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Illegitimate?

Illegitimate?counterbalance prides itself on spotting, shall we say, irregularities, at Fylde Council.

But we almost missed one that is of potentially major importance.

Because of some recent actions undertaken by Fylde's 'Leader' an irate counterbalance reader contacted us to complain.

In doing so, they sparked what we believe will become a significant constitutional crisis for Fylde.


The story begins with the distribution of flyers that sought to influence people not to sign the Fylde Civic Awareness Group's Petition calling for a change of governance at Fylde.

The first of these flyers had the heading:

A Message from Fylde Borough Council Leader
David Eaves

Others were in postcard style, and bore the legend:

"Councillor David Eaves, Leader, Fylde Borough Council"

The Council is prohibited by statute from funding (or or even from supporting) anyone who is trying to influence the electorate one way or another with regard to a petition.

We also know that Fylde Civic Awareness Group took the matter of these flyers up with Fylde's Chief Executive.

They were told by Fylde's CE that:

"the leaflet is not a publication of the local authority and has not been approved, discussed or brought to the attention of the officers of the Council"

The CE added:

"If we had been asked to be involved with or to support this leaflet we would have refused."

That was very clear, but pretty much confusing at the same time.

How come Fylde Council's 'Leader' was putting out literature that looked to be from the Council when it wasn't?

Fylde Civic Awareness Group then took the matter up with Cllr Eaves who told them it was a personal statement from him, and was in no way connected to the Council - adding that it had been funded, produced, and delivered by the Conservative group.

Yet these flyers bore no indication they were political publications. They had no address, no party symbol, and no logo. Not even the name of a party.

The closest they came was that was where some of them said 'This postcard was produced at no cost to the taxpayer'

The wording did appear to suggest they had come from the Council though, and the postcard one featured a picture of the Town Hall on it.

This, of course,  is exactly what we have been arguing is wrong with the Cabinet system at Fylde.

The Councillors we elect do not run it any longer.

The 'Leader' does.

An explanation from another Council sets this matter out with some clarity.

"Section 63 of the 2007 Act vests in the Leader all the Authorityís executive functions. The person who leads the Council, will initially hold all the Councilís executive functions under their personal control. It is then for him or her to choose whether to exercise some or all of these functions."

Within the law, the Leader decides who decides what.

Fylde is run by a Leader who chooses six of his party colleagues to become a Cabinet.

They then take all the day-to-day decisions on behalf of the Council - and in doing so, they often seek to limit the information going to the other 44 councillors we elect.

So in Fylde's case, we see a process that is slicing and dicing, mixing and confusing party-politics with the Council, and we appear to have a Leader who, on those flyers, appears to speak for the Council, and also appears to speak for all Fylde councillors when he styles himself as their 'Leader'.

But as we will see, appearances can be deceptive.

The flyers he sent out upset quite a few folk. One irate reader got in touch.

Rushing to get other articles out, we had a quick look - and to be honest we missed the point that was being made, so we replied to say we didn't think there was a problem. But we sent some background information that addressed the issue for our reader to look at in more detail.

Back came the message that they believed the documentation we'd provided did indeed show a problem.

We looked again and this time we exactly saw the point being made.

That led to us undertaking a full and detailed look into the situation - from which we can say that if our perception is right, (and we believe it is), then Councillor David Eaves has issued those flyers under false pretences.

Apart from containing wholly inaccurate statements, and courting the fringes of legality with their content, by putting his hand into the fire on this matter Cllr Eaves has opened a huge and embarrassing problem for himself and his Cabinet.

It is our view that, at least from 23 May 2011 to 3 December 2012, David Eaves, was not, and probably still is not, the Leader of Fylde Council.

The ramifications of this situation are potentially enormous.

For example:

What documents have been signed by the 'Leader' during that period?

What agreements have been entered into in his name on the Council's behalf?

What are the decisions that have been made by the 'Leader and Cabinet' during this period, and how valid is each one if he is not the leader and the Cabinet is illegitimate?

Should the Council secure a formal legal opinion about the status of all its 'Cabinet' decisions during this period?

Were 'Portfolio Holders' entitled to make Individual decisions if they were not legitimately appointed ? (Only the Leader can make appointments). We counted 21 such decisions within the period he claims to be Leader but was not. (Including decisions about beach huts, the new Town Hall scheme, the disposal of low level radioactive waste at Clifton Marsh, and more)

And not least, what is to be done about the £6,000 a year Leader's Special Responsibility Allowance paid to Cllr Eaves (on top of his £3,500 allowance a year for being a Councillor) and the £4,000 a year paid to each of the six Cabinet members (who get that on top of their £3,500 allowance a year for being a Councillor), and who almost certainly cannot have been appointed to the Cabinet by a Leader that did not exist.

If he was not the Leader, he should not be in receipt of this allowance.

If he was not the Leader, he was not able to appoint the Cabinet - (because only a Leader can do that),

So we have to ask - what plans do they all have to pay these allowances back?

Readers will no doubt want to know how can it have come about that Cllr Eaves is not the Leader?

Well, it happened because of a change in legislation.

Section 44D of the Local Government and Public Involvement in Health Act 2007, says in short, that the Executive Leader's term starts on the day of his election as Leader and ends on the day of the post-election annual meeting of the Council.

Cllr Eaves was properly elected as Leader when the former Commissar resigned in May 2010.

He and his Cabinet then operated quite properly in accordance with the regulations for a year or so.

But Fylde held elections on 6th May 2011

On 9th May 2011, the Council formally adopted the changes wrought by Local Government and Public Involvement in Health Act 2007 (they had decided to adopt them at that date at an earlier meeting), but that earlier meeting failed to specify any period of office for the Leader, either in its resolution or in the Council's Constitution.

