SBC Press Censorship: more incredible revelations

Scarborough Borough Council Press Censorship:  more incredible revelations

• Tim Hicks reports on the extraordinary disarray within Scarborough Borough Council, its Cabinet, and the Legal & Support Services department of Ms Lisa Dixon . . .

What the Council’s letter actually said

In her letter dated the 28^th of March 2013 to the Real Whitby Internet Service Provider (reproduced here: page 1, page 2), Ms Lisa Dixon started by stating “I am a solicitor and the Head of Legal and Democratic Services at Scarborough Council”.

She then went on to demand that the ISP “terminate the website hosting service” (i.e. take the Real Whitby site down, thereby closing Real Whitby) which is SBC’s preferred action, or alternatively (SBC’s second choice)  that every article containing unspecified defamatory material is removed.

The website currently has some 1,300 published articles and some 6,300 comments which are read by a monthly readership of around 22,000 unique individual people. Many of the articles by various contributors to the site relate in some way to SBC and include the Council’s own press releases.

Because she does not specify which articles she alleges are defamatory, this would essentially have forced the ISP to remove every article on Scarborough Borough Council.  Other than shutting the site down there is no way to guarantee every mention of the council is removed, so the net effect of her letter will be to close the site or prevent it from reporting anything to do with SBC

The Whitby Town Council Debate

Following the attempt by SBC to close down this website, Real Whitby readers will no doubt be aware that on Tuesday the 9^th of April, Whitby Town Council debated and carried the following motion:

“This Council deplores the use of Scarborough Borough Council legal and Support Services in order to:

 – Restrict the right of individual electors and residents to freedom of speech.

 – Restrict the right of individual electors and residents to publish both opinion and comment concerning the business of SBC”

Real Whitby is grateful to the Whitby Town Council for their support and their determination to defend the right of freedom of speech.

Whitby Councillors are able to gauge public feeling and this must certainly reflect public opinion in Whitby about restrictions on freedom of speech by SBC, and – judging from our increased readership and the comments  – further a-field.

So how did Scarborough Borough Council –an organisation that purports to be committed to open government and democracy- manage to put itself in this humiliating and untenable position?

The Council press release

Prior to the Whitby Town Council debate, SBC issued the following official statement to the Whitby Town Councillors:

 STATEMENT

Real Whitby

“The notion that Scarborough Borough Council is attempting to suppress free speech is utterly untrue and deeply offensive.

The Real Whitby news blog and the “investigative journalists” who contribute to the website, have merely been asked to desist from publishing statements which are inaccurate, misleading and defamatory.

Scarborough Borough Council does not hide or shy away from criticism or seek in any way to silence those who believe we have got it wrong.

However, journalists – including those who contribute to news blogs – have an obligation to ensure the material they publish is factually correct, fair and balanced.

It is grossly irresponsible for journalists writing on a news platform to allege or infer illegal behaviour, corruption and misconduct or attack a person’s professional integrity without robust evidence of wrongdoing that would stand up to further scrutiny.

Furthermore, those individuals who have sought to gain credibility for their articles by describing themselves as “investigative journalists” should work within the same parameters as journalists working for the traditional media and ensure any article is factually accurate, as well as being fair, balanced and even-handed; and not stoop to the level of supposition dressed up as fact, innuendo and inference.

In our view, some of Real Whitby’s regular contributors have consistently failed to take those entirely reasonable steps and have fallen some way short of the standards expected in the journalism profession.

Scarborough Borough Council is satisfied that a significant proportion of articles published on the Real Whitby news blog do amount to actionable breaches of civil law and in some cases could constitute criminal activity and we believe we are entirely justified in pointing this out and seeking further legal redress if this standard of journalism continues.”

– END –

Given the content of Ms Dixon’s letter, it is obviously a complete falsehood to suggest that “The Real Whitby news blog and the “investigative journalists” who contribute to the website, have merely been asked to desist from publishing statements which are inaccurate, misleading and defamatory”, because SBC asked for the Real Whitby website to be “terminated”.

It is blatantly clear that Scarborough Borough Council’s intention is nothing other than to cause the closure of the site, meaning the closure of Real Whitby.  This is completely different to merely asking Real Whitby to stop publishing any future statements that are alleged to be misleading, as claimed in the Council statement.

