The latest in the ongoing exchange between Tory leader Jeff Green and council legal director Bill Norman

The email from Mr Norman shows the council was expecting the publication of the report on October 1 - just before they announced they had abandoned the library closures.
It also sheds more light on the so-called midnight meeting involving certain cabinet members - with officers available to give advice (presumably waiting outside the meeting room?) in which the options open to the council were discussed.
Cllr Simon Holbrook admitted they had discussed all options when I asked him if the rumour they considered resigning was true - although when I said I would have liked to be a fly on the wall at that meeting he inisisted it was long and even implied it had been rather dull.
However, the Deputy council leader did acknowledge that senior cabinet members "considered our positions at some length" during that crisis meeting a day before the expected publication of the critical Sue Charteris report.
The latest from the DCMS (as of Monday evening) is that there is still no date for publication of the libraries report, although it is expected to be published either ahead of, or with a wider Government report on the national strategy - expected before the end of the year.
For those who haven't seen it eslewhere, this is the latest from Mr Norman - although do not expect it to be the last, as I understand Cllr Green has more questions he is seeking answers to...

From: Norman, Bill D.
Sent: 06 November 2009 16:11
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: Extraordinary Council - 12 October 2009

Dear Councillor Green

I refer to your email sent on Monday 26 October (and first seen by me on my return from leave on Monday 2 November) in which you asked me to respond to a number of detailed questions. To ensure completeness and clarity in my responses, I will set out each of my answers beneath a copy of your original question.

· Can you tell me exactly what the Council knew and when it knew it regarding the imminent publication of the SoS Decision and who communicated this information to whom and by what means?

The Council's Press Office was in periodic contact with their counterparts at the DCMS Press Office (at the suggestion of Sue Charteris) in order to prepare appropriately for the publication of the Secretary of State's decision. In early September, the DCMS Press office indicated that publication was likely by the end of the month. On Tuesday 29 September the Council's Press Office was informed in a phone call from the DCMS Press Office that they expected the Minister (which I believe was a reference to Margaret Hodge) to sign off the matter that day; and that it was 70 per cent likely that an announcement would be made on Thursday 1 October (which I believe meant an announcement by the Secretary of State, Ben Bradshaw, as the legal decision-maker).

· Given the length of time it has taken you to reply to my questions can you let me know why you did not check with everyone listed in your previous email whether they had shared the report with anyone? Can you also tell me who you have checked with and whether you are going to check with those you have not yet spoken to?

I spoke to all the officers listed on my original email. So far as this question relates to Members, I suggest that you raise the issue direct with those Councillors.

· Can you tell me how you became aware that the one officer mentioned in your reply had broken your instruction by circulating the report to their staff, who that was and whether the people you shared the report for fact checking with had your implicit or explicit authority to circulate it more widely, if not what action will be taken?

It was Ian Coleman (Director of Finance) who shared his copy of the draft Report with three members of his Management Team concerned and it was Ian who informed me of his action. Ian did not make any additional copies of the draft Report, but shared his copy with David Smith (Deputy Director), Tom Sault (Head of Financial Services) and Malcolm Flanagan (Head of Benefits, Revenues & Customer Services). I am satisfied that it was necessary for those Officers to see Ian's copy of the draft Report to ensure that an accurate response was provided by the Council to Sue Charteris. I consider Ian Coleman to have acted in a manner that was both appropriate and reasonable and confirm that he broke no instruction of mine.

· Bearing in mind that you still contend that Lesley and I are not allowed to see the report, will you at last give me a complete, honest and final accounting of who has been deemed suitable, by you, the people you gave a copy of the report to or the Labour/Liberal Democrat Administration, to see Sue Charteris's, draft report for fact checking or other purposes?

I have provided you with the names of all Members and Officers (plus Richard Clayton QC) to whom I provided copies of the draft Report. I have now supplied the names of the three very senior managers to whom Ian Coleman provided copies. All these people were made aware of the obligation of confidentiality attaching to the draft Report.

· Noting that if it had not been for the email from Sue Charteris (In my possession which states 'My report has now gone to Bill Norman and to DCMS officials for them to fact check and I have given both parties till'......) Lesley, myself or the residents of Wirral would not have known the Council had received a draft copy for 'fact checking' let alone who was going to check the facts, why did you and the Administration choose to act in the exclusive way you describe?

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. 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.

