THE COUNCIL’S Legal Department has failed to respond to two pre-action letters sent by solicitors acting on behalf of the local authority’s Labour Group as ​the​dilemma over the future of David Boswell’s membership of the Council has taken yet another turn.

The Herald understands that the Council’s Legal Department now fears that if the Pembroke St Mary North ward was declared vacant, Mr Boswell might have a legal action against the local authority.

That potenital threat is two-fold: firstly, in relation to any change of position on the advice from Monitoring Officer Claire Jones he has relied upon; and, secondly, in respect of the potential prejudice formally removing him might cause to his scheduled trial at Swansea Crown Court.

Had Mr Boswell’s trial taken place as scheduled neither of the above issues could possibly have arisen.
Suspicion is growing among some council members that Council officers were counting on the trial being over to avoid embarrassment over the advice given to Mr Boswell by the officer upon whose advice they are entitled to rely upon as the last word.

However, the legal pressure has grown upon the authority. A letter before potential proceedings has been sent by a firm of solicitors acting for the Association of Labour Councillors.

With their initial letter unanswered, a second letter has now been sent from those solicitors which takes the Council to task both for their failure to respond to a letter marked ‘URGENT’, but also for statements made by the Monitoring Officer to the press and alleged comments made to councillors.

The Herald can confirm that despite receiving both letters, the Council has failed even to acknowledge their receipt at the time we went to press.

To quote the ALC Solicitor letter to the council​:​​ “​We strongly disagree with your interpretation of this legislation and urge you to declare the vacancy as soon as possible. We do not consider that it is accurate or reasonable to describe a members’ seminar as a meeting of the local authority.”​

The Council’s position turns on whether or not seminars for members are council meetings.

If they were Council meetings, the Council’s Legal Department would have been able to provide minutes of those meetings.

Council meetings, at law, are subject to rules in relation to publishing the agenda, setting out the the timetable, clear rules in regards to voting, and minute taking.​

None of those apply to a seminar.

And the Council’s Legal Department refused to provide any of the information that define a Council meeting to this newspaper, claiming that it wanted to explain the legal situation to members first.

What that has to do with providing information that – if it exists – would prove the Monitoring Officer’s contention that seminars are meetings is unclear.

The Solicitors’ letter sent to the authority, sets out that position with a stinging rebuke to the Legal Department’s stated position, saying: ‘If it does not sound like a council meeting and it does not act like a council meeting, then it is more than likely not a council meeting’.

And ‘more likely than not’ is the key legal test. Not beyond a reasonable doubt, as in criminal proceedings.

Of course, the Council’s position would be stronger if it did not publish information likely to be of assistance to other potential parties to litigation.

At a meeting in 2011, a key Council committee considered a range of governance issues including member attendance at meetings.

The committee endorsed the position that members’ attendance should be published.

It even set out what meetings would be covered.

‘That the recording period cover each municipal year, and the record apply to attendances at formal Council body meetings (Council; Cabinet; Committees and Sub-Committees)’.

More fundamentally, it ‘suggested that training events/seminars be included in the attendance record’.

The distinction between what the Council then resolved were meetings on the one hand and members’ seminars and training on the other is crystal clear. If seminars were ‘meetings’ under the law, attendance would be recorded as a matter of course.

That is not the whole list of what is in the law covering council meetings. That also includes meetings which councillors attend as representatives of the authority.

However a list of what constitutes a council meeting cannot just be added to as and when a local authority finds convenient. A strong legal position would be that just because a statutory list of ‘meetings’ is not comprehensive (which is a fair reflection of the legal department’s position on the Local Government Act) that does not mean meetings which do not meet the criteria for council meetings can then be called council meetings.

The ridiculousness of the situation is best illustrated by the fact that on Wednesday (Feb 28), Mr Boswell attended a members’ seminar of an authority of which he is quite possibly no longer a member, while no press or public were admitted to the ‘council meeting’, no minutes were kept, and no agenda was published.

Why the Council’s legal department has been so reticent about replying to an urgent solicitors’ letter is a mystery, although no suggestion is made that it is either because council officers are hoping to ‘run down the clock’ in order to forestall taking any action at all or because they are paralysed by indecision.

In an email sent to all county councillors marked ‘CONFIDENTIAL’ in large red letters the Monitoriing Officer forcefully reminds members not to say anything that might jeopardise Mr Boswell’s trial. The Council’s monitoring officer appears also to suggest the Council has advice from ‘Leading Counsel’ (usually a QC) to support its position.

Advice from a barrister, even a leading one, is usually dependent on the content and quality of the instructions sent to one. There is a world of difference between a barrister being asked to advise a client and a barrister being asked to advise how a client might wriggle off a hook of their own making.

There is also a faint suggestion that legal advice obtained by the Council for the benefit of the authority might not be shared with all members. The way in which the email is set out makes it difficult to determine whether the Monitoring Officer would propose releasing advice on a limited basis. In addition, when quoting the Code of Conduct, Ms Jones states that members of a political party should consider whether or not they should declare ‘either a personal or prejudicial interest when speaking and voting’ on business of the authority.

That section of the email appears to be a remarkable attempt to prevent any debate by councillors of the cleft stick the council’s own officers have placed the authority in.

With dire warnings about ‘predetermination’ and ‘recent media stories’, Claire Jones seems to confuse discussing the potential that she might have got it wrong with expressing a view on whether or not Mr Boswell is guilty of the allegations – and that is all that they are – he faces.

The latter, it goes without saying is – quite properly strictly forbidden – the former is not the same thing at all.

Ms Jones’ email warns councillors of the dangers of expressing views as to whether or not she is wrong before an occasion upon which elected members can express a view. However, Ms Jones will know that pre-sentiment is not pre-determination, that councillors are permitted to make their minds up for themselves, and that the purpose of the rules about pre-determination and potential bias, as made clear by guidance given by the Public Services Ombudsman, is not to stifle either political or public discussion of contentious issues.

In addition, seeking advice on whether the Monitoring Officer is herself right or wrong is not predetermination by any means.