The period of office for the Leader therefore fell to the 'default' position that his leadership ended on the day of the post-election annual meeting - as required by the 2007 Act.

On 23 May 2011 (the day of Fylde's post-election Annual Meeting), no Leader was elected by the Council meeting, and no Leader has been elected since.

It follows that Councillor Eaves should have been elected as Executive Leader at the 2011 Annual Meeting of Fylde Council.

He was not then elected, therefore he was not, and since May 2011 has not been, Fylde Council's Leader.

Some in the Town Hall are trying to say that because the law later changed again with the Localism Act, and some of the provisions from the 2007 Act have now been abolished, it doesn't matter.

But it does.

That's because the relevant part of the Localism Act did not come into force until 15 January 2012 - which is after the start of the unelected leadership period.

And even then, transitional regulations issued by Government say that the 2007 Act provisions continued to apply until Fylde made its own declaration of the Leadership term of office.

And Fylde did not do this until their revised Constitution was agreed on 3 December 2012.

So as far as we can see, there's no possibility David Eaves was the Leader of Fylde Council during that period.

Furthermore, because he has not been elected since his term of office ceased on 23 May 2011 (and was thus not its Leader when the provisions of the Localism Act applied), and because he has not been elected since, both he and his Cabinet undoubtedly were, and probably still are, are illegitimate.

As we set out above, we believe that FBC will attempt to downplay the importance of this. They will try to 'minimise the reputational risk to the Council' by pretending that it does not matter. After all, it's only a small administrative slip isn't it? They will no doubt suggest we should, in effect,  just turn a blind eye to what went wrong.

Mind you, for the rest of us, returning to the car a few minutes after an hour's town centre parking is also only a small slip, but we don't find Fylde Council turning a blind eye to that do we? The parking ticket will surely follow.

No, we believe this has enormous implications for Fylde.

So what does it mean, and where do we go from here?

Well first the good news. The situation can be quickly resolved.

A quick meeting of the Council can (and probably will) elect David Eaves as Leader and he will be back in office, able to claim his £6,000 a year allowance again and able to choose his Cabinet - who can re-start claiming their allowances.

Whether he will then continue to put out leaflets against the petition in the name of the Leader of the Council and continue to upset folk, we don't know.

The other bit of good news is that, apart from the issue of allowances, any negative financial aspects should be covered by the Council's 'professional negligence' insurance, so any losses should be borne by Insurers - (That's if someone remembered to renew the policy, and pay the premium, and it covers this sort of thing)

The less good news is the matter of the previous decisions, agreements, contracts and so on that were entered into between May 2011 and today

The status of these is suspect. We don't know if, for example, at (what will at some point become) its first legitimate Cabinet meeting since May 2011, the new Leader and Cabinet could take all those decisions again enbloc and legitimise them, or whether each will have to be looked at individually.

The situation here is unclear. There have been cases where errant councils using the 'we did it in good faith' argument have had their actions found not to be unlawful (although to be honest, the examples we could find seemed to involve procedural errors rather than failure comply with statute). So perhaps it will be that no-one will be taking Fylde to court for their failures.

But, of course, the worst news is not the legality, it is the humiliation that will be heaped on Fylde and its Leader and Cabinet from across the North West - for being so incompetent as to fail to appoint a Leader. That humiliation will be of a scale that they have never before known.

Attending meetings outside Fylde will become acutely embarrassing for members and officers. And it's not something that's going to be easily lived down, even within Fylde.

On the civic richter scale this debacle probably surpasses the pool closures, and we believe that disaster eventually caused the former Commissar's resignation.

We would not be surprised to see the same thing happen with this.

Whether the present (non?) Cabinet members ought to be in the frame to become a new Leader if that happens is a moot point. We'd been expecting Princess Karen to be crowned, but this could alter things. They are all tainted by this.

Attention will no doubt focus on the officers, and there could be serious ramifications for some who might be implicated in what is yet another governance failure for Fylde. That's really not something we would wish on individuals.

It is this awful Cabinet system that has made the generic officer class at Fylde turn away from the Council and toward the needs of the Cabinet. It is bad for openness, bad for transparency, and it is bad for democracy.

More than once in recent weeks we have seen emails at the highest levels that seek to avoid telling the whole truth and attempt to present answers to enquiries from members in a partisan way, or which fail to address the issue in hand.  Fylde is become like Shakespeare's 'State of Denmark'

Governance failures of the frequency and magnitude that we currently see emanating from Fylde are a sure sign that something is badly wrong. Either the 'protocol' staff have been cut so thinly there are no longer enough of them to do a proper job, or they are being prevented from doing it properly by an assertive Cabinet striving to harvest every last vestige of power to themselves.

Our own take here is that we attribute it to the Cabinet system that focuses power in too few hands. A broader basis for decisions would almost certainly result in a more balanced response from officers.

All this sorry saga is an absolutely crystal clear reason why it is SO important to change the way Fylde Council works.

We cannot imagine a better advertisement for changing the system of governance than being surrounded by one that is so incompetent it cannot even manage to elect a Leader.

And if the present system is so good, what on earth can the 'Leader' be so afraid of that he has to resort to sending out personal flyers that appear to be from the Council when they are not.

If our readers do nothing else, we urge you to go to www.fylde.biz and download a petition form. Get as many signatures as you can, and hand it in at one of the shops who are listed on the same website.

Change at Fylde is LONG overdue.

Dated:    13 March 2013

Postscipt:

Local Government watchers amongst our readers, can follow this link to a pdf summary of the technicalities of the legislation.


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