Sunday, 27 May 2012

The #QuackCWaC Council Constitution fiasco

Updates added below original blog post.

UPDATED 30th May 2012: 
FOI submitted in an attempt to clarify the situation.

UPDATED 30th May 2012: My reply to the comment from the Chair of Constitution working Group.

UPDATED 27th May 2012: Comment from the Chair of Constitution Working Group.

On May 24th, 2012 there was an article in the Chester Chronicle ‘Strange errors’ in Cheshire West and Chester Council constitution

The article states 'But in the event, Tory Cllr Gareth Anderson, a member of the cross-party constitutional working group, postponed a decision on the item after explaining the errors had been picked up by Labour Cllr Ben Powell and members of the public.' [my emphasis]

I was one of those members of the public and have now decided to blog my story regarding the constitution fiasco.

Firstly it is important to realise that a constitution is probably the most important document ever created by any organisation because it lays down the fundamental rules and principles that prescribes their nature, functions, and limits. The council states that their new constitution departs from the format of the outdated Department of Communities and Local Government (DCLG) model constitution and adopts a bespoke style unique to CWAC [My emphasis].

They also state that in order to make the document more focused and easier to use and understand, everything not considered to be strictly necessary has been stripped out. [My emphasis]

My involvement started when I first read a copy of the review of constitution document which was going to be put before the full council on 26th April 2012 for approval.The said constitution included 3 contentious items which concerned a number of people, including myself.
  • No cameras, tape recorders or any other type of recording equipment are permitted to be used/operated while a meeting is in progress other than those operated by the Council.
  • The Leader can be removed from office by a resolution of the Council  supported by not less than two thirds of the Council.
  • Persons wishing to speak or ask a question are required to give notice to the Head of Legal and Democratic Services at least 3 days before the meeting in question. 
If you view the background to the constitution review you will note that the constitution Working Group had met on 29 February 2012 to consider a revised Constitution document. It then went to the  Audit and Governance Committee on the 6th March 2012. After that a formal decision was published on the 20th March 2012. This includes the following decision
(1)  the Head of Legal and Democratic Services be authorised to finalise the Constitution in consultation with members of the Constitution Working Group and, subject to unanimous agreement and consultation with all Borough Councillors, submit the final document to the next meeting of Council for approval; and... [my emphasis]
However, many councillors, including a member of the constitution Working Party stated they were unaware of the contentious additions to the final document [constitution] until it was brought to their attention just hours before the council meeting on the 26th April 2012.

