Straight answers required from North East Assembly Director

Stephen Barber
Director
North East Assembly / Association of North East Councils
Guildhall
Quayside
Newcastle Upon Tyne

16th March 2005

Stephen,
Perhaps it may be simpler to avoid a 'ping-pong' dialogue if the questions were answered as simply as possible. No doubt you will now be aware of the seriousness of where we are coming from and the fact that Superintendent Campell of Northumbria Police has been contacted by Bob Rayner, City of Sunderland's solicitor, to make him aware of the potential situation. The District Auditor and the Local Government Ombudsman will also need to be brought in.
We have always attempted to seek a straightforward resolution following clarification, but are acutely aware of the potential legal and financial consequences for your members and this is something we have tried to avoid at all costs. However, if we are forced to make the complaint official it will be out of our hands and the consequences could be catastrophic for many individuals who were unaware that they have been compromised, either through incompetence or neglect because of an ill-thought out political construct.
I would therefore appreciate a simple and direct response to the questions (A-I) in bold red type.
For ease of reference I have interspersed your original answers (in blue) to my original questions (in black).
Let's hope we don't end up with a rainbow!
Yours sincerely,
Neil Herron

Neil,

My comments on your questions are as follows;

1. Can you confirm whether ANEC is registered as an employer under Section 122 of the Trade Union and Labour Relations (Consolidation) Act 1992? If you are not, can you please explain why not?
S.B. (1) As I understand it, section 122 relates to employers associations, whose principal purpose relates to the, "regulation of relations between employers and workers or trade unions". Can you clarify - are you maintaining that the Association falls into this category?
Some assemblies have registered or attempted to include themselves within a 'local government' employers framework
A. The question was 'have you ( ANEC or NEA or both ) registered?' Yes or No?
Section 127 of the same act would have provided possible protection for an 'unincorporated association,' and perhaps does so for in the case of Local Authority appointees to bodies which are 'public bodies.'
It states,
127.—(1) An employers' association may be either a body corporate or an unincorporated association.
(2) Where an employers' association is unincorporated—

(a) it is capable of making contracts;

(b) it is capable of suing and being sued in its own name, whether in proceedings relating to property or founded on contract or tort or any other cause of action; and

(c) proceedings for an offence alleged to have been committed by it or on its behalf may be brought against it in its own name.

(3) Nothing in section 716 of the [1985 c. 6.] Companies Act 1985 (associations of over 20 members to be incorporated or otherwise formed in special ways) shall be taken to prevent the formation of an employers' association which is neither registered as a company under that Act nor otherwise incorporated.

Therefore, as the ANEC / NEA has not gone down this route they have not afforded their members potential protection under this Act.
Back to the position that the members are 'jointly and severally' liable.
B. You have already stated that the Assembly is not covered by the Freedom of Information Act 2000. Therefore, can you confirm that it is not a 'public body' or 'public authority?'
You are going to confirm or clarify the same for ANEC?

(2) Again, can you clarify what you mean by your question. What do you mean by "underwriting the contracts of employment"?
C. Quite simple. If the funding to ANEC / NEA ceases, then who will fulfil the contracts of employment, pensions, redundancies of the permanent members of staff? Has this been discussed in budget meetings?
In YHA, Wakefield has provided a guarantee that they will be responsible.
In NW a similar guarantee has been provided by St. Helen's, I do believe
D. The question quite simply is, 'Is any one NE local authority doing the same?'

(3) As you know, both the Association and the Assembly were considering going down the route of incorporation. During discussions around this issue I commented upon the implications of being an unincorporated association.
You stated that individual members had been informed. From correspondence received from a number of sources, some seem aware, others are not.
E. Did you formally advise, in writing, all ANEC and NEA members of the legal status of the ANEC and NEA and their potential personal liabilities? Yes or No?
F. If you did not advise after our request to do so, do you think that this was negligent in the light of the potential compromising of the members?

(4) I work closely with the two trade unions representing staff in the Association and have responded positively to all requests for information put to me.
Again Stephen, you did not answer the question.
G. Did you approach the unions, or the union representatives, to advise them of the potential compromise of their members' employment and rights should the assembly funding question and liability of the members be raised?

Further Questions:

1. Can you confirm that NEA and ANEC are 'public bodies exercising public functions' and therefore covered by the Freedom of Information Act 2000?
(1) My understanding is that the Assembly is not covered by the Freedom of Information Act. If you have a legal view that points to this not being the position, I'd be happy to check things out further. I'm currently checking the position of the Association of North East Councils.
H. Why is NEA not covered by the Freedom of Information Act 2000. Is it not a 'public body'?
Is ANEC covered by the Freedom of Information Act 2000? Is it not a 'public body'?

2. Can you please supply all the information you have on me and any communications with other bodies concerning me, including telephone conversations, e-mails and letters, under the Data Protection Act 1998.(2) I'm checking this out. At first glance the information we hold looks to comprise mainly the exchenge of correspondence and e-mails between yourself and myself, copies of which you will already hold.I. Can you confirm for the record that there are no communications (written, telephone or e-mail) regarding me, between yourself and Bob Rayner or any other officers at Sunderland Council / the same and the ODPM / the same and GONE / the same and the District Auditor / the same and any ANEC / NEA member?

Regards,
Stephen

My apologies for being somewhat persistent, but as this whole affair involves a very seriously large sum of public money then I think all the questions raised and the insistence on clear, unambiguous answers is fundamental.

Regards,
Neil Herron