‘Dispensations’? Take My Advice . . .

‘Dispensations’? Take My Advice . . .

• an “In My View” article by NIGEL WARD, excavating the truth underlying the No Confidence ‘Dispensations’.
  

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Regular readers will need no reminder about the extraordinary matter of the so-called ‘Dispensations’ provided by the SBC Director of Legal & Democratic Services and Monitoring Officer Mrs Lisa DIXON, to Leader Councillor Derek BASTIMAN [Con.], his seven Cabinet Portfolio Holders and his spouse, Councillor Mrs Lynne BASTIMAN [Con.], allowing all nine to take part in the long-delayed Motion of No Confidence in which each of them held personal and prejudicial and pecuniary interests.

Mrs DIXON informed us, in Open Council, that she had sought external legal advice from specialist local government law solicitors Bevan Brittan LLP and that, on the strength of this advice, she had determined that it was lawful to grant the special ‘Dispensations’.

Transcript

“In relation to the request for the Dispensation, why the Dispensation was granted, as I think the Leader referred to earlier, we did take detailed legal advice on this from external legal advisors who are experts in this field – they’re called Bevan Brittan. And they advised that the Dispensations should be granted on the basis of maintaining the political proportionality of the meeting. And this advice was also confirmed in consultations with the Council’s Independent Persons who we consult with in order to take decisions on this basis and it is in accordance with the Council’s Constitution. Thank you.”

Readers of my 28th July 2017 article entitled “SBC Legal Attempts Enquirer Smear” may also recall that I submitted a Freedom of Information request for sight of the alleged legal advice. Naturally, I expected that the Council would hide behind one or another of the exemption clauses of the Act to evade disclosure of Bevan Brittan’s legal advice, which is exactly what happened.

However, the Act requires authorities to confirm whether or not requested information is actually held by the authority. SBC’s response to my FOIA request failed at this first hurdle; no confirmation or denial that the Council held the information I had requested was forthcoming. Evasive? Or incompetent? [Note to self: no more rhetorical questions. What’s the point?]. I could not possibly comment.

There are at least two possible explanations for this failure.

Either (i) the Officer in charge of handling FOIA requests does not understand the requirements of the Act, or (ii) the omission was calculated and deliberate, perhaps to avoid conceding that there never was any external legal advice from Bevan Brittan LLP and, therefore, that Mrs DIXON had misled the Council, the press and the public.

In fact, this latter explanation aroused the suspicions of many, which was the reason I Iodged my FOIA request in the first place. I did not (and still do not) believe that a firm of solicitors of the exalted reputation of Bevan Brittan LLP could conceivably have been so casual as to have advised Mrs DIXON that she could lawfully disregard the obvious personal and prejudicial and pecuniary interests held by the nine appellants and thus allow them to vote for themselves. It struck me, and many observers, as perverse.

Remember that the vote on the Motion of No Confidence tallied 25 votes AGAINST and 19 votes FOR the Motion of No Confidence in the Leader and his Cabinet.

Clearly, without the nine ‘Dispensations’, the Motion must therefore have been carried by 19 votes FOR and only 16 votes AGAINST.

Big difference. Crucial difference. A ‘No Confidence’ difference.

And remember, too, that Enquirer editor TIM THORNE wrote to Mrs DIXON to point out that Standing Orders were never re-instated following the vote, thus rendering the vote technically invalid. No response. It is exactly as if there is no will to do things according to the book – not if it impinges on the intentions of the inner circle. It is noteworthy, too, that the Council takes technical accuracy down to the letter when it comes to the enforcement of parking ‘fines’ or overdue Council Tax payments; when it comes to Constitutional governance matters, technical accuracy is manifested more in the breach than in the observance.

