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Another Whitewash?

Another Whitewash?When Fylde's Streetscene debacle blew up in 2009 (they had overspent by £600,000 and failed to hit their predicted income by another £100,000 - leaving Fylde down overall to the tune of £700,000), a report laid the blame at the door of an officer in the Streetscene department.

He eventually "agreed to leave the Council's employment via a compromise agreement" (which we believe included a 'confidentiality clause' to limit what he could say), and the whole matter was then painted with Whitewash.

Fylde even changed the name of the department.

We wonder if Fylde's latest decisions on the matter of disclosable interests concerning Cuadrilla is heading the same way.

In our article 'Fracking Interest' last August, we reported that Fylde Councillors Fiddler and Threlfall were at the centre of a maelstrom of suspicion and protest after they declared they had received payment for access to land in their ownership for the seismic geological survey undertaken on behalf of Cuadrilla in 2012.

A combination of items on the Council Agenda of 28th July 2014 saw each of them declare both a personal interest, and a prejudicial interest in respect of these payments, and they left the room and took no part in the debate or vote.

But there had been several occasions between their receiving the payment in 2012 and the Council meeting of July 2014, when both councillors had participated in other meetings concerned with Cuadrilla.

This meant that they should have declared their interest at the time of those meetings, and not taken part in them.

At the request of a friend (and chiefly because officers at Fylde had indicated it would take too long, or they didn't have time to go through the agenda and minutes of the relevant meetings since 2012 to establish whether interests were properly declared or not), we trawled Fylde's official documentation and the video webcasts. We listed these meetings in our previous article 'Fracking Interests'.

Having looked the documentation, we concluded that both ought to have declared interests at the meetings, and not to have taken part in them.

Whilst this applied to both Councillors, in our view, the most compelling irregularity during this period was the installation of Cllr Threlfall as Chairman of the Shale Gas Working Group. He had accepted that role, knowing he had received a payment for the use of his land for a geophysical survey. That survey was commissioned by Cuadrilla.

We concluded the article by saying that we could not see how Fylde's (then) Leader, Cllr Eaves could allow Cllr Threlfall to remain Portfolio Holder for the Environment, and we were doubtful that Cllr Fiddler (who holds the Planning Portfolio) could escape some form of censure either.

But our chief concern in the matter was that there were grounds to believe that the failure of these two councillors to regard the payment as a Disclosable Pecuniary Interest (which is a different category than either a personal or prejudicial interest) meant that one or more criminal offences might have had been committed, and in the interests of probity, we wondered whether Fylde's officers would invite the police to look at the evidence to see if this was the case.

Fylde's own internal standards procedures require councillors to disclose 'Personal Interests' and 'Prejudicial Interests'. Allegations of failure to do so in these matters are considered (and sometimes investigated) by Fylde itself.

But for Disclosable Pecuniary Interests, both Fylde and the law requires all Councillors to sign a publicly available register in which they declare all benefits they receive in specific categories.

Where apparent transgression of the requirement to disclose a pecuniary interest arises, it is the police who are responsible for investigating the matter, and the Director of Public Prosecutions considers their investigation and decides whether to prosecute or not.

We know that on 29th July, (the day after the Council Meeting) a formal complaint was made to Fylde's Monitoring Officer.

The response to that complaint appeared reluctant to conduct a proper investigation into the matter.

By 15th August, Fylde was still apparently trying to avoid conducting an investigation and suggesting they resolve the matter with an informal discussion with the complainant.

This is not unusual. It's actually Fylde's policy to minimise the need for investigations.

Consider this extract from a report to Fylde's Standards Committee Agenda of 8 October 2014. The "Monitoring Officer introduced the report. She explained that she was responsible for making an initial assessment of complaints and deciding whether to investigate them. The Standards framework placed an emphasis on working with individuals to bring about mutually acceptable solutions, and ensuring that breaches did not re-occur. Where it appeared that there may have been a breach, the Monitoring Officer may refer a matter for investigation".

Although it might surprise some of our readers, we have some sympathy with this approach. The arrangements for 'lesser' interests was designed and is intended to reduce the complaints amongst councillors about childish 'hair pulling'.

But it was not intended to be a mechanism to kick important complaints into the long grass.

Eventually, the complainant in this matter was told that it would take a long time to gather the information and it was implied that Fylde's officers simply did not have the time to trawl through the agenda and minutes of meetings from April 2012 in order to establish who had declared interests at various meetings, and who had not.

So, as we said, we did it for them.

After we published the details that Fylde's officers apparently did not have time to research, the complainant again contacted Fylde and, citing our research, requested an investigation into the Councillors' failure to declare the appropriate interests at meetings concerning Cuadrilla's operations they attended between April 2012 and July 2014.

A month later, Fylde did not appear to have made any significant progress on this matter, and in the apparent absence of any action, we presented information to the police and asked for their advice as to whether they thought one or more crimes might have been committed.

Quite separately, and unconnected with our request for advice, we understand that two other people spoke with the police, and they may have made complaints about the two councillors' conduct.