That in itself raises some interesting questions,
  • If the final document [constitution] was subject to unanimous agreement and consultation with all Borough Councillors, why were so many councillors unaware of what it contained?
  • If the Head of Legal and Democratic Service was authorised to finalise the consultation with members of the Constitution Working Group on the 20th March 2012, how could any member of that Working Group act surprised when the three contentious additions were later pointed out to them? 
  • Particularly since the said contentious additions were also in the version produced at 4.04pm on the 29th February 2012. Just prior to the Working Group meeting of the same date. In addition this is the version that went to the Audit and Governance Committee on 6 March 2012.
  • If the final document [consultation] had been unanimously agreed with all councillors why did legal and democratic staff feel the need to organise a last minute enquiry desk to allow councillors to ask questions regarding the constitution just minutes before the council meeting? What was supposed to be presented to the council for approval was, the final document not some back of a fag packet draft 'living document' which included a number contentious additions.
  • They also claim in appendix A that the draft has been checked by a number of different Officers across a full range of expertise in Legal and Democratic Services to ensure that the new draft complies with legal requirements. During that process some provisions required by law or good practice were discovered to be missing so have been added, but officers have taken great care to ensure that operative effect of the existing constitution has not been changed and that the new constitution accurately reflects how the Council currently operates. [My emphasis]. If that was the case why weren't the contentious additions spotted and removed during that process? Unless of course they considered the three items to be good practice and added them to the initial draft. 'During that process some provisions required by law or good practice were discovered to be missing so have been added.' [My emphasis]
An error in drafting was one of many excuses given for the contentious additions being included in the final document, however, that and the other excuses given so far, don't hold up to close scrutiny.
  • If you have followed what's been going on in council meetings over the last few months you will note that the three contentious additions to the constitution are connected. They would block any person confronting the leader, they would stop people having a recording of such a event and they would make it more difficult to remove the leader. Here is one example of what I believe the additions were intended to put a stop to but weren't introduced in time to do so.
  • The constitution, as I said earlier, is a very important and legal document. Not one to be cobbled together from a number of other constitutions (another excuse given for the errors additions), in any event how could they argue it was a document bespoke to them if it was just plagiarised from other constitutions. 
  • I just don't understand how those involved in producing the final document can argue that they didn't know about the contentious additions (errors as they now prefer to call them), before Cllr Ben Powell and members of the public highlighted them. 
  • Another excuse given was that it was a living document, however, whilst that may have been true when the constitution Working Group met (29th February 2012) what was supposed to be presented to the council on the 26th April 2012 was the final document. Please refer to the  decision highlighted above.
  • My investigations so far show that the contentious additions were also in the document produced just prior to the Working Group meeting on the 29th February 2012. So that's nearly 2 months during which not one of those involved in producing the final document apparently spotted the contentious additions. Additions which others spotted within minutes of reading the document.
What would have happened if the contentious additions hadn't been noticed by others? No doubt the full council would have nodded through the constitution and the council would now be able to enforce all of them.

In addition, if a number of council members and staff can be so lackadaisical when it comes to producing such a key document, what other things have slipped through the net on their watch?

It shouldn't be left to the odd conscientious councillor and a few members of the public to proof read and scrutinise council produced final documents to identify irregularities. Particularly a document as important as their own constitution.

What would help clarify the situation is if the complete document change history and timeline was presented as a public report. Together with a list of the other constitutions, at least those which include the aforesaid additions, on which they suggest they based their bespoke constitution.

However, until that happens I can only draw my conclusions based on the evidence I have seen so far. In my opinion it looks suspiciously like the someone in the council tried to sneak through the additions under the radar and when caught out, in came the usual damage limitation, spin and bullshit. Which appears to have been swallowed hook line and sinker by some.

UPDATE 27th May 2012: A comment [see comments below] to this article has been submitted by the Chair of the constitution Working Group with the url of his response. To make it easier for people to access I have include this click-able link to save having to copy and paste the url supplied. I will of course be responding in full as soon as I have time.

Whilst I admire Gareth for trying to defend the constitution fiasco, I for one think what happened is indefensible and worse still was wholly avoidable. My full response will be posted here in a few days.

UPDATE 30th May 2012: As promised my reply to Gareth's comments on this post. To make it easier to follow, and save switching between documents, I have inserted my reply into his comment which I reproduce below. Gareth's in black mine in blue. His comments were copied immediately they were published and as such will not include any later edits or additions. Please visit his site for the current version.

Despite us discussing this several times, you have missed out some very important points here which make some of your accusations moribund.

Firstly we haven't discussed this several times as you wrongly state, all we did was exchanged a few tweets about the issue. Neither do I accept that I have missed any important points, on the contrary I think it is you who has missed the point. Furthermore, all the points I raise in my blog post are still valid because you have, as yet, provided no evidence to support your version of what may have happened. 

With all due respect, you may have to accept whatever you are told by council officers and other councillors without validation but I don't. All you have supplied so far is one explanation of what may have taken place with no supporting evidence. 

The Constitution Working Group, which I chair, has 5 members, 3 Conservatives and 2 Labour, including the Leader of the Labour Group (not a person known to want to fortify the position of the Leader of the Conservative Group).

It has already been established that none of the Working Group were aware of the contentious additions. Therefore, your point about the party political make up of the Working Group irrelevant.

