Your name and address
To:
The Monitoring Officer
Your councils name and address
………………………
………………………
………………………
Dear…………………,
As you are aware, there have been a number of reports in the press and media concerning the behaviour of Association of North East Councils / North East Assembly in the past, which has led to censure by the District Auditor for breaches of Section 19 of Local Authority Guidelines on Publicity.
It appears however, that the regional agenda is to continue regardless of the decision in last year’s referendum.
It also appears that the North East Local Authorities are not taking heed of the result and the rejection by the electorate of a regional assembly and are continuing to make financial contributions to both bodies, which have now split.
My concern, and that of many others, is therefore drawn back to what appear to be some very serious misuses of public money.
I am aware that certain discussions have taken place with the District Auditor and the Senior Policy Advisor at the Standards Board and I understand that I first need to raise the matters of concern with you for investigation.
However, because of the seriousness of the allegations and the implications for other local authorities, I will also be copying in a number of other interested parties in on this correspondence.
I also believe that the matter is so serious that it may warrant a Police investigation with a view to prosecutions.
Therefore, I hope that you will treat and investigate the matter thoroughly and with the view that this is simply the beginning of a process that will also be replicated in other authority areas and with other regional assemblies across the country.
There are a number of questions that I wish answered before moving on to the complaint, and the answers will have an obvious bearing on the next stages of the complaint and investigation procedures by outside bodies:
1. Can you confirm that ……………… Council is aware that both ANEC & NEA are ‘unincorporated associations’ and thereby have no legal personality?
2. Can you please provide details of all the amounts paid by ……………………Council to ANEC and NEA since their inception?
3. Can you please provide details of all the ……………………… Council’s representatives of ANEC and NEA over the period this money was paid and whether they were present at council meetings when this payment, the ‘voluntary subscription,’ was agreed in the budget?
4. Can you confirm that at all times the Members’ Interest Book had up to date details of membership of ANEC and NEA? If not, can you advise as to when and where the breaches were noted and the date they were corrected?
5. Had the members indicated in the Member’s Interest Book that they had a personal, pecuniary or prejudicial interest in ANEC or NEA? If not, had you, as the Monitoring Officer, advised them otherwise?
6. Were they ever advised by yourself as Monitoring Officer, or the Council Solicitor, or any other official of the Local Authority that membership of an ‘unincorporated association’ whose members are ‘jointly and severally’ liable may have personal financial consequences? (North Tyneside Council have given such advice to its members…reported Newcastle Journal July 5th 2005)
7. The previous Director of ANEC / NEA, Stephen Barber, advised that he informed all members of both organisations of their potential personal liability. Were you aware of this? If so, did you immediately check with all of …………………members of ANEC / NEA that they required to take independent legal advice?
If not, why not?
8. I am aware that Stephen Barber, former Director of ANEC/NEA advised Sunderland City Council that there was a 'insurance indemnity' in place to cover any potential future litigation / legal challenges to ANEC/NEA’s status and activities.
Did ………………………… Council ask for sight of this indemnity?
If so, can you please provide a copy of this advice / indemnity under the Freedom of Information Act 2000?
If not, do you think it would have been prudent to take independent legal advice should such a potential liability fall on the council?
9. ANEC or NEA are not recognised as an employer under Section 122 of the Trade Union & Labour Relations (Consolidation) Act 1992.
— Are you aware of this?
— Did you advise ………………… Council’s ANEC/NEA members of this?
— Did you advise them that they were the ‘legal personality’ of NEA / ANEC? And as such they could face a potential personal liability for those contracts and pensions / redundancies should there ever be a shortfall in the funding stream?
— Following the previous censure by the District Auditor after the behaviour of the Assembly / ANEC regarding unlawfully publicising their activities, did you conduct any investigations or monitor the behaviour of the Assembly / ANEC ?
If so, can you please provide me with details of those activities?
If not, why not?
— Did you check out its legal status, and the possibility of future legal action or did you simply rely on the reassurances of its Director, Stephen Barber? If so, under the Freedom of Information Act 2000 can you please provide copies of these investigations?
— Are you aware of any North East Local Authority underwriting the ANEC / NEA’s contacts of employment for their permanent members of staff? If so, which authority?
