The Chamberlain News

Clancy: questions of conduct

As we wrote on Thursday, whilst matters of process might seem secondary to clearing Birmingham’s streets of bin bags, they go to the heart of the political crisis at the Council House. Now, Chamberlain News can reveal extraordinary legal advice given to the leader of the council which raises the prospect of him having breached the code of conduct.

Chamberlain News has seen the email sent by Cllr Clancy to members of his Cabinet on 17th August seeking their support to go ahead with the compromise reached with Unite including allowing one of its shop stewards to return to work.

We have also seen the formal advice on the matter from the City Solicitor, who also holds the statutory role of Monitoring Officer in the Council, and legal opinion from an eminent barrister which makes clear such an email should never have been sent.

The legal opinion and Monitoring Officer’s advice are unequivocal in advising Cllr Clancy that he is not empowered by law or the constitution of the council to take an “executive decision” on staffing matters. The City Solicitor states:

[We] are of the view that Cabinet do not have the authority to take such a decision and have not taken an executive decision…

The legal opinion was written on the same day as the email was sent to the acting depot manager (18th August) and was forwarded to the leader, Cabinet members and senior officers with a covering note and summary by the City Solicitor and Monitoring Officer on the evening of Sunday 20th August.

Reports from the City Solicitor and the Barrister engaged by the council explain carefully, but succinctly, why Cabinet cannot take decisions on specific employment matters.

The legal opinion says the proposition of urgency in Cllr Clancy’s email of 17th August is “plainly wrong.”

The Barrister – one the country’s leading legal minds on local government – puts it in clear terms:

Article 13 of the Constitution of Birmingham city council deals with executive decision making. Such is expressly stated. It does not deal with other decision making. Accordingly, on the face of the article and bearing in mind the law, staff is excluded from article 13.

The City Solicitor concludes:

The ‘Executive Decision’ asserted in your emails as having been taken by Cabinet on 18th August relating to both a Cabinet agreement to a compromised position to reinstate the [Grade 3] Leading Hands and the lifting of the suspension of the shop steward cannot stand for the reasons given…

She continued:

…no single member can bind the authority to an agreement….nor can the Cabinet take a constitutional decision in the way it was suggested in your emails on 17th/18th August…

The City Solicitor strongly advised the leader to return to Cabinet to find a way forward.

The final paragraphs in the City Solicitor’s memorandum and in the QC’s opinion begin to raise questions as to whether John Clancy had breached the Councillors Code of Conduct or even broken the law.

The Barrister says:

Any decision which is not supported by the legislation, which has distributed functions, is in, short, beyond the law or, in conventional terms, ultra vires.

In particular neither the leader nor the executive has the power, because they do not have the function, to do what is sought to be done by the email of 17 August 2017.

I do not embark on a discussion of misfeasance in a public office but it can be defined in terms of knowingly or recklessly pursuing an ultra vires course of action.

For her part, the City Solicitor having taken account of the QC’s advice, said:

By way of reminder, if a course of conduct is embarked upon that undermines the decision making process of the Council according to its constitution, then it would be apparent that the Councillor Code of Conduct and the principles undermining it would be breached.

This would be a very serious matter for a councillor, no matter what office they hold ie no individual councillor can make decisions or public statements which appear to be decisions outside the governance processes of the Council and the Counsel’s opinion sets out an example of potential liability.

In addition, a councillor acting in any capacity, when embarking on decision making should also have regard to those principles set out in the code of conduct and in the knowledge that those principles would be breached if illegalities are knowingly pursued.

So councillors have a duty to uphold the law, respect others and not discriminate against others, respect the impartiality and integrity of Council’s statutory officers and not bring the authority or their office into disrepute.

In the Cabinet email of 17th August, Cllr Clancy was careful to highlight the differences between councillors and senior officers and that he had received strong objections to the proposal to allow the shop steward to return to work from Interim Chief Executive Stella Manzie.

He says that senior officers:

…were concerned that the outline terms under which the strike was to be lifted and under which further discussions were to take place would expose the Council to a higher level of equal pay claims.

Cllr Clancy’s position since the end of last week was that the relevant advice on equal pay had not been available at the time of reaching an “agreement in principle” with Unite. His email to the Interim Chief Executive on 15th August and his note to Cabinet colleagues on 17th August acknowledge the strength of advice from officers on exposing the council to a higher level of equal pay claims.

In his 17th August email to Cabinet, he goes on to say:

Equally, if this compromise is not carried through, the disruption to our communities will be substantial and the reputation of our City will be undermined.

In the same email, he explains his reasons for disregarding advice from the Head of Paid Service, for speed, and asking the Cabinet to take a “key decision.”

There is considerable urgency because I fear that any publicity surrounding the possibility of the Council reneging on the compromise which we negotiated on the Council’s behalf through Acas will result in resumption of the strike and will make achieving any future compromise significantly more difficult.

Well, he was right there. But wrong to cite urgency as the basis for a “key decision.”

Essentially, Cllr Clancy asked Cabinet members to respond with one of three answers:

• support the decision “including the decision to permit this shop steward to return to work…”
• or oppose the decision
• or defer the decision until a proper Cabinet meeting, with an opportunity to hear from officers.

