Kennet Council and the SWRA
You may remember that I have asked Kennet Council some questions about their membership of the SWRA. For details see :An Englishman's Castle: Regional Assemblies - Help needed
I have just had a reply back from Maria Memoli MBA who is Kennet's Monitoring Officer - she fails to answer the questions (if the technology works I will scan her letter in tomorrow) - so I am asking them again!
Text of my new letter is below - has anyone else had a reply yet? (I was expecting that the Regional Assemblies would have started to produce a standard reply, but judging from the pathetic response I have had they haven't.
The Monitoring Officer
CC Cllr. Christopher Humphries et al
Dear Ms M Memoli
Thank you for your kind reply to my letter of the 2nd March.
I appreciate the answers to the questions you have given and I hope you will not be offended if I ask again for answers to the ones you left unanswered.
To aid clarity I have cut the letter I sent to the basics so that the questions are clear. I have not altered the questions but have added explanatory information in italics - I am aware that The Disability Discrimination Act 1995 (DDA) aims to prevent discrimination against all and it is recommended that one should avoid underlining, avoid use of italics or any mix of fonts etc. – however I am at a loss how else to easily show the new from the original – if it causes a problem please get back to me.
1. Can you confirm that Kennet Council is aware that the South West Regional Assembly (SWRA) is an ‘unincorporated association’ and thereby has no legal personality?
Thank you for answering this.
2. Can you please provide details of all the amounts paid by Kennet Council to SWRA since its inception?
Please could you answer this – the question asks for the amounts.
3. Can you please provide details of all the Kennet Council’s representatives of SWRA over the period this money was paid and whether they were present at council meetings when this payment, the ‘voluntary subscription,’ was agreed in the budget?
As far as I am aware the website only provides current positions – please could you answer this question. Particularly whether they were present at the meetings – if you cannot answer this please could you inform of who can..
4. Can you confirm that at all times the Members’ Interest Book had up to date details of membership of SWRA. If not, can you advise as to when and where the breaches were noted and the date they were corrected?
If it is not your job to monitor such things please could you inform who does.
5. Had the members indicated that they had a pecuniary or prejudicial interest in SWRA? If not, had you, as the Monitoring Officer, advised them otherwise?
Please could you answer this question. Did they or did they not indicate any interest?
6. Were they ever advised by yourself as Monitoring Officer, or any other official of the Local Authority that membership of an ‘unincorporated association’ whose members are ‘jointly and severally’ liable may have personal financial consequences?
I fail to see how the “Surcharge abolition” has anything to do with this issue – this is about members of an unincorporated body – I would appreciate sight of your reasoned advice.
7. SWRA is not recognised as an employer under Section 122 of the Trade Union & Labour Relations (Consolidation) Act 1992.
— Are you aware of this?
— Did you advise Kennet Council’s SWRA members of this?
— Did you advise them that as they were the ‘legal personality’ of SWRA, and as such they could face a potential personal liability for those contracts and pensions / redundancies should there ever be a shortfall in the funding stream?
— Are you aware of any Local Authority underwriting the SWRA / SWRA’s contacts of employment for their permanent members of staff? If so, which authority?
Please could you answer this question – it is whether you are aware of it etc.
I believe that that the accountable body for the South West Regional Assembly is the South West Regional Assembly Board which represents itself as an employers association under S122 of the TU and Labour Relations (Consolidation) Act 1992. However, it has emerged that this is not the case owing to the SWRA Board failing to certificate itself as required under this Act. This position has persisted for at least four years
Matters are further complicated by the SWRA apparently representing itself to the Certificating Officer as an associated body, the SW Provincial Employers Organisation, which is indeed certificated. In fact the SWPEO has it’s own constitution. Again, the SWRA Board has lately changed its name to the SW Region Board. All this conflicts with the 1992 Act’s insistence that there be no ambiguities in naming of an association.
Since the SWRA has not been operating under S122, the legal status of the staff appointments appears uncertain.
10. Can you please provide a copy of the Strategy promoting the well being of the Kennet Council and details of the consultations, which were undertaken detailing how the decision was arrived at that membership of SWRA would be beneficial to the Council Area?
What is the form that the ‘consultation process’ takes?
Thank you for answering this question.
1. Let us leave this one standing until such time as further information is available.
2. I apologise for causing you confusion by the maybe sloppy use of the word “register”. But the gist of the complaint still stands:
In plain language: Members – not the council – appear to be personally financially liable for potentially large sums if the SWRA folds. If any members of the SWRA who are also Kennet Councillors have voted or influenced the payment of money to the SWRA from Kennet then there has been a conflict of influence – I hope that this has not happened and that all such members have raised their interests and left such meetings. I am asking you as Monitoring Officer to confirm that that is what has happened and if not to take it further.
Relates to the Code of Conduct of councillors.
From Part 2.8 (1) of The Local Authorities (Model Code of Conduct) (England) Order 2001,
“A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given in paragraph 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants of the authority’s area, the well-being or financial position of himself, a relative or a friend …”
It therefore appears that Kennet Council’s Members of SWRA have recorded in the Members’ Interest Book the fact that they are only ‘members’ of the organisations (you will be confirming whether they have all done this…question 4 above). They appear not to have registered a ‘pecuniary’ or ‘prejudicial’ interest.
Can you confirm this?
The members’ financial interest arises because as ‘unincorporated association’ it is the members of SWRA who are ‘jointly and severally’ liable.
Therefore, if, as it appears, SWRA is not registered as an employer under the Trade Union and Labour Relations (Consolidation) Act 1992 then it is the members of SWRA who have the legal responsibility for contracts entered into by that body.
The liability of the contracts of employment amounts to many hundreds of thousands of pounds.
Therefore, if Local Authorities ceased to pay ‘voluntary subscriptions’ or there was a change of government whereby these bodies were abolished (or both) the liabilities of the members would become immediate and apparent.
Therefore, for the members of SWRA, sitting as councillors and approving Kennet’s budget and voluntary subscriptions there is a serious breach of Local Government Act 1972 Section 94 (1) as well as breaches of the Members Code of Conduct.
Section 94 (1) states,
“Subject to the provisions of section 97 below, if a member of a local authority has any pecuniary interest, direct or indirect, in any contract, proposed contract or other matter, and is present at a meeting of the local authority at which the contract or other matter is the subject of consideration, he shall at the meeting and as soon as practicable after its commencement disclose the fact and shall not take part in the consideration or discussion of the contract or other matter or vote on any question with respect to it.”
(The disability could not be removed by Section 97 (5) of the same Act because the ‘influence’ of the leader and deputy leader of the ruling group could hardly be classed as ‘insignificant').
Therefore, under Section 94 (2) of the Local Government Act 1972 it appears that an offence has been committed.
I wish you also to refer the matter to the Director of Public Prosecutions for investigation.
I trust that you will treat this complaint with the seriousness that it merits and I will receive a full and thorough response addressing all of the points raised in order for the complaint to be taken to the next stage of proceedings.