Our own inquiry to the police was treated promptly, and with courtesy, and we know the concern we raised was given serious attention.

We understand that very senior police officers met with Fylde's Chief Executive, where they were "satisfied that the Council have carried out an investigation in relation to both councillors by the ethics/standards committee at Fylde Borough and in essence there was no finding of any wrongdoing".

Technically, this cannot be correct, because Fylde's internal standards investigations are actually commissioned (or sometimes undertaken) by an officer of Fylde Council. If the officer recommends any further action, Fylde's Standards Committee simply receives the report and decides what (if any) action - such as censure or training - is appropriate.

In that sense, the Standards Committee are more the judge, rather that the jury.

However, the explanation we were given did convey the outcome of the discussion, and the position that was being adopted by the police.

We expressed surprise at this view, but, given that Fylde was, at last, conducting an investigation, we waited to see its conclusions.

The reports of Fylde's investigations were published on 22 January 2015.

Fylde's investigation into the matter concluded that no breach of the Code of Conduct on the part of either member was found, and the matters were formally closed.

We struggled to agree with that conclusion, so we're going to look at what happened in a bit more detail.

Before 2012, there was a very different Standards regime in place. There was a national Standards Board and local Standards Boards within each Council.

Sadly, before 2012, either because of the framing of the legislation, or because of the inability of the National Committee to function properly, it resulted in myriads of 'councillor versus councillor' complaints being submitted, sometimes with political advantage as the motive.

The National Standards Board developed a backlog of several years of cases to hear. It was taking two years to have matters considered, and the whole system fell into disrepute.

One of the first acts of the incoming Coalition Government was to abolish the former Standards regime and to implement a new and more simple process. We fully supported that move.

From 2012 onward, Councils would investigate the comparatively minor matters of Personal interests and Prejudicial interests themselves (setting their own procedures) and they would have very limited powers of corrective action (chiefly censure or training of the individual concerned), and the Police would investigate failures concerning Disclosable Pecuniary Interests - which became a criminal offence.

There are proper detailed definitions, but the rough and dirty explanation is:

Personal Interests are typically where a councillor has an interest that does not involve payment or benefit. The declaration of a personal interest in a matter usually allows a councillor with such an interest to participate and vote in meetings once they have declared the interest. Typically this is where they are a member of some civic organisation that itself may be affected by a matter being discussed by councillors.

A Prejudicial Interest arises where a councillor may have an interest that is so significant that it could be thought to affect their judgement in decisions. In such cases the councillor, having declared a prejudicial interest, is usually required not to participate further in the meeting.

A worked example would be where, say, a village hall committee of which the Councillor is a member accepted a donation from Cuadrilla. There was no personal benefit to the Councillor in this, but the organisation of which they were part stood to gain. This interest is usually considered prejudicial and that requires the affected councillor not to participate in the meeting.

A real-life example of this came with Cllr John Singleton in respect of a grant that Cuadrilla made to Weeton Village Hall. Not only did he declare a Prejudicial Interest and leave the room whilst matters concerning Cuadrilla were being considered. He went further than he was required and resigned his place on the Shale Gas Working Group as soon as he knew the grant would be paid. That is exemplary probity and we have previously commended his actions in this matter. We regard his integrity in this as being outstanding.

But there is a third sort of interest.

A Disclosable Pecuniary Interest arises where a councillor receives a personal benefit that falls within one of a defined type. Typically this is where a payment or benefit is made to the Councillor, rather than to a group of which they are a member.

A respected Local Authority Law Firm describes it thus

"Where a member has a Disclosable Pecuniary Interest, it is a criminal offence to fail to register that interest, to fail to disclose it at a meeting unless it is already registered, or to participate on a relevant item of business, unless the member has a dispensation from the authority, or to take any action on the matter as a member of the Executive, other than to refer the matter to another executive member for determination.

The definition of a Disclosable Pecuniary Interest is significantly different from the former Prejudicial Interest definition:

It applies to interests of the member and their spouse or partner. This means that for registration, it is wider than the old requirements which applied only to interests of the member him/herself. But for disclosure and non-participation purposes it is significantly narrower than the old definition, as it omits reference to the member’s family or friends.

It is broader than the old definition of a prejudicial interest, in that it is a Disclosable Pecuniary Interest even if there is no likelihood that it might prejudice the member’s perception of the public interest. The Government has clearly taken the view that this element of the old Prejudicial Interest test would not stand up to scrutiny in the criminal courts, but it means that a decision which has only a minimal impact on a member’s property or employer can trigger a criminal offence.

It is also narrower in that it applies only to very defined categories of interest....."