10. It appears from recent press reports that the ‘unincorporated association,’ known as the North East Assembly is considering changing its name and is planning to incorporate.
Can you please supply (under the Freedom of Information Act 2000) details of communications between the Council and the Assembly on this matter?
11. Can you confirm that under the Companies Act 1985:
Pre-incorporation contracts, deeds and obligations.
36C.-(1) A contract which purports to be made by or on behalf of a company at a time when the company has not been formed has effect, subject to any agreement to the contrary, as one made with the person purporting to act for the company or as agent for it, and he is personally liable on the contract accordingly.
(2) Subsection (1) applies-
(a) to the making of a deed under the law of England and Wales, and
(b) to the undertaking of an obligation under the law of Scotland, as it applies to the making of a contract.
And that incorporation will not protect members from potential liabilities arising from contracts agreed before incorporation?
THE COMPLAINT
The complaint which I will initially ask you to respond to, which may subsequently require further investigation by outside bodies, dependent on your response is as follows:-I wish to make a formal complaint, which I will ask you to make available to the District Auditor because of the potential ‘knock-on’ implications for other local authority councillors and possible future legal action.
The complaint is as follows:-
1. Relates to the Code of Conduct of councillors.
From Part 2.8 (1) of The Local Authorities (Model Code of Conduct) (England) Order 2001,
“A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given in paragraph 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants of the authority’s area, the well-being or financial position of himself, a relative or a friend …”
Can you confirm that ……………………… Council’s Members of ANEC and NEA have recorded in the Members’ Interest Book the fact that they are only ‘members’ of the organisations (you will be confirming whether they have all done this…question 4 above).
Can you confirm that they have not registered a ‘personal,’ ‘pecuniary’ or ‘prejudicial’ interest?
The members’ financial interest arises because as ‘unincorporated association’ it is the members of NEA & ANEC who are ‘jointly and severally’ liable.
Therefore, if, as it appears, ANEC is not registered as an employer under the Trade Union and Labour Relations (Consolidation) Act 1992 then it is the members of ANEC who have the legal responsibility for contracts entered into by that body.
The liability of the contracts of employment amounts to many hundreds of thousands of pounds.
Therefore, if Local Authorities ceased to pay ‘voluntary subscriptions’ or there was a change of government whereby these bodies were abolished (or both) the liabilities of the members would become immediate and apparent.
Therefore, for the members of ANEC & NEA, sitting as councillors and approving ……………………’s budget and voluntary subscriptions there is a serious breach of Local Government Act 1972 Section 94 (1) as well as breaches of the Members Code of Conduct.
Section 94 (1) states,
“Subject to the provisions of section 97 below, if a member of a local authority has any pecuniary interest, direct or indirect, in any contract, proposed contract or other matter, and is present at a meeting of the local authority at which the contract or other matter is the subject of consideration, he shall at the meeting and as soon as practicable after its commencement disclose the fact and shall not take part in the consideration or discussion of the contract or other matter or vote on any question with respect to it.”
(The disability could not be removed by Section 97 (5) of the same Act because the ‘influence’ of the leader and deputy leader of the ruling group could hardly be classed as ‘insignificant').
Therefore, under Section 94 (2) of the Local Government Act 1972 it appears that an offence / offences have been committed.
Please advise the date …………………………Council legally adopted the Model Code of Conduct.
I wish for you to refer the matter to the Director of Public Prosecutions for investigation, as it is in the public interest to do so.I trust that you will treat this complaint with the seriousness that it merits and I will receive a full and thorough response addressing all of the points raised in order for the complaint to be taken to the next stage of proceedings.
Yours sincerely,
xxxxxxxxxxxxxxx
To:
The Monitoring Officer
Your councils name and address
………………………
………………………
………………………
Dear…………………,
As you are aware, there have been a number of reports in the press and media concerning the behaviour of Association of North East Councils / North East Assembly in the past, which has led to censure by the District Auditor for breaches of Section 19 of Local Authority Guidelines on Publicity.
It appears however, that the regional agenda is to continue regardless of the decision in last year’s referendum.
It also appears that the North East Local Authorities are not taking heed of the result and the rejection by the electorate of a regional assembly and are continuing to make financial contributions to both bodies, which have now split.
