Wednesday, August 12, 2009

Council letter filed in drawer marked: You would say that, wouldn't you?

Surprise, surprise! I'm hearing rumours that the city council's reaction to our complaints that they are too secretive is to ... become even more secretive!

Apparently, the council has now reduced the number of people who get to see confidential documents so that even fewer people are in a position to question what they are doing and how. I don't know who has been removed from the distribution list or why as, obviously, the council isn't publicising its decision!

Below is my full response to the council's letter outlined in my previous post, showing why:

  1. The Bowstring Bridge decision should not have been taken in private
  2. The council's hysterical claims around the damage we did in reporting what happened was just that - hysterical
  3. It's rubbish for the council to claim that they were not making a decision to knock down the bridge last week.

WARNING: If my last post sent you to sleep, skip this one! It goes into even greater detail as to what we don't like about the council's position!

Dear Mr. Nicholls,

I have been provided with a copy of your letter dated August 5th to our solicitors, Foot Anstey. I have filed it in the drawer marked ‘you would say that, wouldn’t you.’

It seems to me that you seek to find the most obstructive reading possible of the Local Government Act 1972 to prevent public access to Council meetings.

Furthermore, I would point out that simply making statements does not make them true.

Let us first deal with your assertion that the council does not have a blanket policy which automatically excludes certain forms of exempt information without first considering the public interest test on each occasion. Whilst it may be true that the Council does not have an explicitly stated policy to such an effect, the council does, de facto, operate such a policy as evidenced by the following points:

  1. As you yourself point out, the Act requires that the Council consider, in all the circumstances of the case (my emphasis), whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. This clearly requires a balancing act, a consideration of both sides of the argument – the benefits of confidentiality and the benefits of openness so that you can decide in each case whether or not the balance comes down in favour of openness. The advice to the cabinet on Monday – and indeed your statement in your letter – simply lists those points which you believe make it against the public interest for openness. Where were the Councillors advised of benefits to be had from public discussion in this case? They were not. So how could the councillors, in all the circumstances of the case, make a decision? They could not. They made the decision based on some of the circumstances, ignoring all those which may have swung the balance in favour of openness.

  1. This is always the case at all meetings of Leicester City Council and its committees. Councillors are always told that a report is marked not for publication because it contains exempt information as defined by Part 1 of Schedule 12A of the Local Government Act 1972 – they are never told the meaning of the legal requirement for them to consider the public interest test. The contra arguments, those in favour of openness, are never listed on the documents.

  1. My Political Correspondent, Martin Robinson, has attended hundreds of meetings under the auspices of your authority and has never once heard a discussion around the public interest test in which the authority has spelled out the benefits of openness so that councillors could carry out the public interest test taking into consideration all the circumstances of the case.

  1. I have studied dozens of sets of minutes and cannot find a single instance where councillors have decided that the public interest test comes down in favour of openness – this, I would suggest, is because councillors are not asked to perform the public interest test taking into account all the circumstances of the case. See above, they are given one side of the argument.

  1. The current chair of the scrutiny committee told me that he cannot ever remember having had the public interest test explained to him: ‘I cannot remember it though it may have been mentioned. If it was it was a very low hurdle to get over.’ I asked him whether he was talked through the test on each and every occasion that he agreed to put something into the private part of a meeting as is required by law. He replied: ‘Definitely not.’ I further asked him whether or not he was ever advised on the benefit of hearing any such item in public as opposed to in private. He replied: ‘Definitely not.’

  1. Former council lead on resources, Councillor Peter Coley, told us that the public interest test was explained on a few occasions ‘most usually as part of a wider discussion instigated by ourselves.’ He further states: ‘Officers did not specifically talk me through the test on every occasion that it was suggested an item should appear (in private), but would nearly always offer some justification for wanting an item heard in private. On the odd occasion when it was not clear why an item should (be heard in private) then I would challenge the reasoning and the officer would provide a rationale which sometimes led to discussions as to whether the public interest outweighed the given reason to hear an item in private.’ He added that on ‘a number of occasions’ the then council leader would challenge the officer’s decision and the public interest test would be carried out. In other words, as a matter of course, there was no public interest test and it only happened on the occasion that a councillor challenged an officer.