These defined categories of interest require the Councillor to declare (for themselves or their partner):

  1. Details of any employment, office, trade, profession or vocation carried on for profit or gain.
  2. Details of any payment or provision of any other financial benefit (other than from the relevant authority) made or provided within the relevant period in respect of any expenses incurred by you in carrying out duties as a member, or towards your election expenses. (This includes any payment or financial benefit from a trade union within the meaning of the Trade Union and Labour Relations (Consolidation) Act 1992.
  3. Details of any contract which is made between the relevant person (or a body in which the relevant person has a beneficial interest) and the relevant authority under which goods or services are to be provided or works are to be executed; and which has not been fully discharged.
  4. Details of any beneficial interest in land which is within the area of the relevant authority.
  5. Details of any licence (alone or jointly with others) to occupy land in the area of the relevant authority for a month or longer.
  6. Details of any tenancy where (to your knowledge) the landlord is the relevant authority; and the tenant is a body in which the relevant person has a beneficial interest.
  7. Details of any beneficial interest in securities of a body where that body (to your knowledge) has a place of business or land in the area of the relevant authority; and either the total nominal value of the securities exceeds £25,000 or one hundredth of the total issued share capital of that body; or if that share capital of that body is of more than one class, the total nominal value of the shares of any one class in which the relevant person has a beneficial interest exceeds one hundredth of the total issued share capital of that class.

And in respect of these categories, Councillors are required to sign a declaration which says:

"The Localism Act 2011 created specific criminal offences in relation to the disclosure of pecuniary interests (Part 1 of this form). I understand it is a criminal offence:

  • to fail to register a Disclosable Pecuniary Interest (DPI) I am aware of within 28 days of my election or re-election;
  • to take part in the debate or vote at any meeting where I have a registered or unregistered Disclosable Pecuniary Interest;
  • to fail to declare at a meeting and/or to take part in the debate or vote, if I am aware I have a Disclosable Pecuniary Interest which is not yet registered or notified to the Monitoring Officer;
  • if I have declared an unregistered Disclosable Pecuniary Interest at a meeting, to fail to register that within 28 days of that declaration;
  • to provide false or misleading information in relation to any registration or to be reckless as to its accuracy;
  • to take any steps or further action on a matter in which I have a Disclosable Pecuniary Interest other than referring it elsewhere;

in each case without reasonable excuse and I recognise any such failure is a direct contravention of the Localism Act 2011 and a criminal offence and may be investigated by the police and referred to the Director of Public Prosecutions. I understand that upon conviction a Member or co-optee may be fined up to a maximum of £5,000."

Knowing the likely public interest in this matter, Fylde took the unusual step of publishing a full report of its investigation. Readers can follow these links to download a copy of the official reports for Cllr Fiddler and Cllr Threlfall.

From these published reports, we can see what the investigator considered and concluded.

The investigation was conducted by an 'external' investigator. (We believe it was someone from Blackpool Council who is also employed by Fylde Council as their Deputy Monitoring Officer).

We can understand that some readers might think an employee would have a vested interest in not biting one of the hands that feeds them, but officers at 'Monitoring Officer' level in a council are expected to be sufficiently independent for this not to be a problem.

The investigating officer's description of his investigation for each of the Councillors says "The Subject Member has been interviewed in connection with this investigation. A summary of the interview has been included and taken account of within this report, together with other documentary evidence which I was provided with by the Monitoring Officer (minutes of meetings, legal advice notes etc.)."

From this we can see that he spoke with the councillors and summarised what they told him for his report. He also looked at information provided by Fylde's Monitoring Officer.

He does not seem to have done any of what we would call 'original' investigating. We'll come back to this a bit later.

We'll look at this in detail shortly, but the headlines are as follows:

The investigator found "There is no evidence to show that Councillor [name] would have made a connection between Cuadrilla and his easement payment".

He said that "an interest could only be reasonably expected to be declared when the member is aware or should be aware of the interest". (We'll come back to this as well).

He concluded "that Councillor [name] has not knowingly failed to declare any interest prior to the Council meeting on 28th July 2014".

He also concluded that "When the advice note from Miss Morrison was issued in July 2014, he [the councillor] sought officer advice and also acted in accordance with the note itself."

He further suggested that in his view, in order to comply with Fylde's Monitoring Officer's advice note, the councillors had only been obliged to declare a personal interest. "However, Councillor [name] has stated that in accordance with the wishes of the Cabinet to be open and transparent and the influential position he was in, then he had declared a personal and prejudicial interest".

We think that's puff and baloney. What you declare is based on factual circumstances, not on what Fylde's Cabinet thinks. They have no locus in this matter whatsoever. It is a personal decision of the member concerned.

But what the investigator did *not* address was the matter of a Disclosable Pecuniary Interest.

It is simply not referred to in his report at all, and he does not even appear to have investigated the possibility that there may have been a failure to comply with the law. Again, we will return to this matter shortly.

We find four main areas:

  • the extent of the investigations undertaken by the investigator (ie whether the investigation was sufficiently robust and fit for purpose);
  • whether the councillors were - or should to have been aware - that the easement payment they received was connected to Cuadrilla and its receipt created an interest;
  • thirdly, whether receipt of the payment created a Disclosable Pecuniary Interest which both Councillors failed to declare or treat properly; and,
  • finally, whether the explanation that Fylde's Chief Executive gave to the Police (which persuaded the police there was no wrongdoing) was a reliable and accurate assessment of the actual situation.