My concern, and that of many others, is therefore drawn back to what appear to be some very serious misuses of public money.
I am aware that certain discussions have taken place with the District Auditor and the Senior Policy Advisor at the Standards Board and I understand that I first need to raise the matters of concern with you for investigation.
However, because of the seriousness of the allegations and the implications for other local authorities, I will also be copying in a number of other interested parties in on this correspondence.
I also believe that the matter is so serious that it may warrant a Police investigation with a view to prosecutions.
Therefore, I hope that you will treat and investigate the matter thoroughly and with the view that this is simply the beginning of a process that will also be replicated in other authority areas and with other regional assemblies across the country.
There are a number of questions that I wish answered before moving on to the complaint, and the answers will have an obvious bearing on the next stages of the complaint and investigation procedures by outside bodies:
1. Can you confirm that ……………… Council is aware that both ANEC & NEA are ‘unincorporated associations’ and thereby have no legal personality?
2. Can you please provide details of all the amounts paid by ……………………Council to ANEC and NEA since their inception?
3. Can you please provide details of all the ……………………… Council’s representatives of ANEC and NEA over the period this money was paid and whether they were present at council meetings when this payment, the ‘voluntary subscription,’ was agreed in the budget?
4. Can you confirm that at all times the Members’ Interest Book had up to date details of membership of ANEC and NEA? If not, can you advise as to when and where the breaches were noted and the date they were corrected?
5. Had the members indicated in the Member’s Interest Book that they had a personal, pecuniary or prejudicial interest in ANEC or NEA? If not, had you, as the Monitoring Officer, advised them otherwise?
6. Were they ever advised by yourself as Monitoring Officer, or the Council Solicitor, or any other official of the Local Authority that membership of an ‘unincorporated association’ whose members are ‘jointly and severally’ liable may have personal financial consequences? (North Tyneside Council have given such advice to its members…reported Newcastle Journal July 5th 2005)
7. The previous Director of ANEC / NEA, Stephen Barber, advised that he informed all members of both organisations of their potential personal liability. Were you aware of this? If so, did you immediately check with all of …………………members of ANEC / NEA that they required to take independent legal advice?
If not, why not?
8. I am aware that Stephen Barber, former Director of ANEC/NEA advised Sunderland City Council that there was a 'insurance indemnity' in place to cover any potential future litigation / legal challenges to ANEC/NEA’s status and activities.
Did ………………………… Council ask for sight of this indemnity?
If so, can you please provide a copy of this advice / indemnity under the Freedom of Information Act 2000?
If not, do you think it would have been prudent to take independent legal advice should such a potential liability fall on the council?
9. ANEC or NEA are not recognised as an employer under Section 122 of the Trade Union & Labour Relations (Consolidation) Act 1992.
— Are you aware of this?
— Did you advise ………………… Council’s ANEC/NEA members of this?
— Did you advise them that they were the ‘legal personality’ of NEA / ANEC? And as such they could face a potential personal liability for those contracts and pensions / redundancies should there ever be a shortfall in the funding stream?
— Following the previous censure by the District Auditor after the behaviour of the Assembly / ANEC regarding unlawfully publicising their activities, did you conduct any investigations or monitor the behaviour of the Assembly / ANEC ?
If so, can you please provide me with details of those activities?
If not, why not?
— Did you check out its legal status, and the possibility of future legal action or did you simply rely on the reassurances of its Director, Stephen Barber? If so, under the Freedom of Information Act 2000 can you please provide copies of these investigations?
— Are you aware of any North East Local Authority underwriting the ANEC / NEA’s contacts of employment for their permanent members of staff? If so, which authority?
10. It appears from recent press reports that the ‘unincorporated association,’ known as the North East Assembly is considering changing its name and is planning to incorporate.
Can you please supply (under the Freedom of Information Act 2000) details of communications between the Council and the Assembly on this matter?
11. Can you confirm that under the Companies Act 1985:
Pre-incorporation contracts, deeds and obligations.
36C.-(1) A contract which purports to be made by or on behalf of a company at a time when the company has not been formed has effect, subject to any agreement to the contrary, as one made with the person purporting to act for the company or as agent for it, and he is personally liable on the contract accordingly.