· In your response you state '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'. And follow it with 'I do not say this to justify the telling of an untruth: it does not' can you explain why, if you were not seeking to justify officers telling me lies, you chose to include such a comment?

I made clear in my response to you that I do not believe that the telling of an untruth is justified. However, I do believe that the significant and unusual circumstances surrounding the confidentiality of the draft Report were contributory factors to the misjudgements that were made. The officers concerned have been dealt with in an appropriate manner to ensure that this does not happen again.

· The only seniority I can see Gill has is her capacity as Deputy Leader of the Liberal Democrat Group, therefore can you explain to me why I should not characterise your decision as a political one (i.e. the likely political/public impact the report may have on the coalition if the initial conclusions and recommendations were seen by other Council members or the electorate) as opposed to 'seeking the views' on the facts from 'senior' members of the Cabinet?

The Deputy Leader of the Liberal Democrat Group is a senior member of the Cabinet and saw the draft Report in that capacity. As stated in my previous email, five Cabinet Members were passed a copy of the draft Report 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.

· (Your comment about Emma's role) is interesting in terms of process but not in terms of the expertise and competence she has that you required. Given you have not sought to address my specific question, I am only left with the conclusion that her role was associated with her job i.e. PR and media management, can you confirm this?

Emma Degg is Head of Wirral Council's Tourism and Marketing Team, which takes the lead in communications functions across the authority. In this capacity her team helped organise and manage the SAR consultation events that took place across Wirral. In addition, Emma's team helped collate feedback from the inquiry and the public meetings, including comments cards, petitions and letters. These (plus the full transcripts of the events and DVD recordings of the inquiry) were held by her office. Emma was therefore best placed thoroughly to check the facts around the logistics of the consultation itself, the feedback arising from the consultation and the consultation process overall. In the absence at that time of a Head of Corporate Policy, Emma also provided significant input on the Council's strategic policy background.

Other Issues arising out of your response:

· In Sue Charteris's letter of Monday 27th July, circulated by you, she says she has given you 'two numbered copies of the report'. How many copies of this report have been made or emailed around the Council? Where are the two numbered copies now? Do you consider that you have broken the 'exceptional nature of the obligation of confidentiality' or is it your view this would only have occurred if you had asked Lesley or I to check the facts contained in the report?

Thirteen paper copies of the draft Report were made to enable the Council's response to be completed within the tight deadline we had been given. A numbered list was produced and copies were signed for by the individuals concerned. I retain the two original copies, one of which was unbound for copying. I also sent an electronic copy by email to Richard Clayton, because sending a hard copy was impractical (as both of us were about to go on leave).

In your response you state that Councillors other than members of the Conservative Group have consistently opposed the SAR. Is this completely accurate and true?

Some Councillors who are not members of the Conservative group voted against the SAR at Council meetings.

· You emphasise Council Officers duty to use their best endeavours to defend the Council's decision. Do you believe this overrides officers obligations to perform their duties with honesty, integrity, impartiality and objectivity? Where does this leave Council whistle blowers?

Absolutely not. Officers' obligations to perform our duties with honesty, integrity, impartiality and objectivity should never be compromised when using our best endeavours to defend Council decisions. These same obligations apply particularly acutely in relation to responding to whistle blowers.

· Para 7, If you, or anyone you have given one of the two numbered copies of the report to, has made copies or shown the contents to anyone else do you consider that the 'exceptional nature of the obligation of confidentiality' has been broken and what action will be taken?

For the reasons stated above, I do not consider that the Director of Finance has breached the obligation of confidentiality.

· Para 9 can you inform me if any of the factual, corrections, clarifications and legal arguments were accepted by Sue Charteris? And whether you have been informed if the Council's response, which you tell me Emma made such a major contribution to, led to Sue Charteris informing you of any changes to her conclusions or recommendations?

I requested a copy of the final Report to enable the Council to ascertain exactly which of our factual corrections, clarifications and legal arguments had been accepted. My request was refused and I confirm that the Council has not received a copy of the final Report. However, I did receive from Sue Charteris a response to the Council's representations on her draft Report. This accepted some points but rejected others. It is not possible at this time to detail these as that would entail disclosing content of the draft Report that I am legally not permitted to do. However, I confirm that, in my opinion, no major changes were made to the draft Report.

· Para 12 Can you confirm to me in writing that in your judgement the content of the draft report and any associated communication about the conclusions and recommendations have no impact or bearing on the way Council needs to approach policy formation? And played no part in the Council's subsequent decision not to close the 11 libraries?