We'll now look at each of these in turn.

We noted earlier that the investigator spoke with the councillors and summarised what they told him. He also looked at information provided by Fylde's Monitoring Officer.

Now - if you're an investigator, and you ask someone if they committed a burglary, it's quite likely you'll be told they didn't (otherwise arrest and conviction are likely to follow).

So it usually requires a robust investigation to establish the facts, and not simply take the word of the suspected burglar. The investigation might be expected to look at other evidence to establish these facts - were there fingerprints? Was there any forensic evidence? Was there any CCTV?, and so on.

In this instance, the investigator seems to have been prepared to take the Councillors' word that they didn't know what they ought to have known.

Furthermore, his examination of documentary evidence (whilst it is unspecified in detail) suggests he only looked at documents that Fylde's Monitoring officer gave him to look at ("the minutes of meetings and legal advice notes etc").

We know that Fylde has previous form in minimising its 'Reputational risk' in such matters.

Readers will remember our article 'Streetscene Whitewash' of September 2009, where we quoted from the (then) Chief Executive's report where an officer had "agreed to leave the Council's employment via a compromise agreement" (and with the benefit of an undisclosed severance package that had been agreed with the Leader of the Council). The Chief Executive went on to say this was felt to be "......the most pragmatic option which exposed the Council to the least amount of additional financial and reputational risk..."

That was the first Fylde Whitewash we reported and, as we said above, we wonder if this matter will turn out to be a second.

It is not clear what (if any) other evidence the investigator examined in order to ascertain there *was* no evidence to show that the councillors would (or 'ought reasonably to') have made a connection between Cuadrilla and their easement payment .

He might, for example, have asked Cuadrilla or their agents for copies of their correspondence / paperwork between those allowing land access.

He might have asked if Cuadrilla distributed flyers and literature, and about the scale and extent of such distribution.

He might have asked whether Cuadrilla took any newspaper advertising about the survey, or checked whether there were radio or TV interviews.

He might have looked at the agenda and minutes of the Freckleton Parish Council to see if there was mention of fracking (and more especially the geophysical survey) at Parish Council meetings which the relevant councillors attended.

He might have looked at the private files held by FBC to establish whether the Councillors concerned attended the site visit to Cuadrilla in spring 2011.

He might have asked what record Fylde had of the (non-public) meetings attended by the Councillors as part of their routine work (the Shale Gas Working Party for example), and the topics discussed at them. (Town Hall bureaucrats are wonderful at documenting what happens at these meetings. It's what they do).

There are probably other sources of information that could have been investigated as well.

But whatever it was he did look at, he does not appear to have investigated the press reports at the time - because we believe they show the overall duration of the survey, and that there was widespread public knowledge that it was taking place, and we think had he done so, he might have come to a different conclusion.

We keep copies of some of the press articles of matters important to Fylde. Readers can follow this link to see the list of pre April 2012 articles we have on the topic of Fracking.

This list is all about the introduction of fracking into Fylde before the date at which the payments were made to the two councillors.

It begins with the Gazette of 12 Aug 2010 'High Hopes for Fylde Gas Bid' (NB: Aug 2010 is a year and a half before Cuadrilla made the payment to Councillors.

High Hopes in Fylde Gas Bid

Then there are then a further 55 Gazette or Express articles during that 18 month period (which averages out at just slightly less than one article every week), before the last article prior to April 2012 - which was the Express' coverage on 29 Mar 2012 entitled 'Home Cover Fear Over Gas Drilling'

Home Cover Gas Fear

Readers might also like to note that, in addition to the mostly half or full-page page articles in the media during this18 month period, the coverage included a front page article in the Express of 23 Dec 2010 ('Gas Bid Sparks Concern').

Gas Bid Sparks Concern

It included a double page spread article in the Gazette of 24 Jan 2011 ('The Fylde's own Gold Rush').

The Fylde's Own Gold Rush

It also included a front page and combined 3 page feature in the Gazette of 22 Sep 2011 entitled 'Gas Riches or Pipe Dream',

Gas Riches or Pipe Dream?

and it included front page headlines in the Express of 23 Feb 2012 headlined 'Drill Sites Frenzy'

Drill Sites Frenzy


But most notable of all, the 18 month period included the Preese Hall earthquakes - which generated worldwide headlines, and were all over our TV screens and radios for weeks, let alone their exposure in the local printed media.

We thus find it difficult to understand that these two senior councillors - Cabinet Portfolio Holders no less - who undoubtedly understand the need to keep themselves informed of local current affairs, were not aware that Fracking was taking place in the area in April 2012, and that they had not heard of Cuadrilla.

But that said, the more central issue for the investigator's attention ought to have been whether the two councillors were aware - or whether they should have been aware - that the easement payment they received was connected to Cuadrilla.

This is important because it's just about possible to argue that - even if they couldn't reasonably claim to avoid knowing that fracking was taking place - they might still not have linked the geophysical survey they allowed on their land with Cuadrilla and its fracking activities. (And that's what they say happened).

