Wirral Council solicitor explains why some saw secret report - and others didn't

Mr Norman emphasises the request from Sue Charteris when she sent the draft report for comments, quoting from her letter:

'I have included two numbered copies of the report which are not for circulation beyond the people who you will be obtaining comments from.'

Mr Norman clearly intends this as part of his explanation for why the Tories were prevented from seeing the draft report - but then admits senior council officer(s) he shared it with allowed others to see it - Mr Norman said in his email: "All persons provided with copies of the draft Report by me were made aware of the obligation of confidentiality attached to it. I have not checked with everybody listed in my previous email whether they have shared the draft Report or its recommendations with anyone. I am aware, however, that at least one officer has shared the draft Report with those very senior colleagues in their Department from whom they required advice or assistance, but always subject to the obligation of confidentiality. "

Clearly the original list of people who had access to the report was larger than first indicated - and even that original list of people was incomplete as the report had also been sent to the Council's counsel - at extra cost, of course.

As an addendum to this, the Freedom of Information requests for the draft report have been submitted from a variety of sources - a number publicly through whatdotheyknow.com. It will be interesting to see if this draft report, which I am fairly reliably informed still resided (at least until a few days ago) in the desk draw of at least one senior council officer, will ever see the light of day. I shall be following up my FOI request asking for details of the comments sent by Wirral Council in response to the report.

Anyway, here's the email from Bill Norman...

From: Norman, Bill D.
Sent: 22 October 2009 20:07
To: Green, Jeff E. (Councillor)
Cc: Councillors; Chief Officers; Lester, Jim L.; Degg, Emma J.; Lyon, Rosemary A.; MacLaverty, Paula K. ; Pennington, Abigail; Watts, Margaret
Subject: RE: Extraordinary Council - 12 October 2009

Dear Councillor Green

Thank you for your email sent on 15 October 2009. I apologise for the length of time it has taken me to respond.

Before I come to the specific points you have raised in you email, I think it would be useful to share with you my view as to the role of Members and officers in a local authority and to restate the advice previously given as to the exceptional nature of the obligation of confidentiality attached to the draft Report by Sue Charteris. This area of law is clear but complex and this advice needs to be considered as a whole, rather than particular sentences or phrases selected in isolation. For ease of reference, I will use numbered paragraphs for the remainder of this email.

1. All officers are employed by the Council. All officers are accountable to the Chief Executive as the Head of Paid Service. It is the duty of all officers to serve and support all 66 Councillors. It is also the duty of all officers to use their best endeavours to implement Members' duly made decisions. This includes decisions taken by full Council, decision-making committees (such as the Planning Committee), or by the Executive (the Cabinet, or individual Portfolio Holders exercising delegated authority). In implementing any such decisions, officers are obliged to use their best endeavours to achieve the outcomes duly approved by Members.

2. The decisions relating to the Strategic Asset Review ('SAR') (including the decision to close 11 libraries) were controversial and consistently opposed by your Group (and a number of other Councillors). However, the SAR (including the proposal to close 11 libraries) was approved at Council (albeit on a majority vote). At that point it became the duty of all Council officers to use their best endeavours to take forward and implement the SAR.

3. The decision to close 11 libraries was referred to a Public Inquiry by the Secretary of State. Throughout the Library Inquiry process, the proper role of officers was to use their best endeavours to defend the Council's decision to close 11 libraries, including preparing a response to Sue Charteris on her draft Report.

4. It is important for me to emphasise that this obligation upon officers to defend the Council's decision to close libraries does not mean that officers are to behave in a manner that might be described as partial (in the sense of improperly preferring the views of one group of Members to those of the another group). The obligation on officers' is to use their best endeavours to implement Members' duly made decisions. The key question is: 'What was the decision of the majority of Members at Council?' Not: 'What party or parties do they represent?'

5. Another important role of officers in local government is to provide advice to Members. Such advice may be provided to Members collectively, or in political groups, or to individual Councillors. Such advice must be full and frank and, where provided to individual political groups or to individual Councillors, must not then be divulged to other political groups or other Councillors, without agreement. In this role officers have provided advice on the Library Inquiry Procedure Rules and on the Council's Constitution. This advice has been (and remains) available to all 66 Members and all political groups whenever requested.

6. In local government law, the phrase 'confidential information' has a narrow and very specific legal meaning. This is contained in Section 100A of the Local Government Act 1972. This provides that 'confidential information' includes 'information furnished to the Council by a Government department upon terms (however expressed) which forbid the disclosure of the information to the public'. Sue Charteris was appointed by the Secretary of State to conduct the Libraries Inquiry and so legally her requirements as to confidentiality are the requirements of the Secretary of State (i.e. a Government department). As such, they are legally enforceable. It is therefore important to consider the exact wording used by Sue Charteris in her letter to me of 27 July (copied to all Members with my email of 13 October).

7. In the first paragraph of her letter she states that:

'I have included two numbered copies of the report which are not for circulation beyond the people who you will be obtaining comments from.'

In the second paragraph of her letter, Sue Charteris asks me to:

'... assure absolute confidentiality of the report's findings and conclusions at this stage.'