So with so much at stake, and so much contention and publicity surrounding the No Confidence vote, any competent and diligent Monitoring Officer would surely have taken great care to ensure that the request for external legal advice from Bevan Brittan LLP would have included a carefully detailed brief describing the precise circumstances, the nature of the personal and prejudicial and pecuniary interests, and the extraordinary need for openness and transparency (especially, given the widespread public suspicion that skullduggery was on the cards) – without which, it would have been highly imprudent for Bevan Brittan to commit themselves to providing ad hoc advice endorsing the appropriateness or legality of the  ‘Dispensations’. They have a reputation to lose.

In short, there had to be a paper trail authenticating the Monitoring Officer’s decision – though I knew SBC would refuse my FOIA request by withholding the paperwork (if any) under one of the exemption clauses of the Act. Allow me to quote from that 28th July 2017 article:

Interestingly, I was not the only person to lodge a Freedom of Information request regarding the Bevan Brittan LLP external legal advice. Another member of the public lodged a very similar request:

• “I would like to know what was in the legal opinion provided by Bevan Brittan LLP to Monitoring Officer Mrs Lisa Dixon that was the basis for allowing voting dispensations.”

This request, though less specific, is substantively the same as my own request of 29th June 2016, which read:

The Council did not even confirm for me, as required by law, whether or not it held the requested information. My request was refused on grounds of me being “vexatious”. My lawful Appeal for Internal Review was subsequently denied. They dare not say one word.

However, the other member of the public who submitted the FOIA request quoted further of this page (“I would like to know what was in the legal opinion provided by Bevan Brittan LLP to Monitoring Officer Mrs Lisa Dixon that was the basis for allowing voting dispensations”) received a very different response:

At least the FOI Officer remembered to declare whether or not the Council held the information.

• “This advice was not recorded and therefore the council does not hold the requested information”

Keep this in mind.

Now consider carefully the passage underlined in red:

• “the advice was given during a telephone conversation”.

We may conclude from these statements that Mrs DIXON made no contemporaneous recording or notes of her conversation, or the salient elements of Bevan Brittan’s legal advice – which she described in her Council peroration as “detailed”.

On sight of this astonishing admission, I called three different solicitors of my close acquaintance. I asked each of them: would they ever, in a professional capacity, provide legal advice on any issue of exceptional public interest informally, down the telephone, to a Monitoring Officer statutorily responsible for the moral rectitude and the legality of a Council’s actions on a highly sensitive issue? Would that not be unprofessional, even slipshod (to put it mildly)?

All three indicated that although occasionally, in matters of pressing time-sensitivity, advice is often sought (and provided) over the telephone to private clients, public authorities would invariably, as a matter of strict procedure, be at pains to establish the necessary evidential paper trail, in the interests of transparency and, more importantly, accountability – i.e. to cover their own asses.

For a Monitoring Officer to rely on formal legal advice provided merely orally, without written application or written response, without an audio recording or even contemporaneous notes, without the opinion of counsel, can be indicative only of professional sloppiness of the highest order, amounting, in my view, to gross incompetence. Without a detailed record of the so-called ‘advice’, it might just as well not exist. Mrs DIXON might just as well have said, “Do as you please”. Which is exactly what happened (and is exactly as I predicted in my article of 23rd June 2017).

Even then, no responsible and respected specialist local government solicitors would ever contemplate allowing their professional legal opinion to be represented in Council (and to the press and public) under their name on the basis of an unrecorded, unminuted casual oral application, over the telephone.

We asked Bevan Brittan LLP to confirm that they provided oral legal advice to SBC regarding the ‘Dispensations’.

Bevan Brittan LLP have ignored our email. The expression “professionally embarraassed” comes to mind

What is more, it does not fall within the remit – or the expertise – of the Council’s Independent Persons to provide legal advice. The Constitution has nothing to say on the subject of granting ‘Dispensations’ to members to vote on confidence issues in which they are themselves named parties.

Every element of Mrs DIXON’s statement was bullshit.

But we do have an Overview & Scrutiny Board. In my view, it should be insisting that the vote is taken again – fairly.

And in my view, Mrs DIXON should wash her mouth out.