Again, we have to say, we struggle to agree that this was the case, but it is something that the investigator should, in our opinion, have investigated in more detail, and taken into account. It does not appear that he did - or at least his report does not say that he did.

In addition to the press reports about the broader issue of Fracking, the following articles were specifically connected with publicising the geophysical survey (and these are just the ones we kept as paper copies).

There were also lots of letters from the public on the letters pages once Cuadrilla's geophysical survey cables started snaking all over the highways and byways of Fylde along grass verges, and across the roads so traffic had to slow down. We also recall seeing (but didn't keep) Cuadrilla's full or half page adverts for people who might want employment with them to help lay out the cables (or at least their adverts to show that local people were benefiting from employment with them).

The following instances come from the Gazette or the Express articles that we have. It's likely there was other information in these two publications, and probably in the Lancashire Evening Post as well.....

In February 2012 (two months before the councillors received the payments) under the headline "Uncovering Riches from the Ground" The Gazette's Elizabeth Broughton reported "A shale gas drilling company has unveiled plans to carry out a massive land survey as it bids to find riches below ground.

Vibrations and shot sounds could be heard across large swathes of rural Fylde as Cuadrilla Resources carries out a geo-physical survey in a bid to establish the best places to carry out their controversial fracking operations....."

The article went on to describe the process in some detail and gave quotes from several people. It concluded "The two month project is due to start at the end of March".

Uncovering Riches

On Wednesday 28 March 2012, (just four days before the April in which the Councillors received the payment) the Gazette's Elizabeth Broughton again reported the survey. In an article headed "Capital of Frack" she said "The next three months will see Cuadrilla's workers surveying the area using large vibrating trucks and small underground explosions in a bid to find out if it does have that potential." It noted that "The survey had begun to the north east of Singleton and will cover an area heading up to just south of Great Eccleston, across to the countryside south of Poulton and down through Lytham and St Annes to the Warton area"

Capital of Frack

On 29th March 2012, (again just before the payment) Gordon McCully of the LSA Express reported a public meeting arranged by local groups. Under the heading "Home Cover Fear Over gas Drilling" he reported "...shale gas company Cuadrilla has begun its in depth geophysical survey in Fylde which it hopes will establish whether to press ahead with commercial drilling...."

On April 5 2012, (the month the payment was made) The Gazette's Elizabeth Broughton reported that experts has said the controversial shale gas fracking can be 'managed' a year after the two earthquakes which dominated the news when they happened. Under the headline "Risks Manageable" she concluded "A survey is under way to establish the best sites on the Fylde for Cuadrilla to undertake commercial drilling..."

By 6th June 2012 there was so much public hiatus in Fylde that the survey was forced to stop. Under the headline "Bangs Force Halt To Tests", The Gazette's Elizabeth Broughton said "Alarmed residents have forced a temporary halt to a survey which has seen loud bangs shake the Fylde Coast. Cuadrilla Resources has been detonating charges underground in a bid to establish the best places to carry out controversial gas drilling technique fracking but had to stop following a flood of complaints from residents in Wesham." Cllr Linda Nulty is quoted as saying "Cuadrilla has done a good job putting leaflets out but I'm concerned about older people who don't understand what's happening"

Bangs force halt to tests

On 15 June 2012 Gazette reporter Carla George said "MP Calls For Action On Shaking Homes" and reported that Mark Menzies had demanded Cuadrilla reduce the impact of its geophysical surveying near residential areas. The report said "The company is currently detonating charges underground in a bid to establish the best places to carry out the controversial gas drilling technique, but had to stop following a flood of complaints from residents in Wesham" The article concluded "Their survey is expected to be completed in early July"

MP Calls for action

On 20 June 2012 Cuadrilla placed a half page "Public Notice Statement" explaining what was happening with the geophysical survey.

Cuadrilla advertisement

On 22 June 2012 Cuadrilla placed a similar half page advertisement in the Gazette.

From the above alone, we can know that the geophysical survey operated between 28th March 2012, and at least 22 June 2012 - a period of three months.

We can also know that there was repeated press coverage of the lead up to the survey, and of the survey itself.

For the reasons set out above via the newspapers, we find it difficult to agree with what Cllr Fiddler reportedly told the investigator.

Speaking of time at which Cllr Fiddler received the payment, the investigator's report says "At that time, the fracking debate had not started and Cuadrilla was not a name he was aware of."

We also find it inconceivable that these two senior councillors, portfolio holders no less, were not aware that a geophysical survey was taking place and that it was being operated by Cuadrilla.

We also cannot, by any stretch of our imagination, accept that the investigation of this matter has been robust and thorough. It may not even be described as being sufficient - unless it's scope was intentionally restricted by disregarding some aspects.

For example, the investigator said his report demonstrated "that an interest can only be reasonably expected to be declared when the member is aware or should be aware of the interest."

Justifying this stance, the investigator says he had regard to advice presented by Standards for England in 2007. He considers this to be relevant because the code of conduct for members agreed by the Council in 2012, is extremely similar to that in existence in 2007.