It is clear that there is no evidence whatsoever of the Council collectively or its officers /councillors individually carrying out the public interest test and taking into account all the circumstances of the case. There is plenty of evidence of them failing to carry out the test, including your own description of what happened in the meeting that we challenged on Monday.

Moving on to your assertion that our publication of leaked material has seriously undermined the council’s financial and business position. This statement is made without evidence and I do not accept it.

Let’s look at the figures we ‘revealed’ and consider how they might undermine the council’s position.

Our articles have detailed only four figures:

  • A cost of ‘up to £472,000’ for demolishing the Bowstring Bridge
  • An initial payment from DMU of £1 for land
  • Two further payments of £250,000 and £500,000 by DMU as the project progresses.

The first of these figures – the ‘up to £472,000’ to demolish the bridge – appears to be the one that is causing most concern to councillors and would appear to me to be the only one which you might claim ‘would have the potential of unnecessarily enhancing public costs.’

But this figure has been in the public domain for several years – placed there by the city council. In November 2007, a senior councillor was quoted in the Leicester Mercury as having said it would cost about £500,000 to demolish the bridge.

Furthermore, the authority has consistently quoted publicly in its Corporate Capital Plan that the cost of the demolition would be £466,000.

See, for example, the meeting of cabinet on January 27 2003, agenda item 172:

5.2 Duns Lane
(Bowstring Bridge) £466,000

Further surveys are being carried out, but the likelihood is that the bridge will need to be demolished for Health and Safety reasons.

Again, see the minutes for the meeting of the economic development and planning scrutiny committee on March 22 2007, agenda item 125

3.23 Duns Lane
(Bowstring Bridge) £466,000

This will need to be demolished for health and safety reasons.

Although I have highlighted two occasions in which the authority has put this ‘confidential’ information into the public domain, the figure appears in the publicly available papers of dozens of meetings over the past few years. Indeed, the confidential papers of Monday’s meeting recommend that councillors agree for the immediate release of funds ‘allocated in the capital programme for 2009/2010 to undertake the demolition of the Bowstring Bridge.’ So, what the councillors agreed to do was to spend up to the amount contained in the publicly available document.

I think it is fair for us to repeat our suggestion that it is rubbish that our ‘revelation’ of this figure might cost the council – and taxpayer – money.

In further statements issued to the Mercury since the meeting, it is clear that the council was already well on with the process of selecting contractors to demolish the bridge. We have been told that demolition is due to start ‘around September 21’, a little over six weeks away. This suggests that considerable preparatory work has already been done in terms of the procurement process as it is difficult to see how else a tendering company would have time to undertake the appropriate level of due diligence, come up with a quote and get their workforce into place is such a short timescale. It is difficult to believe that a company that far down the road would not already have seen the publicly available estimate of £466,000.

This statement does, however, conflict with another given to us by the council which says that notice to quit was given to the occupant of the arches last week – before the decision to go ahead with the demolition was taken – and that the arches would be vacated by the ‘end of September’ and ‘we are hoping to start demolition work as soon as possible after this time.’

It is clear from this latter statement that public discussion of this point would have no affect whatsoever on the outcome.

The other three figures contained within our reports relate to the deal you have negotiated with DMU – they have already seen these figures and agreed to them. It is difficult to see how our reporting of them could damage the deal in anything other than a hypothetical way, underlying our assertion above that a proper consideration of the public interest test may well have led to a decision to hold the discussions in public.

Finally, I come to your claim that: Further, it appears [the newspaper] has misled the public into thinking that yesterday’s decision was to demolish the bridge, whereas authority was given by Cabinet as long ago as July, 2005.

(We will put aside the fact that you emailed the letter to our solicitors on Wednesday, which suggests to me that you wrote it on Tuesday but needed to get it signed off by your senior colleagues and/or political masters, thereby delaying it by 24 hours).

As far as I am concerned, your claim that the meeting on Monday did not approve the demolition of the bridge is the sort of political double-speak that leads to people not trusting politicians.

It is true that cabinet did approve the demolition in 2005, but, in each year since then, the bridge has not been demolished. The decision in 2005 was taken because council officials said the bridge would ‘fall down within a year’ if it was not demolished. It had nothing to do with a potential deal with DMU so, while a decision was taken in 2005, in each year since then, the council has decided, by default through its actions, not to demolish the bridge. On Monday, a decision was taken that would lead directly to the demolition of the bridge – councillors finally agreed to spend the money they had set aside to knock it down.

