Carmarthenshire county council has announced that it intends to publish the legal advice it received from two of the three barristers it consulted in relation to the executive board’s decision to indemnify chief executive Mark James in his libel court case with Llanwrda blogger Jacqui Thompson.
A spokesman for the authority said this morning (Wednesday, February 5) that advice from James Goudie QC – given in 2008 - and Tim Kerr QC – received after the court case and in the wake of concerns raised by the Wales Audit Office (WAO) - “will be circulated to councillors and will be published on the council website”.
However, the council does not appear to have any plans to make public – or share with councillors – the advice presented by Adam Speker, the barrister who represented Mr James during the case.
According to the spokesman, Mr Speker gave “a verbal presentation” to the council’s executive board – which made the decision to use public funds to cover the costs of Mr James’ libel counterclaim on the grounds that the case was “exceptional”.
According to the spokesman, Mr Speker gave his advice “prior to the executive board taking its decision to indemnify in 2012”.
This claim contradicts a January 2013 email to the WAO from the council’s head of administration and law Linda Rees-Jones which stated that the executive board had not sought external legal advice on the legality of the indemnity.
She wrote: “Obviously I made [the executive board] aware of WAO's informal stance on [indemnity legislation] as set out in your e-mail and the fact that you'd urged us to take an independent legal advice on whether the circumstances were "exceptional".
“However, they considered that they had sufficient knowledge of this blogger and enough information to be able to take a view as to whether these were "exceptional" circumstances or not.”
The WAO has stated that the decision was “unlawful” due to the terms set out in the Welsh Assembly Government’s Articles 6(3) of the Local Authorities (Indemnities for Members and Officers) (Wales) 2006 Order.
The 2006 Order states that a local authority cannot indemnify – use tax-payers’ money to cover the costs - when an individual officer makes a claim or counterclaim for defamation.
However, the council has claimed that it does have such powers under Section 111 of the Local Government Act 1972, which permits the granting of an indemnity in exceptional circumstances.
In the statement, the council states: “Both QCs [Mr Goudie and Mr Kerr] consulted agreed that the executive board acted within its powers and within the law.
“The auditor argues that a 2006 Order states the council is not authorised by statute to grant an indemnity in respect of making a claim or counterclaim for defamation.
“The council, however, argues that the power to grant the indemnity was given under section 111 of the 1972 act.
“The auditor believed the 2006 order replaced the 1972 act, but two QCs advised the council that it did not.”
In the statement, the council confirmed that Mr Goudie was consulted in 2008 – before the events which led Mr James and Mrs Thompson to the High Court.
“He concluded that whilst the powers should only be used in exceptional circumstances, the 2006 Order was in addition to, and did not restrict, the existing powers under the 1972 Act,” said the spokesman.
“This view was reinforced some months ago by Tim Kerr QC who was consulted by the council following the Wales Audit Office investigation.
“He gave a detailed view of the case and said he considered that the executive board’s decision to grant the indemnity was lawful.”
As part of the council statement, council leader Kevin Madge said: “As I have said previously we are now in a position to share all the information and advice we received with all councillors and with the public.
“The legal advice we obtained from two top QCs is part of this process which we hope will assist people in being better informed regarding these issues.”