We have been working on different aspects of the constitution for the last few years and before that I was one of a handful of councillors from the council’s shadow-phase on 08-9, who were working to make the council as open as possible, including webcasting, giving guaranteed public speaking and question time at meetings, ensuring that the right for councillors not on a given committee could speak (including at Executive), giving public petitions the right to force Scrutiny reviews and/or debates in Full Council, and more besides. For example I persuaded members to trial a “Questions Without Notice” in Full Council. However, written questions were so long-winded (as were answers) we never got round to actually trying them without notice and it was abandoned. I also proposed and garnered sup[port [sic] from the Working Group that we should hold 2-3 MORE meetings of full council each year , however outside the working group this was not so popular and did not find enough support to go ahead.

The above points are wholly irrelevant to the issue at hand. The issue has nothing to do with what you or others may or may not have wanted but what was added without your knowledge. No one is suggesting you were in favour of the additions. 

Every single one of the pieces of work carried out by the Working Group has been designed to open the council at all levels, and make both the structures and the documentation MORE accessible to all. As a result of this work, all 5 of us were very familiar with the contents of the constitution.

The above statement, that you were all very familiar with the contents of the constitution contradicts your later suggestion that you didn't know about the three contentious additions until they were pointed out to you. 

This particular pice [sic] of work which began late last year was designed to reformat the constitution so that it could be more easily accessed. We aimed to reorder the contents into sections that would draw relevant parts together so that rather than people having to extract sections from across a 400+ pages document, they could go straight to the relevant part. One of our requirements as a Working Group was that as part of this process there should be no alterations to the content or meaning of any of the constitution. We were familiar with the content and would indeed wish to continue to look at, alter and improve it in future, but that these two things should not be combined, precisely because it would be more difficult for us to fairly consider constitutional changes at the same time as reformatting it.
As a result of this, we were not looking for any changes to the content or legal implications of the constitution as our work was on reordering and occasional linguistic simplification. We had the lofty hopes that some parts of the new format constitution should aim towards a “Plain English” style.

Whilst the above excuses the Working Group for not spotting the three contentious additions it does nothing to explain how they actually ended up in the final document. In addition, one would have thought as chair of the Working Group, you would be extremely concerned that these three contentious additions were inserted under your nose and against your orders and carried to a full investigation. An investigation to identify who inserted them, when they inserted them, why they inserted them and then taken steps to ensure nothing like this happened again. 

To achieve these aims, a small team of officers, with one legal officer leading and doing most of the work, looked for examples of best practice and different models that are available including from the DCLG. The working group had agreed the new framework/layout already so working between our existing constitution, this new framework and these different sources, began to merge and then reorder them to meet our framework goal. Sections were sent between officers for checking that the legal requirements were met in the new one and continuous alterations were made.

If that is the case then there will be an audit trail of changes which will make it very easy to pin down when the contentious additions were inserted, who inserted them and why.

Throughout this time the Working Group’s focus remained on what our goal had been, which was to ensure that the reformatting was following our agreed objectives. It was. We also re-enforced the point that content should not be changed beyond helpful linguistic clarity, and this was agreed by the officers involved. [My emphasis]

From the above statement it is clear that the officers involved were at fault.

In the resultant 442 pages of the finalised draft there were indeed 3 elements which you mention that were different from the current constitution, and, therefore, outside the scope of the piece of work we were engaged with, and which should not have happened. But let me emphasise that: 3 elements out of 442 pages of constitution (which had been created in the process outlined above) were inaccurate and unacceptable. They should not have been changed from the original.

The point is it did happen, the fear is that is has happened before with other documents and will continue to happen in the future because no one appears keen to actually get to the bottom of what actually went on and take steps to ensure it does't happen again and hasn't happened in the past.