Furthermore, the report to committee in July 2005 makes it clear that a decision to demolish the bridge had also been taken on January 9 1997. ‘Eight years have now passed since the original decision was taken to demolish the bridge,’ the report in 2005 stated. Yet despite this decision, the July 2005 meeting ‘decided’ again! Now another four years have passed, but this time the council says the decision did not need to be taken again.

However, it is clear that the bridge could not be demolished without the decision taken on Monday as this was the point at which councillors agreed to spend the money.

It is, therefore, hardly surprising that in the years since 2005, officers and members of the council have been confused about whether or not the bridge was to be demolished. There are numerous reports in our newspaper where senior councillors, especially Councillor Patrick Kitterick, are quoted as using terminology which implies that the bridge may not be demolished. Specifically in March 2008, Councillor Kitterick said that a temporary stopping order on a footpath over the bridge was being applied for to give the authority more time to ‘make a decision about the permanent stopping order.’ If the bridge was definitely being demolished, why did the authority need more time to make a decision? If it was definitely being demolished, the council definitely needed the permanent stopping up order. In October 2007, Councillor Kitterick said: ‘Development plans are being discussed with DMU which may involve the bridge being removed. Nothing has been settled yet.’ In September 2005, council finance spokesman Councillor Pete Coley said: ‘We’re keen to look at every viable suggestion that could save the bridge …’

It can be seen that senior councillors were of the opinion that the bridge might not be demolished even after the decision of 2005.

And they were not alone.

Council officers also seem confused as to the status of the decision:

In a report to the meeting of the cabinet on March 13 2006 – several months after the ‘decision’ council officials put the following line into a document outlining the council’s corporate capital programme:

3.28 Duns Lane
(Bowstring Bridge) - £466,000

Further surveys are being carried out, but the likelihood is that the bridge will need to be demolished for Health and Safety reasons.

The same report had been sent to the cabinet meeting on March 2005 – before the ‘decision’ of July 2005 – indicating that council officers did not see that the situation had changed.

The same report also went to the full council on March 16 2006, indicating that neither members of the cabinet nor the full council saw anything wrong with the official’s appraisal that it was likely the bridge would need demolishing – this again is several months after the decision which you say was final from July 2005.

By the meeting of economic development and planning scrutiny committee of March 22 2007, this has changed to:

3.23 Duns Lane
(Bowstring Bridge) - £466,000

This will need to be demolished for health and safety reasons.

Presumably something happened during that 12-month period? If the surveys referred to in the meetings of March 2006 had found that the bridge was not in danger of falling down, would it have been left standing? If not, why did council officers consistently say only that it was ‘likely’ the bridge would be demolished? How is a member of the public or press supposed to interpret that? Surely, if you are correct about the status of the ‘decision’ taken in 2005, the health and safety surveys were irrelevant – the bridge was being demolished. Why was the council spending further money on surveys to decide whether or not the bridge needed demolishing?

Finally on this point, we have several articles in the Leicester Mercury in which De Montfort University, when speaking about their planned £6-million development of the site (it’s interesting that this figure can be given in public without endangering the procurement procedures of the university) have said repeatedly that they would not comment until the fate of the bridge had been decided. This they continued to say long after the July 2005 ‘decision’.

All in all, it is clear that while a ‘decision’ was taken in July 2005, nobody at the council – members or officers – nor anybody outside the council (DMU and campaigners) thought it was a final decision. The decision on Monday was the one which sealed the fate of the bridge.

Despite all of this argument about the rights and wrongs of your actions under the law, the most depressing aspect of the issue is that the council claims to believe in open and transparent government and yet continues to look for the harshest possible reading of the 1972 Act to meet in private.

You should know that I consider the final paragraph of your letter to be nothing but a thinly veiled threat to this newspaper, by which you attempt to restrict our right to independent reporting of the Council’s affairs. It will not succeed. We will continue to reveal, at every opportunity, the hypocrisy of a council that says it believes in open and transparent government, but ignores the very law introduced to give the public rights to see decisions being made.

Finally, being aware of your professional obligations, I confirm that you may henceforth correspond directly with me; there is no need for you to write to Foot Anstey, or copy them in on correspondence.