(2) Subsection (1) applies-
(a) to the making of a deed under the law of England and Wales, and
(b) to the undertaking of an obligation under the law of Scotland, as it applies to the making of a contract.
And that incorporation will not protect members from potential liabilities arising from contracts agreed before incorporation?
THE COMPLAINT
The complaint which I will initially ask you to respond to, which may subsequently require further investigation by outside bodies, dependent on your response is as follows:-I wish to make a formal complaint, which I will ask you to make available to the District Auditor because of the potential ‘knock-on’ implications for other local authority councillors and possible future legal action.
The complaint is as follows:-
1. Relates to the Code of Conduct of councillors.
From Part 2.8 (1) of The Local Authorities (Model Code of Conduct) (England) Order 2001,
“A member must regard himself as having a personal interest in any matter if the matter relates to an interest in respect of which notification must be given in paragraph 14 and 15 below, or if a decision upon it might reasonably be regarded as affecting to a greater extent than other council tax payers, ratepayers or inhabitants of the authority’s area, the well-being or financial position of himself, a relative or a friend …”
Can you confirm that ……………………… Council’s Members of ANEC and NEA have recorded in the Members’ Interest Book the fact that they are only ‘members’ of the organisations (you will be confirming whether they have all done this…question 4 above).
Can you confirm that they have not registered a ‘personal,’ ‘pecuniary’ or ‘prejudicial’ interest?
The members’ financial interest arises because as ‘unincorporated association’ it is the members of NEA & ANEC who are ‘jointly and severally’ liable.
Therefore, if, as it appears, ANEC is not registered as an employer under the Trade Union and Labour Relations (Consolidation) Act 1992 then it is the members of ANEC who have the legal responsibility for contracts entered into by that body.
The liability of the contracts of employment amounts to many hundreds of thousands of pounds.
Therefore, if Local Authorities ceased to pay ‘voluntary subscriptions’ or there was a change of government whereby these bodies were abolished (or both) the liabilities of the members would become immediate and apparent.
Therefore, for the members of ANEC & NEA, sitting as councillors and approving ……………………’s budget and voluntary subscriptions there is a serious breach of Local Government Act 1972 Section 94 (1) as well as breaches of the Members Code of Conduct.
Section 94 (1) states,
“Subject to the provisions of section 97 below, if a member of a local authority has any pecuniary interest, direct or indirect, in any contract, proposed contract or other matter, and is present at a meeting of the local authority at which the contract or other matter is the subject of consideration, he shall at the meeting and as soon as practicable after its commencement disclose the fact and shall not take part in the consideration or discussion of the contract or other matter or vote on any question with respect to it.”
(The disability could not be removed by Section 97 (5) of the same Act because the ‘influence’ of the leader and deputy leader of the ruling group could hardly be classed as ‘insignificant').
Therefore, under Section 94 (2) of the Local Government Act 1972 it appears that an offence / offences have been committed.
Please advise the date …………………………Council legally adopted the Model Code of Conduct.
I wish for you to refer the matter to the Director of Public Prosecutions for investigation, as it is in the public interest to do so.I trust that you will treat this complaint with the seriousness that it merits and I will receive a full and thorough response addressing all of the points raised in order for the complaint to be taken to the next stage of proceedings.
Yours sincerely,
xxxxxxxxxxxxxxx
4 comments:
DEAR SIR , With regard to the southeast regional assembly , subscriptions are by no means "voluntary" since according to thier "constitution"
"any member organization failing to pay its anual subscription by 1 july of the year in which its subscriptions are due , will cease to be a member of the assembly , and will not be entitled to a seat or to vote in the assembly"
If these RAs were legitimate ,elected ,accountable , democratic organizations , would the members be able to buy a seat?
This is a wonderful complaint. But it is worded for the North East. Would someone with the expertise to write this complaint please write a general one which we could use in the South West? and all the other regions?
Rollo
I agree with Rollo. It would be great if a draft for use with any of the RAs could be posted. I would like to ask the IoW council some questions.
I also agree with Rollo. Please do likewise for the SE RA. I admire the work being done in this area by volunteers unknown.
Rgds Colin Hamilton
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