We disagree. That 2007 advice was from a body that had been discredited and abolished as one of the first acts of the new coalition Government.

Their official position (set out in 'Openness and Transparency on Personal Interests') says "Parliament has abolished the Standards Board regime and all the rules under it. It has done this because that centrally-imposed, bureaucratic regime had become a vehicle for petty, malicious and politically-motivated complaints against councillors. Rather than creating a culture of trust and openness between councillors and those they represent, it was damaging, without justification, the public’s confidence in local democratic governance."

Furthermore, Fylde's previous Codes of Conduct have been superseded. They are thus irrelevant - unless the investigator is trying to claim that Fylde's Code applicable at the time of the payment is the one that should be regarded, and there's no indication that is what he is trying to claim.

Fylde's current (last updated in April 2014) Code of Conduct does say "14.1 ....... where you have an interest ..... in any business of your authority and where you are aware or ought reasonably to be aware of the existence of that interest, and you attend a meeting of your authority at which the business is considered, you must disclose to that meeting the existence and nature of that interest at the commencement of that consideration, or when the interest becomes apparent."

*But*, that statement only appears in S14 of the Code - which addresses the "Disclosure of *Personal* Interests".

It is *not* found in section 15 "Non participation in cases of Personal (and Prejudicial) interests" - nor is it found in section 9 "Non participation in case of Disclosable Pecuniary Interest"

Readers will remember that the declaration made by both Councillors consisted of both personal *and* prejudicial interests.

So we believe their alleged ignorance should not be held to be a carte-blanche excuse for failing to make declarations between the easement payments received in April 2012, and their eventual declaration of personal and prejudicial interests on 28 July 2014

We think this partly because that excuse only appears under the 'Personal Interests' section of Fylde's Code of Conduct (and they declared a prejudicial interest).

Furthermore, even in a Personal Interest context, it requires a declaration of the interest to be made where you "ought reasonably to be aware of the existence of that interest" (as well as in those instances where you are actually aware).

We also believe it partly because the newspaper and TV coverage we have documented above, means we struggle to see how *any* civic leader in Fylde could reasonably say they were not aware of the existence of fracking, Cuadrilla, the geophysical survey, or their interest at the time these two councillors were paid the easement.

The third issue is whether receipt of the payment created a Disclosable Pecuniary Interest which

  • both Councillors have failed to declare and
  • which required them to withdraw from meetings.

In this matter the investigation report is silent.

By it's silence, the report subliminally invites us to believe that it's assumptions regarding the councillors' claim of not being aware of Cuadrilla or the geophysical survey at the time they were paid applies equally to the matter of Disclosable Pecuniary Interest.

We don't accept this insinuation at all

Nor do we believe that ignorance of the law has ever been an excuse for non-compliance.

The investigator's report has just one reference to a 'Disclosable Pecuniary Interest'. It reproduces the advice note which Miss Morrison circulated prior to the Full Council Meeting of 28 July 2014 which said:

'Below is paragraph 3.1 from the note which relates to where Cuadrilla has entered into arrangements with a number of landowners for permission to drill test bore holes and those landowners have received payment for those permissions.

“….. I have been advised that If you are one of those landowners, where those arrangements still exist or where the arrangements provide for an option or other legal mechanism in favour of Cuadrilla for future operations on the land, you have a disclosable pecuniary interest under paragraphs (d) or (e) and should take no part in the consideration or voting on any matters concerning shale gas drilling. If any such arrangement with Cuadrilla has ended then paragraphs (d) and (e) will not apply but you will need to consider your position under paragraphs 14(2) and 15(1) of the Code if there is a possibility that Cuadrilla may make further arrangements with you in the future or you may wish them to. That situation will also apply to family members or persons with whom you have a close association.”'

We note that this advice refers to the drilling of test boreholes, and not to the laying of cables or the installation of seismic monitoring equipment which is what Cuadrilla were paying the easement to the councillors for.

Whilst there appear to be similarities, we're not sure how applicable it is to the circumstances of an easement payment for use of the land.

But that aside for the moment, readers will remember that (d) and (e) in the Members Register of Interests were a requirement to declare:

(d) Details of any beneficial interest in land which is within the area of the relevant authority.

(e) Details of any licence (alone or jointly with others) to occupy land in the area of the relevant authority for a month or longer.

So the essential and central questions here must be:

1). Did giving licence to Cuadrilla to occupy their land create a Disclosable Pecuniary Interest - as defined by the Localism Act 2011 and refined by the Council's own Code of Conduct and the Declarations in the Members Register - for Cllr Fiddler and for Cllr Threlfall ?

2). If a DPI was created by their action, did either Councillor cause it to be added to their personal Register of Members Interests? Did they subsequently refrain from participation in any discussion or vote on a matter? And (as they were both Executive Members who could discharge a function acting alone), did they fail to notify the Monitoring Officer within 28 days of their interest.

Taking those in reverse order, both councillors have previously declared an interest in farmland on their register of interests. Whether that is the same land that was used for the survey we do not know. It may well be. If it was, then as long as the Cuadrilla payment did not create a separate interest which should have been declared, the requirement to register the interest in land may be satisfied.