Chamberlain News has not seen the replies or any record, but understands three Cabinet members refused to support the decision and raised constitutional concerns.

In Cllr Clancy’s email to Cabinet colleagues, says:

Based upon the advice we received from officers, councillors negotiated a compromise which included provisions to allow the relevant shop steward to return to work.

But Chamberlain News understands the grounds on which the leader asserted Cabinet authority in the negotiations with Unite were far from solid.

We understand that the possibility of making the Grade 3 roles redundant and creating new posts at a later date had been discussed by Cabinet members and senior officers; as had the option to remove the redundancy of Grade 3 Leading Hands from the 27th June Cabinet Decision with the intention of returning to the matter at Acas talks where the basis for equal pay claims and financial implications could be shared with Unite under legal privilege.

Cabinet members had been involved in drafting language and answering questions, but were not party to the negotiations which only involved Cllr Clancy. The leader, it would seem, grew frustrated with the contributions of Cabinet members and officers in telephone exchanges, text messages and emails.

It would appear that Cllr Clancy was not able to secure agreement from Unite’s Howard Beckett on alternative proposals, so reached agreement to retain the Grade 3 roles and “specifically how best [they] can now be maintained and developed.”

Cabinet members were not informed by the leader that agreement had been reached or consulted on the public statement published by Acas. We understand a Cabinet member suggested the Monitoring Officer inform Acas the agreement was not a decision of the Council.

From the email exchange we revealed earlier this week, we know that the Interim Chief Executive set out her serious concerns to the leader on the evening the agreement was reached. Following release of the Acas statement, the Council issued its own statement later on 16th August stating that the Acas statement did not represent the view of the council.

Supporters of Councillor Clancy have claimed that the leader did not have sufficient advice from officers on the legal and financial implications of possible equal pay claims arising from retaining the Grade 3 roles. Only after an agreement had been reached and the leader had the benefit of further legal opinion was he satisfied that retaining the Grade 3 roles would bring about “very large” equal pay claims as well as sex discrimination and maladministration claims, in turn triggering serious budget implications.

Chamberlain News has investigated, as far as is possible, what information was available to the leader when. We understand he:

• was briefed soon after taking office as leader on equal pay by the Monitoring Officer
• given Counsel’s advice on 2nd February 2017
• read reference in Private Report to legal and financial implications alongside Reorganisation of Waste Management Service Cabinet Paper on 27th June
• received Equal Pay Briefing on 31st July 2017
• had meetings with the Council’s Statutory Officers on 3rd and 7th August
• received written advice notes from the Monitoring Officer, including Legal Opinion, on 8th and 9th August
• received briefing at informal Cabinet on 10th August
• received Cabinet Paper on Equal Pay Strategy on 14th August, not permitted to the agenda for 15th August Cabinet but discussed at 24th August meeting.

Chamberlain News has seen some but by no means all the contents of these briefings. We are satisfied the advice on the equal pay risk had been clear and consistent prior to the “agreement in principle” with Unite on 15th August.

At this point, it is difficult to suggest that there are yet satisfactory answers to the three key questions we posed on Thursday.

• It would appear Cllr Clancy operated beyond his formal powers in making and executing a specific employment matter as part of the “compromise agreement” – the advice from the City Solicitor and learned legal opinion make that abundantly clear. The leader’s commitment to cabinet decision making, as well as respecting the advice of the council’s statutory officers, was minimal at best.
• All available evidence would suggest Cllr Clancy was not acting in good faith when agreeing “in principle” on behalf of Birmingham city council cabinet.
• There were numerous occasions on which senior officers and others advised him over an extended period in relation to the equal pay risk and financial implications resulting from retention of the Grade 3 Leading Hands roles.

Even Cllr Clancy’s fiercest critics agree he had the best of intentions when directly intervening in the dispute. He wanted the bin men back at work, bags cleared from the streets and the dispute back to the negotiating table and then resolved with savings made.

But, it would appear he made a deal that could never stick. In doing so, he lost the confidence of political and officer colleagues and damaged industrial relations. There are serious questions of trust, accountability and, most seriously, conduct.

The ends do not always justify the means, not least when the situation on the streets and in the depots today is no better than it was on 15th August.

As our colleague Neil Elkes on the said this week, Birmingham city council appears as dysfunctional as when Lord Kerslake delivered his withering assessment of the local authority’s governance three years ago.

That’s hard to argue.

In a statement issued to Chamberlain News, after we had asked a series of detailed questions relating to the events in this story, a Birmingham City Council spokesperson said:

Our over-riding priority is to ensure the dispute is resolved as quickly as possible so the citizens of Birmingham get the modern, effective and efficient refuse collection they deserve. It would not be appropriate to comment on legal discussions at the current time.

Following the story, Cllr Jon Hunt, leader of the Liberal Democrat group, told the Chamberlain News:

It beggars belief John Clancy is still in post.

It would appear that another inquiry is needed – by the city’s standards committee, both into the leader’s actions and those cabinet members who went along with him and supported his actions.