In terms of your fourth bullet point (“interesting questions”), I had arranged with staff from Legal and Democratic Services to hold several consultation events with councillors. members were emailed several times between February and April informing them that they could drop in and speak to officers involved at any time about the reformatting of the constitution, but that there were also certain times they would make sure they were available for such briefings. Likewise the enquiry desk pre-council in April was one of these sessions and been planned and members informed of its presence well in advance.

The Head of Legal and Democratic Services was authorised to finalise the Constitution in consultation with members of the Constitution Working Group and, subject to unanimous agreement and consultation with all Borough Councillors, submit the final document to the next meeting of Council for approval. 

If that was done then there should be documentary evidence proving when each councillor agreed to the final document [constitution] before it was submitted to the council meeting.

I don't accept your suggestion that the enquiry desk pre-council in April had been planned and members informed of its presence well in advance.  From the information I have it was organised at the last minute as a direct consequence of the three contentious additions becoming public knowledge. 

Once the particular issues were brought to light, members were emailed again at my request to inform them that we had had specific issues raised with us on certain parts of the draft new version and that the desk would be there to answer these prior to full council. In my discussions with officers it became clear that they were disappointed to to have missed these 3 elements as were all 5 members of the working group and other councillors. As you correctly point out, all 75 of us had many opportunities to comment on, examine and raise issues with regard to the new constitution BUT these were all in the context of the document being reformatted and NOT re-written. Cllr Powell himself rightly decided that as he was not familiar with the original constitution he should take a more detailed look at the new one in the 24 hours prior to full council and he was amongst the first to raise these issues to which i responded the moment I saw his concerns.

Firstly it wasn't a draft new version which was supposed to be submitted to council is was supposed to be the final version. I accept that you responded as soon as the three contentious additions were brought to your attention. However, the fear is that if they hadn't been brought to your attention the dodgy constitution would have been adopted at the council meeting.

Initially I felt that making amendments to these 3 specific elements at Full Council would be the best way to offer reassurance that there was no intention or desire on behalf of the Working Group to make any of these changes and, in fact our work, and my own longer-term beliefs and work on constitutional issues, had led in precisely the opposite direction to these 3 elements.

However, after some thought during the day we felt that we should give the new constitution a considerably more thorough examination because clearly the drafting process had created changes well beyond what we had requested, hoped for and intended, and that we should make sure there were no further examples of this anywhere in the document prior to seeking approval from Full Council.

If there had been some partisan plot to make specific changes then the Conservative Group would have been able to push the constitution through full council that night using our majority. We did not. In fact when I explained to colleagues what the issues were they were totally supportive of my proposal that we pull it from the agenda so that we could remove those 3 mistakes and ensure there were no more. Not one single person suggested otherwise. Not one.

Whilst it is true that the majority party could have pushed it through if they had wanted, it would have been political suicide to actually do so. 

As long as the three contentious additions remained under the radar there was no problem for anyone voting in favour of the new constitution. After it was adopted, if and when they surfaced the blame would fall squarely on the Working Party and you as the chair you would have been the fall guy.

However, it didn't remain under the radar and councillors would have had to vote openly in favour of adopting the new constitution with the three contentious additions. In light of the advice to local government from the Department for Communities and Local Government and recent events in Cheshire West I doubt the majority of councillors, especially those in marginal seats. would have  openly voted in favour of the new constitution.

Furthermore, at that time no one knew if any other contentious addition would surface so you had no real alternative but to stop the constitution being voted on.

It would also be ludicrous to suggest that the opposition, who have been involved with this process throughout, would have supported or allowed such things through at any stage, least of all allowed them to get to the day of Full Council itself. I think it is also fair to say that not one of my colleagues on the council, including those in the Labour Group who have any experience of me, would suggest that I personally would support such things.

I know you would not support the three contentious additions, that is not at issue. The issue is that you, and no one else apparently knew, they had been inserted because the three contentious additions were slipped in under the radar.