The Secretary of State's final Decision on the Libraries Inquiry will need to be considered by Members following its publication in order to ascertain if there are any lessons that can be learned regarding how the Council approaches policy formulation in the future. The decision not to close libraries was a matter determined by the Cabinet and I suggest the second part of your question is directed to the Cabinet.

· Para 15 You have retrospectively applied an 'exceptional obligation of confidentiality' to me that you have not previously told me I had. For as you know I have been told of Sue Charteris's broad response to the Council's fact checking exercise and whether this had led to any changes to the recommendations contained in her report. As this information was shared with me in an open discussion is this a proper use of the obligation of confidentiality and has whoever told me this information breached any code?

As I indicated above, in my opinion, no major changes were made to the final Report as a result of the Council receiving and commenting upon the draft Report. I do not consider that providing that information in itself constitutes any breach of confidence.

· Para 15 can you tell me when (date and time) and who was told that publication of the Secretary of State's Decision was imminent? Whether the midnight meeting held in the Town Hall related to the imminence of publication and which Officers attended? Can you also tell me, given a Labour/Liberal Democrat press release was issued the following day, what role Emma Degg (the person responsible for the Councils PR/media handling strategy) was expected to perform at the midnight meeting?

I have responded to your question regarding to the timing and communication of the Secretary of State's decision above (point one you raise). In addition to me, the following senior Officers were requested to be available to provide professional advice:

Jim Wilkie Deputy Chief Executive
Ian Coleman Director of Finance
Alan Stennard Director of Regeneration
Emma Degg Head of Tourism and Marketing

These Officers were not present during the discussions between Cabinet Members and were informed of the Cabinet Members' agreed approach at the end of their private meeting. Emma Degg took no part in the drafting of the press release that was issued the following day by the Leader and the Deputy Leader.

· Para 16 Why have you not checked with everyone you gave a copy of the report to whether they have shared the draft report or its recommendations with anyone?

I have checked with all Officers to whom I passed a copy of the draft Report and, as stated previously, only one officer has shared the draft Report with those senior colleagues in their Department from whom they required advice or assistance, but always subject to the obligation of confidentiality. So far as this question relates to Members, I suggest that you to raise the issue direct with your fellow Councillors.

Given the content of your reply and the issues/questions above, I am left with the conclusion that you chose not to involve Lesley or I because you and those Councillors and officers involved in the 'fact checking' exercise were only looking for arguments that would defend the Administration's decision rather than an objective, impartial and honest examination of the facts in order to respond to the Chairman of a Public Enquiry, conducted on behalf of the Secretary of State. I have to say that if this is the case I would find it totally unacceptable and I am sure that those members of the Wirral public who had put so much faith in the honesty and integrity of the process will, in my opinion be rightly outraged.

If members of the Labour/Liberal Democrat Administration and Council Officers have dealt with the fact checking process and the two Reports sent to you by the Chairman of an Enquiry, who had generated so much good will and trust, in such a short period of time, with anything less than total, honesty, impartiality and integrity it will be nothing short of a scandal. Please tell me if you disagree?

I recognise that the decision to close 11 libraries was highly controversial and opposed by a large number of local people, as well as by your Group. However, that level of controversy or opposition does not detract from the obligation on all officers to use 100% of their efforts to defend through the Public Inquiry process the Council's duly taken library closure decision. In so doing all Officers involved in responding to the draft Report must act with honesty, impartiality and integrity. I think I speak for all my colleagues when I say that I believe that all officers have tried to act properly and fairly in very difficult circumstances.

Finally, I think it is important to state once more that the Final Report by Sue Charteris will be published. As I pointed out in my 13 October email, under the Public Libraries (Inquiry Procedure) Rules 1992, the Final Report by Sue Charteris will either be published with the Secretary of State's Decision letter, or will be available on request by any person who appeared at the Inquiry and asked to be notified of the Decision (which will include you and those other Councillors who spoke at the Inquiry, as well as the many members of the public who gave evidence). Publication of the Final Report is thus merely a matter of time: the question is 'When?' not 'If?' it will be made public. Conversely, until the Secretary of State's Decision is published, we are still only part way through an as yet incomplete legal process: a process that is subject to those specific and legally enforceable rules of confidentiality that I have previously explained at some length.

If any of what I have said above is unclear, I would be happy to meet with you to discuss the matter further.

Regards

Bill

Bill Norman
Director of Law, HR and Asset Management
Wirral Council