If it was not, then the requirement is not satisfied, because 28 days after the Council meeting of 28th August no addition had been made to either Councillor's personal register.

So if the Cuadrilla payment created an unregistered DPI in land, this almost certainly constitutes one or more criminal offences under the Localism Act - as set out earlier in this article.

However, irrespective of the matter of registration, there is also the matter of their taking part in meetings concerning Cuadrilla between April 2012 (where they did not disclose any interests), and the Council meeting July 2014 (at which they did declare a personal and a prejudicial interest, but not a disclosable pecuniary interest).

Taking part in meetings where you have a Disclosable Pecuniary Interest is also a criminal offence. Fylde's declaration form actually says it is a criminal offence ...."to take part in the debate or vote at any meeting where I have a registered or unregistered Disclosable Pecuniary Interest;"

So that leaves the question: did receipt of the payment create a Disclosable Pecuniary Interest?

As we said, the Council's investigation has simply not addressed this matter at all.

This omission may be simply incompetent investigation, or it may be because if the matter *was* to be addressed, and the councillors were found to be wanting, it would be very difficult for Fylde to 'minimise its reputational risk'. Or it may be because the 'advice' issued by Fylde's Monitoring Officer appears to exclude one-off payments, and they think the DPI legislation doesn't apply to this payment at all.

We can see that the first two of these might be the case, but we'd rather not contemplate the implications of either.

So we'll focus on the third - 'it was a one-off, so it doesn't count'

This argument has more legs because we've since been told that Fylde believes the advice note circulated by their Monitoring Officer about borehole use 'summarised' the circumstances in which a disclosable pecuniary interest would apply and, as there was no evidence to support an option for future use, or any other legal mechanism in favour of Cuadrilla for future operations on the land belonging to the councillors in question, no disclosable pecuniary interest arose.

We further understand that Fylde believe that if there had been such an option (or some other legal mechanism in place), then they think a disclosable pecuniary interest would have arisen.

This brings us to the broad question of whether the interest in land they originally listed in their 'Declaration of Interests' meant that they had 'already' declared their interest (before the Cuadrilla payment) and thus may have committed an offence by taking part in the meetings regarding Cuadrilla between April 2012 and July 2014.

It also brings us to what Fylde believe is the central point of the DPI matter: do one-off payments for the use of land count as Disclosable Pecuniary Interests?

We think the advice that was circulated by Miss Morrison seems to conflict with Fylde's Code of Conduct and its Register of Interests which requires a declaration in respect of '*any* beneficial interest in land .... or any licence (alone or jointly with others) to occupy land.....for a month or longer'. (That's our emphasis)

That declaration is effectively the contract for disclosure between the member and the public.

It says nothing about such use having to be repetitive or ongoing.

And if you think about it, to do so would be pretty illogical.

To illustrate why, we'll set out a hypothetical case where, in the hope of helping to persuade a councillor to vote in a certain way on some matter, a business paid them £200,000 to be able to use part of their farm field for a family picnic one Sunday.

That wouldn't be an ongoing use, nor would it have future benefits.

So according to Fylde's advice note, that payment would not appear to constitute a Disclosable Pecuniary Interest.

Readers will be able to see how we're struggling with that concept.

We think any right-minded person could not fail to consider such a payment constitutes a Disclosable Pecuniary Interest which the member ought to register as a benefit from their land under (d) or (e) depending on whether they own the land outright or hold the land on licence, and that they should not take part in meetings affecting the business concerned.

Failure to register a DPI is undoubtedly a criminal offence.

It is equally a criminal offence to "participate in any discussion or vote on a matter in which the councillor has a disclosable pecuniary interest."

Furthermore, as an executive member discharging a function acting alone, and having a disclosable pecuniary interest in such a matter, it is also a criminal offence to fail to notify the Monitoring Officer within 28 days of the interest.

But Fylde has decided that in this case, there was no disclosable pecuniary interest.

It has exonerated the councillors concerned, and convinced the police there was no wrongdoing.

We leave readers to form their own view on this matter.

Probably the first point to make here is that Fylde itself decided that there was no need to notify the police of this matter, (and it currently does not intend to notify them). This is probably because Fylde took the view that the payment did not create a Disclosable Pecuniary Interest, and they would only consider notifying the police if an undeclared DPI had arisen.

So the involvement of the police came about because of approaches made to them by the public.

We know it reached a very senior level in the their Western Division, and it is to their credit that, having considered the information, they took the matter up at the highest level in Fylde.

That leaves us wondering whether the explanation that Fylde's Chief Executive gave to the Police (which persuaded them there was no wrongdoing) was a reliable and accurate assessment of the situation.

It may be that some people would think that, in the great scheme of things, this matter is about as important as a fleabite, and that a payment allegedly in the order of £150 is not worth getting hot under the collar about. We can see that point of view being taken by some.

For us though, it's about the principle, and about trust in the probity of our public officials. It's not about the scale.