I can also say that the officers involved were embarrassed that they too had not realised these (and any further mistakes we find) had got into the draft. I have worked closely with these officers fro [sic] several years and I believe that in the large amont [sic] of work they have done on this over the preceding months, in as collaborative a way as possible, it would not have been hard for a small number of errors to enter the draft. And as none of us were looking for content changes then it is not beyond the realms of imagination that those of us very familiar with the content were not focussing on something that was not supposed to change.

Sorry to keep bringing this up but it wasn't a draft it was the final document [constitution] which was supposed to be presented to the council meeting.

I accept that errors can enter a draft but don't accept that three contentious additions appearing in the final document can be explained away as a simple error.

They must have come from somewhere, either someone wrote them or someone plagiarised them from other council constitutions. If the latter is true then it would be easy to remove all doubt by openly admitting which council constitutions they came from. I have looked at quite a few council constitutions in my time and haven't yet found one that contains those three contentious additions, therefore, without any evidence they previously existed one can only conclude that someone in Cheshire West and Chester Council actually wrote them and that rules out error as an excuse for them ending up in the final document.

In the final analysis, we councillors are the people responsible for the actions we take and propose. The 5 of us on the cross-party working group should have spotted these changes, but we did not for the reasons outlined above. I am very grateful for Cllr Powell and others outside the council who did notice them and the moment they were raised I took action in response. Nothing was forced through, nothing was denied, nothing has been hidden. I attempted to give as full an explanation as I could at Full Council that night and the Working Group will be meeting again in a few weeks to rectify these problems.

As I stated earlier whilst you may have to accept what you are told by officers and other Councillors without validation I don't.  Therefore until I see an audit trail for the document versions and have seen copies of the council constitutions from which the three contentious additions came from I don't accept that nothing has been hidden.  

Whilst you have provided one possible explanation for what happened you haven't as yet supplied any evidence to support it. I too have a possible explanation for what happened, which is actually a better fit to the events than yours but until I have the evidence I wouldn't dream of suggesting it is anything other than one possible explanation of what happened.

I believe if you look at the way I and others have brought changes to the Borough Council’s constitution, we are one of the most open and accessible councils in the country, and far more so than our predecessors in Cheshire. Yes, we do not get everything right and it is not perfect, but we are always looking at how we can improve things, how we can make changes and try out new ideas. I am only sorry that this episode has caused some people to doubt the efficacy of the process. I only ask you to look at what we have done and tried so far and see what we do in future and judge us on that, because I believe you will come to a very different conclusion.

Sorry but I  can't accept that the council is one of the most open and accessible councils in the country. By way of example you can't even meet the 20 day deadline for responding to FOI requests on many occasions and when you do answers are often evasive. That isn't indicative of an open and accessible council. 

Unfortunately, this episode, as you call it, is only one in a long line of episodes which have brought the council into disrepute. 

Summary: Whilst you have provided one possible version of events I too have an even more plausible version of events, so until I see some evidence one way or another have no intention of accepting any any particular version of events which led to three contentious additions being included in the final document [constitution].

UPDATE 30th May 2012: FOI submitted in an attempt to identify where they obtained the three contentious constitution additions from. Assuming of course they didn't write them themselves, which I believe they did.
Background
Councillor Anderson is on record stating [in reference to the development of a replacement constitution] "To achieve these aims, a small team of officers, with one legal officer leading and doing most of the work, looked for examples of best practice and different models that are available including from the DCLG".
FOI request
I would like a full list [by council or other organisation] of all the other constitutions that were looked at during the above exercise.
FOOTNOTE: If you have any information relating to the 'strange errors' in the constitution please let me know.

To be continued when I have time and/or other evidence/information becomes available. 

2 comments:

  1. Hello Trevor,

    My response to this article is, apparently, too long to post here, so you can find it on my website here http://wp.me/pBNa0-hJ

    Gareth.

    ReplyDelete
  2. Thanks for taking the time to respond to this post and for driving so much new traffic to my blog. I have provided a link in the post to your response and will also be posting a comprehensive reply in the next few days.

    ReplyDelete

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