prevention of filming, reporting etc and exclusion from meetings provisions are drafted in a manner to ensure those decisions are not arbitrary. For example the existing provisions on exclusion state the grounds on which a council may decide to hold a closed meeting, which include: where confidential or sensitive information is to be disclosed or discussed; or where the public are excluded under the common law right to suppress disorderly conduct. These reasons fall within the exceptions included within paragraph 2 of Article 10. Such reasons would be necessary in a democratic society if by not having the option to exclude public attendance would prevent the council from effectively carrying out its business. Furthermore, the exclusions would be prescribed by law as the justifications for preventing filming will be set out in the regulations and the justifications for exclusion from meetings are set out in primary legislation.

Firstly the issue of the press and public being excluded from a meeting, the suggestion that if the right to film covered the whole meeting meaning that recording equipment could be left behind and record the private part of the meeting is frankly a little ridiculous! However there are people that can stay and observe the private parts of meetings (such as other councillors and officers) that if the secondary legislation was poorly drafted would have a right to film or record these private sessions when the press and public were excluded.

I have no problem (and I don’t think anybody else would) with filming being prevented during parts of the meeting that the press and public are excluded from, however the phrase “largely be in the same circumstances” hints at other reasons to prevent filming which is worrying.

The common law right to suppress disorderly conduct is referred, yet it states “provisions are drafted in a manner to ensure those decisions are not arbitrary”. Last year at a public meeting of Wirral Council’s Sustainable Communities Overview and Scrutiny Committee, a Wirral councillor (Cllr Jerry Williams, Labour) (you can read the minutes for yourself here) went so far as to suggest that filming itself to him is regarded as disorderly conduct (rather embarrassingly six members of the Sustainable Communities Overview and Scrutiny Committee then went on to use a piece of legislation that only applies to Cabinet meetings as a rationale to prevent filming).

An opinion as to what or what isn’t disorderly conduct is (as shown in the previous paragraph) entirely arbitrary and I hope the secondary legislation states explicitly that silently filming a meeting can’t be seen as grounds for exclusion from the meeting under the disorderly conduct provisions already in the legislation.

So repeating somewhat what I said above, in my view the justification of preventing filming by excluding the press and public from the meeting is fine, the issue of preventing abuse of the disorderly conduct provision in legislation to prevent filming needs to be explicitly stated and I can’t see there being any other justifications for preventing filming.

68. Article 11, freedom of assembly and association, should also be considered. The right to freedom of assembly includes participation in public meetings. However, Article 11 is a qualified right which can be restricted. The basis of the restrictions include that is in the interests of national security or public safety, for the prevention of disorder or crime or for the protection of the rights and freedoms of others. As such the position in relation justifying qualification of Article 11 is much the same as it is for Article 10 freedom of expression.

The right of the public to be at public meetings is already in legislation and the fact that Article 11 specifically states “peaceful assembly” means that article 11 isn’t engaged if people engage in disorderly conduct. I presume this is referring to the public and press being excluded from private sessions of meetings.

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The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

The Klonowski Files (Part 1) Equality and Human Rights Commission letter dated 29th December 2010

                       

On Friday I asked at a meeting of the Improvement Board, Graham Burgess (Wirral Council’s Chief Executive) the following question:

The final report of Anna Klonowski Associates Limited was published as part of the Cabinet agenda of the 12th January 2012. Wirral Council also received from Anna Klonowski Associates sixteen appendices (listed below), which apart from appendix G (Standards for England decision notices) have not been published. If Wirral Council is now “open and transparent” when will the other fourteen appendices be published (except for appendix L)?

A Appendices as Referred to in the Report
B Equality and Human Rights Commission Letter Dated 29 December 2010
C First Improvement Plan
D Care Quality Commission Inspection Report
E Charging Policy for Supported Living Services
F Documents Relating to 27 Balls Road
G Standards for England Decision Notices Cllr Pat Williams, Cllr Moira McLaughlin, Cllr Denise Roberts and former Cllr Ann Bridson
H Documents Relating to Reimbursement Claims
I Emails Relating to Supported Living Contracts
J Documents Relating to Service Provider 2
K Documents Relating to Service Provider 3
L Medical Information Relating to Martin Morton (MEDICAL IN CONFIDENCE)
M Documents Relating to Service Provider 4
N Minutes of Adult Protection Strategy Meeting Relating to Service Provider 4
O Documents Relating to the Safeguarding Adults Unit
P Minutes of the DASS Monitoring & Development Sub Group Meeting Held on the 11 December 2008
Q Employment Dates for WMBC Employees

A brief explanation about some of the acronyms used above. DASS refers to Department of Adult Social Services and WMBC to Wirral Metropolitan Borough Council. Service Provider 2 was Assisted Living Services (ALS), Service Provider 3 was Salisbury Independent Living Services (SIL) and Service Provider 4 was Options for Living according to this key to the terms used in the Anna Klonowski Associates report.

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The answer given by Graham Burgess (unfortunately he didn’t give a separate answer for each appendix) and starts at 6:12 in the video above was, “Just a response to the first question which relates to a whole series of appendices to the AKA report.

Our view is that all those appendices actually contain very sensitive personal information and to release those appendices would be in breach of data protection and also the duty we have to individuals that gave us information in confidence or relating to their own personal, medical or financial circumstances. Therefore it’s our view that it would be inappropriate to release those documents as they contain a whole host of sensitive information.