It is very clear that the statement is based on falsehood and was issued to Whitby Town Councillors to deceive them.  It was subsequently issued to the Whitby Gazette for publication, presumably to deceive public opinion:

I have asked SBC to withdraw the press release on the grounds that it is obviously misleading.

SBC has refused to do so.

By writing to Tim Thorne, Nigel Ward, Glenn Kilpatrick and myself threatening us with legal proceedings for unspecified statements, SBC has very cleverly put us in the position of being faced with legal action should we publish anything any Councillor does not like.  In short, SBC was effectively trying to impose a blanket ban on any comment by Real Whitby on Scarborough Borough Council, on the basis of allegations of crime and falsehood that SBC has failed to substantiate in any way, although it has been given time to do so.

Further, having threatened future legal action to the owner and contributors if they published anything the Council deemed to be defamatory in the future, there was no need to then initiate legal action by asking for the website to be taken down.

The conclusion is inescapable that the allegations of defamatory remarks were a pretext to justify writing to the ISP to obtain the termination of Real Whitby, which is clearly the Council’s intention.

This is obviously press censorship and the denial of free speech, as the Whitby Town Council motion confirms. 

This was very clear to Whitby Town Council and that is surely why they voted to publicly censure Scarborough Borough Council. 

Conflicts of interest and the process the Council went through prior to attempting to “terminate” Real Whitby

Further astonishing evidence has now emerged concerning the Council process that occurred prior to the attempt to close Real Whitby.

Legal action was mentioned in the forward plan on the 1^st of March and again on the 26^th of March 2013:

Councilor Kenyon is described as the “Lead Executive Councillor” in the Key Decision List.

The item is to be decided by the Cabinet confidentially in closed session to the exclusion of the press and public, as a private item (not flagged ‘All Wards’).

This is despite the fact that the articles are alleged to be “hindering the ability of the Council to discharge a number of its functions”, which – if true – would presumably affect all wards and should therefore presumably have been notified to all Councillors.

The SBC Cabinet consists of:

Councillor Thomas W Fox – Chair – Conservative

Councillor Miss Jane M Kenyon – Member – Conservative

Councillor William Chatt – Member – Unaffiliated

Councillor Derek J Bastiman – Member – Conservative

Councillor Mrs Penny Marsden – Member – Conservative

Councillor Mike Cockerill – Member – Independent

Councillor David Chance – Member – Conservative

Councillor Brian Simpson * – Member – Independent

• * Cllr Simpson was not present at the 23rd March 2013 meeting.

At the beginning of Council meetings the following is minuted:

“Members are reminded of the need to consider whether they have a personal or prejudicial interest to declare in any of the items on this agenda.  If so, the nature of the interest must be declared at the start or as soon as the interest becomes apparent, of the meeting.  In addition, the attached form must be completed and passed to the Committee Administrator.  The Officers will be pleased to advise, if necessary, and any request for assistance should be made, in the first instance, to the Committee Administrator whose name appears at the end of this agenda.  Ideally, such advice should be sought before the day of the meeting so that time is available to consider any uncertainty that might arise.”

The above Councillors appear to have the following potential conflicts of interest in this matter:

• With the exception of Councillor David Chance, all of the above Councillors have been criticised in the national and local press in relation to articles on Real Whitby and this is continuing on an on-going basis.

• With the exception of Councillor Kenyon (who is not seeking re-election to County) and Councillors Chance and Bastiman (who are seeking election to County but are not presently members) all of the above Councillors are standing for re-election at the County Council elections on the 2^nd of May 2013. With the exceptions of Councillors Chance and Kenyon, this potentially gives them all a personal interest in closing down Real Whitby for personal and party political purposes; specifically, to prevent further criticism and debate during the County election campaign which may adversely affect their chances of re-election to some degree and to improve the chances of other candidates or parties. They thus could appear to be using SBC to threaten legal action to try to obtain personal and party political advantage over candidates from other parties as well as independent candidates at the County elections.

• Councillor Kenyon is currently the subject of an unresolved complaint by myself with North Yorkshire County Council and the former North Yorkshire Police Authority, which is being stonewalled.