8. As I explained in my previous email, because the draft Report is 'confidential information' in the narrow legal sense described above, I am legally precluded from sharing the document with anyone in breach of the terms of the 27 July letter from Sue Charteris. I am thus legally prohibited from passing the draft Report to anyone unless I was seeking comments from them to assist me in responding to Sue Charteris. Section 100A of the Local Government Act 1972 makes it expressly clear that nothing in the 1972 Act either requires me (or authorises me) to disclose the draft report in breach of the obligation of confidence. In this regard, as I said in my earlier email, 'confidential information' is unlike 'exempt information' to which Members may be entitled to be given copies.

9. In my previous email I listed the Members and officers to whom I circulated the draft Report. I also explained that my response to Sue Charteris was a combination of factual corrections, clarifications and legal arguments: as such, it was wider ranging than mere 'fact checking'. The officers who were provided with a copy of the draft Report were those colleagues most involved in the preparation of the Council's case for the Public Inquiry, plus the Chief Executive and Deputy Chief Executive. Emma Degg's involvement was as a second tier officer and she made a major contribution to the factual corrections and clarifications contained in my response. Those Members who were provided with copies of the draft Report received them in their capacity as senior Cabinet Members and, in the case of Councillor Moon, as Portfolio Holder for Culture, Tourism and Leisure. Those Members were passed a copy to enable them to comment on specific references to Cabinet decisions or actions contained in the draft Report and to ensure that my overall response was consistent with their reasons for deciding to close 11 libraries.

10. The decision as to who received a copy of the draft Report was mine and, as I said at Council on 12 October, I accept full responsibility for it. In the end, it was a judgement-call, made in good faith. As I have said previously, the decision was based exclusively on my belief as to who I needed input from to enable me to respond to Sue Charteris; it was not influenced by an evaluation of any individual's ability to respect confidences.

11. I must add at this point that in my previous email I inadvertently omitted one name from the list of persons to whom I copied the draft Report. The list was accurate and complete regards Members and officers. However, the draft Report was also sent by me to Richard Clayton QC for clarification of some of the legal matters he had raised during the Public Inquiry. (He was not asked to advise on the issues of confidentiality or disclosure of the draft Report.) I can only apologise to you and all other recipients of my previous email for my omission of Richard's name.

12. I have also considered the common law prima facie right of Members to inspect documents held by the Council. However, this is limited to where a Councillor has a 'need to know'. The prima facie right arises from the duty on Members to keep themselves informed of Council business relating to their role as a Councillor. As the draft Report (which, of course, was neither produced nor owned by the Council) was not the subject of any Council decision, there was no need for all Councillors to see the draft Report and hence no right to see the draft Report on a 'need to know' basis.

13. In your email you asked me for guidance regarding officers who have told you direct untruths. Under the Officers' Code of Conduct, employees are required to perform their duties 'with honesty, integrity, impartiality and objectivity'. Telling a direct untruth clearly conflicts with the requirement for honesty. Equally, however, all of us who have received copies of the draft Report have been conscious of the exceptional obligation of confidentiality attached to it. I do not say this to justify the telling of an untruth: it does not.

14. Save for the matters raised with Richard Clayton QC (see above), no other external legal or professional services were used in developing the Council's response to the draft report. The total professional fees of Richard Clayton QC in relation to the Library Inquiry (including advising on the response to the draft Report) were £31,161.88 (plus VAT, which the Council recovers). Of this, £525 (plus VAT) related to advice in connection with the draft Report. No advice has been sought from Mr Clayton since 31 July 2009. I know that you have previously criticised my decision to instruct Leading Counsel in this matter. However, as was made clear by the Council resolution on 12 October 2009, the decision not to close the 11 libraries has a £830,000 in year consequence for the authority, plus additional buildings maintenance implications. In this context and given the absence of any previous Public Inquiry under the Libraries and Museums Act 1964 (the 1991 Derbyshire Inquiry was a voluntary, non-statutory affair), I believe it was reasonable to instruct an experienced QC to help defend Council's decision to close 11 libraries.

15. The Council received from Sue Charteris a reply to my comments upon her draft Report. My comments and the reply from Sue Charteris are covered by the same terms as to confidentiality as the draft Report. The Council has not been provided with a copy of the final Report by Sue Charteris: that has, however, been sent to the Secretary of State. As indicated in the letter of 27 July from Sue Charteris, DCMS and the Council have been in contact to discuss arrangements for publication of the Secretary of State's Decision. Whilst I was told by DCMS, on 15 September, that they could not give me a timetable for publication, subsequent communications with DCMS around the end of September suggested that publication was probably imminent.

16. All persons provided with copies of the draft Report by me were made aware of the obligation of confidentiality attached to it. I have not checked with everybody listed in my previous email whether they have shared the draft Report or its recommendations with anyone. I am aware, however, that at least one officer has shared the draft Report with those very senior colleagues in their Department from whom they required advice or assistance, but always subject to the obligation of confidentiality. Breach of the obligation by an officer would potentially be a disciplinary matter. Breach of the obligation by a Member would potentially be a breach of the Members' Code of Conduct.

I apologise for writing to you at such length. However, the issues you have raised are important but complex and required a considered answer. If any of what I have said is unclear, please let me know and I will do my very best to explain the matter better.

Regards

Bill

Bill Norman

Director of Law, HR and Asset Management

Wirral Council

See previous blog entries on Wirral's ongoing libraries row at

bit.ly/sRDk
bit.ly/2GHItB
bit.ly/4ylH5i