Clearly these matters can be tested, if people wish to test our view, by FOIs and the Information Commissioner but so far our position has been and has not been challenged in respect of those appendices. As you can see from some of them anyway clearly showing they do contain very sensitive personal information.”

Joyce Redfearn, Chair of the Improvement Board said, “I think that was recognised within the question certainly in terms of one of the appendices.”

Cllr Jeff Green, Leader of the Conservative Group said, “Yeah, can I just check with the Chief Executive said ‘We decided’ who the we were?”

Graham Burgess, Chief Executive responded, “It’s err the Council. I’ve no doubt said the Council.”

John Brace said, “Sorry, as I’m entitled to a supplementary on that. In relation to P in that list which is the minutes of the DASS Monitoring & Development Sub Group Meeting. I know that there were councillors present at that one and that was used as a justification that councillors had signed off on the special charging policy. So if you released it with the other names blacked out, wouldn’t that then mean people could then have at least a bit of accountability as to who the people were who agreed to that?”

Graham Burgess responded, “Can I also say Chair, that with your agreement it would be the intention of the Council to print all these questions, to place all these questions on our website and all the answers to them as well so they can be unearthed by people who couldn’t make this meeting so they could see what was said and what we’re saying.

In respect of that errm, obviously this is a question we got at five o’clock last night which was reasonable and obviously your supplementary has just been asked now. So I’d need probably to go away and take advice on that point and we’ll give the answer both to you John personally and put the answer on the website for everybody to see. Certainly Joyce and the Improvement Board will take that into account when they write the final report.”

Joyce Redfearn said, “So thank you for the particular question, it was really helpful.”

Below is the first appendix I asked to be published, appendix B (Equality and Human Rights Commission Letter Dated 29 December 2010) supplied by Paul Cardin (not Wirral Council), who has further information on some of the background to the letter in a blog post headlined “The Saga of DLA Piper – can the truth finally be allowed to emerge? Er, not yet…”. You can click on the image of the letter for a larger image, but as search engines can’t spider images, the text of the letter is also included below it.

Letter to Angela Eagle MP from Mike Smith, Chair of the Disability Committee of the Equality and Human Rights Commission

Equality and
Human Rights
Commission

equalityhumanrights.com

29 December 2010

Angela Eagle MP
House of Commons
London
SW1A 0AA

Dear Ms Eagle
Mr Paul Cardin

In response to your letter of 9 November 2010, in which you outline Mr. Cardin’s concerns that the overcharging of disabled residents amounted to discrimination.

I do not agree with the conclusions drawn by the Council’s Director of Law namely that discrimination did not occur because the residents were not overcharged for reasons relating to disability.

Current discrimination law and supporting case law clearly establish that motive and intent are irrelevant to this issue. The facts are that disabled people were subject to unlawful levels of charging (whether or not the cause was maladministration).

It is therefore the opinion of the Commission that Mr. Cardin’s concerns should be included in the Inquiry, in order to identify whether there are other issues or systemic problems that need to be addressed.

Furthermore inclusion of Mr. Cardin’s concerns in the Inquiry will assist the Local Authority in communicating their commitment to fully investigating this matter.

Yours sincerely

Mike Smith
Chair of the Disability Committee

Equality and Human Rights Commission
3 More London Riverside
Tooley Street
London
SE1 2RG
Tel: 020 3117 0235
Fax: 020 7407 7557
info@equalityhumanrights.com

The Equality and Human Rights Commission was established by the Equality Act 2006 as the Commission for Equality and Human Rights

So going through the list of reasons Graham Burgess gave for not publishing appendices such as these.

1. Does it contain “very sensitive personal information”?

No, it doesn’t. It does contain Paul Cardin’s name and if Wirral Council wished to protect his privacy it could easily have been released the letter with his name blacked out. However I had Paul Cardin’s permission to republish the letter without any redactions.

2. Would it be a breach of the data protection legislation for Wirral Council to release and publish such a letter?

In my view no (apart from the point about whether Paul Cardin’s name should be included when published or not). Wirral Council have been criticised in the past for using the spurious reason of data protection legislation to try and stop filming of their meetings so I don’t think they’re as familiar with this legislation and case law on the subject as they claim to be. My own personal experience is that I’ve previously won a case (in 2012) in the Birkenhead County Court involving a breach of the Data Protection Act 1998 where one of the two defendants was a Wirral councillor. Sadly it seems at least one Wirral councillor has very little understanding of the data protection legislation.

3. Would it breach the duty Wirral Council has to individuals that gave them information in confidence?

No, this is a letter written to Angela Eagle MP. I very much doubt that Mike Smith was told by Anna Klonowski Associates Ltd that his letter would be kept confidential or that he was providing it on these terms to Anna Klonowski’s investigation on those terms.

4. Does it relate to personal, medical or financial circumstances?

No, it does relate to overcharging but not in detail.

This however brings us to a final question which seems to be the crux of the matter.

5. Would releasing or publishing a letter from the Chair of the Disability Committee of the Equality and Human Rights Commission that states that disabled people were subject to unlawful levels of charging which amounted to discrimination, which contradicts the legal opinion of Wirral Council’s former Director of Law be something that would be embarrassing to Wirral Council? The answer to that one is yes. As usual comments on this matter are appreciated.

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