• Real Whitby revealed that Councillor Kenyon, (the Cabinet member for Finance, Procurement & Legal) is the Chief Financial Officer of a company that is suspended in the United States for nonpayment of taxes. This has still not been resolved, is not recorded on her register of interests and is still an open item.

• Councillor Chatt had a complaint against him by myself upheld last month concerning an email from his Council email address, in which he falsely accused me of criminal conduct, threatened me with the police, alleged that my mother had neglected me as a child and made offensive remarks about me.

• All of the above Councillors have the right to commence proceedings against me in their personal capacity through their own respective solicitors, but have chosen instead to use the good offices of Ms Dixon – financed for free by the Council. In short, if they have indeed authorised the letters, they could appear to have used the pretext that Real Whitby is “hindering the ability of the Council to discharge a number of its functions”, and allegations of unspecified crime and falsehood, to justify using the Borough solicitor anonymously as their personal “weapon of choice”, for personal and party political purposes, thereby evading any personal expense or risk. With the exception of Councillor Chance, this potentially gives them a financial conflict of interest in addition to their personal and prejudicial interests.

Failing to declare personal interests is obviously a serious breach of the Code of Conduct. Those Cabinet Members who have a disclosable personal interest and comply with the Code by declaring it, would have had to leave the Chamber for the duration of the item on closing down Real Whitby.Thus, the Cabinet would have become inquorate.

This would appear to me to invalidate any instruction the Borough Solicitor may or may not have received from the Cabinet.

It would also appear to suggest that the Cabinet cannot rule on this matter at any time in the future – because it has a conflict of interest that will render it inquorate.

It causes me concern that Ms Dixon also has potential conflicts of interest concerning Real Whitby because of her role as monitoring officer:

• The Standards regime for which she has responsibility for has been criticised in Real Whitby.  It has also been criticised in the national press and in a standards hearing as a result of Real Whitby raising the double dipping issue.

• Ms Dixon has been criticised in Real Whitby over the way she has executed her duties as SBC Monitoring Officer.

• The Standards regime at the North York Moors National Park for which she is responsible has also been criticised in Real Whitby. It too has also been criticised in the national and local press following Real Whitby coverage and the resignation of Councillor Lawn. This matter is still on-going. This gives Ms Dixon a further personal interest in closing down Real Whitby to prevent any further criticism of the Standards regime at the NYMNPA.  She is thus the subject of a conflict between her role as Monitoring Officer for NYMNPA and her role at SBC.

The Key Decisions List on the 26^th of March 2013 called for a decision by the Cabinet on the 23rd of April.

However, on the 28thof March 2013, Ms Dixon nevertheless wrote, in the name of Scarborough Borough Council, threatening legal action, i.e. 26 days before the Cabinet was scheduled to come to a decision.  No action was taken against The Sunday Express or Private Eye which have both published similar articles. Ms Dixon has subsequently confirmed that:

“The legal action to which you refer was not discussed at the Cabinet meeting of 26 March 2013, nor was any motion or report tabled in relation to it. The issue of the letter did not require Cabinet approval. Councillor Kenyon did not instigate or suggest the sending of this letter.

I do not intend to comment further on the other comments and statements you have made in your correspondence at this time as the Council is currently considering the next steps in this matter”.

Are we to conclude that no one authorised the letter and it was not discussed by anyone at any time?

“The issue of the letter did not require Cabinet approval”.

So who did approve it? Was it ordered by the leader of the Council? Did anyone approve it?

Was Ms Dixon properly authorised to write demanding the closure of the Real Whitby website and threatening legal action against its contributors? Did she have a mandate to act prior to the Cabinet’s decision? Does the denial in the Council statement mean that they are repudiating her letter demanding the termination of Real Whitby? Why is she acting in a case where she may have a conflict of interest?

The timing of the decison to “terminate” Real Whitby is very curious indeed. Certain officers and members of SBC have been criticised by Real Whitby for some considerable time. In her letter, Ms Dixon states “many of the articles and comments published amount to actionable breaches of civil law”, so if this is true, why did SBC not make a complaint at the time about specific incidents as and when they occurred?

Why has SBC chosen to go straight to the nuclear option – to try and “terminate” Real Whitby now, particularly?