We're put in mind of the opening paragraph of the Government's publication 'Openness and transparency on personal interests' - which is concerned about practices that are "damaging, without justification, the public’s confidence in local democratic governance."

So we believe that, if there had been a criminal offence, it should be prosecuted as any other.

It is the sanction applied (if any) that should be related to the scale of the transgression.

So the fourth question must be: were the police given a reliable and accurate assessment of the situation?

We believe we have illustrated that Fylde's investigation into this matter was not as robust as it should have been, in that it has relied on the version of events given by those being investigated, (together with some documentation supplied by an FBC employee). The newspaper cuttings alone (in our view) show a very different story to the one given by the Councillors. There were undoubtedly other sources of information that could have been consulted - but were apparently not.

It follows that, if our belief is right, and the investigation was not as robust as it should have been, then the conclusions which rest upon that investigation become unreliable.

For most of the investigations Fylde undertakes, doing a 'weak' investigation is not going to be that much of a problem. That's because Fylde's own internal standards processes are a bit like toytown. There are no really serious consequences to flow from whatever FBC does. But where that approach falls down is where there is a potential Disclosable Pecuniary Interest that is, or ought to be, investigated at the time. An investigation that is not robust in these circumstances simply does not cut the mustard.

Equally, using the excuse that 'ignorance is bliss' might be OK for Fylde's internal investigations (even though we don't think it is), but it's certainly not appropriate for a potential criminal investigation.

We also know that Fylde's (formally adopted) aim is to avoid undertaking formal investigations. This quote is from the 30th July 2012 Council report that ushered in the new standards regime at Fylde.. "Discussions with Group Leaders have focused on the new framework securing mediated outcomes of complaints wherever possible, rather than going through a formal process. It should also be noted that the framework for dealing with complaints which had been previously heavily prescribed, now benefits from a slicker and more streamlined approach."

So Fylde always aims to avoid conducting a formal investigation.

If the investigator's conclusions were based on an inadequate investigation, and Fylde has the aim of avoiding formal investigations itself, it would be easy to see how easily the police might have been - however unintentionally - provided with an unreliable and inaccurate assessment of the real situation.

Local Government law is a highly specialised area, and this law was new in 2012, so you can imagine that, if you're the police, and more used to dealing with drug-dealers, or housebreakers or whatever, you're likely to rely quite heavily on what the Chief Executive of a Council says in respect of whether there was "wrongdoing." You'd expect to be able to trust what he tells you.

Again, we think we're going to have to leave it for our readers to judge whether they think the police were provided with a reliable and accurate assessment of the situation in this matter.

That said, if anything further was to happen (and we don't think that's likely, because Fylde has said as far as they are concerned, nothing further *will* happen) there is a need for some urgency because there is a 3 year prosecution limitation prescribed in the Localism Act (Chapter 7, S34 (7)) which says

"But no such proceedings may be brought more than three years-

  • (a) after the commission of the offence, or
  • (b) in the case of a continuous contravention, after the last date on which the offence was committed."

If a criminal offence was committed, it will probably be three years ago this April. (although we're less sure about the interpretation and implications of 'continuous contravention')

So it could be that once we get to April, the matter becomes academic anyway.

The Localism Act has another provision though.

Chapter 7 requires a Council's 'Code of Conduct' to be, "when viewed as a whole, consistent with the following ten principles.

  • Selflessness – members should serve only the public interest and should never improperly confer an advantage or disadvantage on any person.
  • Honesty and integrity – members should not place themselves in situations where their honesty and integrity may be questioned, should not behave improperly, and should on all occasions avoid the appearance of such behaviour.
  • Objectivity – members should make decisions on merit, including when making appointments, awarding contracts, or recommending individuals for rewards or benefits.
  • Accountability – members should be accountable to the public for their actions and the manner in which they carry out their responsibilities, and should co-operate fully and honestly with any scrutiny appropriate to their particular office.
  • Openness – members should be as open as possible about their actions and those of their authority, and should be prepared to give reasons for those actions.
  • Personal judgement – members may take account of the views of others, including their political groups, but should reach their own conclusions on the issues before them and act in accordance with those conclusions.
  • Respect for others – members should promote equality by not discriminating unlawfully against any person, and by treating people with respect, regardless of their race, age, religion, gender, sexual orientation or disability. They should respect the impartiality and integrity of the authority’s statutory officers and its other employees.
  • Duty to uphold the law – members should uphold the law and, on all occasions, act in accordance with the trust that the public is entitled to place in them.
  • Stewardship – members should do whatever they are able to do to ensure that their authorities use their resources prudently, and in accordance with the law.
  • Leadership – members should promote and support these principles by leadership, and by example, and should act in a way that secures or preserves public confidence.

We leave our readers to judge the extent to which they think Fylde has met this requirement, or whether it has simply produced another Whitewash.

We suspect some of our readers might now better understand how influential people in Rochdale and elsewhere might not have been brought to book at the time for things they did that have since been shown to be improper.

Dated:  13 March 2015


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