Is it a response to the articles we ran identifying that the former Conservative Mayor of Scarborough Peter Jaconelli was a paedophile? Is it a response to the resignation of SBC Conservative Councillor Tim Lawn over his management of the NYMNPA planning Committee? Or is it affected by concern over the impact of press coverage on County elections less than one month away?

As a way of resolving this, I observed a voluntary moratorium on any postings from the 28^th of March and wrote to Ms Dixon and every Councillor asking them to state what it is that I have written that they are complaining of with an assurance that I would issue a correction/retraction/apology if that was appropriate. Real Whitby also wrote in similar terms.

I have had no response and neither has Real Whitby.

I have asked Ms Dixon to resolve these questions and comment on this article.  She has agreed to “respond within a reasonable time scale. At this stage, I estimate that this will be no earlier than the end of next week but I reserve the right to extend this further if necessary”.

We will publish her response in full, if and when we receive it.

The wider issues.

The current situation is that having issued the letters and statement, SBC is refusing to correct the statement, ignoring any opportunity to specify what its complain is, or resolving this matter by discussion. It is currently maintaining its position that the Real Whitby website should be terminated.

I cannot help but ask what sort of Council is it that uses the “Head of Legal & Democratic Services”  – of all people – to have news magazines closed down, journalists intimidated over unspecified charges, refuses to correct errors in press releases, allows local democratically elected Councils to be misled by falsehood in press releases, refuses to engage in debate, tries to close down a local business and censor the press?  

There have been other attempts to inhibit the ability of the press to criticise Councillors, as reported in the Scarborough News on the 4^th of October 2012:

“Councillor’s Censure Fails

Councillor Peter Popple reported the newspaper (SN) to the Press Complaints commission describing the paper as ‘scurrilous’, ‘irresponsible’  and linked it to the Leveson inquiry which is looking into press standards. But the article was in fact accurate and the councillor withdrew his complaint after the newspaper strongly defended its position.

It had revealed that he was one of a number of councillors being asked to explain allowances claimed for internet usage.

“This complaint was an attempt by a councillor to disrupt the rightful, proper and legitimate duty of a newspaper to publish a bona fide report which was quite clearly in the public interest”, editor Ed Asquith informed the Commission.  Cllr Popple had already ignored three opportunities to comment to the newspaper.”

It is no wonder that someone who appears to be an SBC employee has published a parody of “Downfall” on YouTube, ridiculing senior SBC figures for being in a bunker-mentality.

I understand that SBC was criticised at the Whitby Town Council meeting for failure to communicate openly. This is a classic example and this being the case, SBC must expect that people will air their criticisms and frustrations outside of the Council’s Standards Committee, hence the reason that Councillors are criticised on Real Whitby.

The Scarborough News and Whitby Gazette do not do investigative journalism, they only print what the Council tells them. A perfect example of this was their coverage of the Whitby Town Council debate in which they repeated the allegations made by the Council about Real Whitby, but did not even contact Real Whitby to ask for a comment.

Only Real Whitby holds the Council to account on local issues, an essential function of a free press in a free, democratic society.

The effect of these letters to “terminate” Real Whitby if successful, would therefore be to stop all investigative journalism in the area, thereby protecting Councillors from any critical press scrutiny at all. Whitby will then be the only place in the Western World that does not have a local news organ that scrutinises the local Council. This is absolutely contrary to the public interest and the principles of open and democratic government that every Councillor was elected on.

I find it incredible that Ms Dixon can write trying to prevent any comment on Scarborough Borough Council and then the Council can try to pervert the course of a debate amongst democratically elected Councillors in Whitby Town Council, by issuing a press release falsely denying her remarks. What is going on?

I would repeat that if Scarborough Borough Council will provide a list of the articles it deems to be offensive, indicating precisely which comments they are referring to, along with a list of the associated complainants, I will consider their comments and publish them in full, along with a correction/retraction/apology if this is appropriate, as will any other of the contributors.  Alternatively individual Councillors can obtain redress by posting a response in the Real Whitby comments section.

However, issuing threats on the basis of unspecified allegations of criminality and falsehood, and then trying to use the ridiculous pretext that Real Whitby is “hindering the ability of the Council to discharge a number of its functions” as a basis to close down the only news website that scrutinizes the Council, is an attack on free speech and an attempt to impose censorship by stealth.

It is unacceptable in a democratic society.