To:The Monitoring Officer
Your councils name and address
As you may be aware, there have been a number of reports in the press and media concerning the behaviour of the North East Assembly in the past, which led to censure by the District Auditor for breaches of Section 19 of Local Authority Guidelines on Publicity.
It appears however, that the regardless of the decision in last year’s referendum in the North East, and regardless of the referendum postponement in the North West, the regional agenda continues.
My concern, and that of many others, is therefore drawn to what appear to be some very serious misuses of public money.
There are a number of questions that I wish to have answered, and information I am requesting under the Freedom of Information Act 2000:
- Can you confirm that ......................... Council is aware that the NWRA is an ‘unincorporated association’ and thereby have no legal personality?
- Can you please provide details of all the amounts paid by ...................... Council to NWRA since its inception?
- Can you please provide details of all the .......................... Council’s representatives of the NWRA 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?
- Can you confirm that at all times the Members’ Interest Book had up to date details of membership of NWRA? If not, can you advise as to when and where the breaches were noted and the date they were corrected?
- Had the members indicated in the Member’s Interest Book that they had a personal, pecuniary or prejudicial interest in the NWRA? If not, had you, as the Monitoring Officer, advised them otherwise?
- 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? (In the North East, North Tyneside Council have given such advice to its members…reported Newcastle Journal July 5th 2005)
- Is NWRA recognised or registered as an employer under Section 122 of the Trade Union & Labour Relations (Consolidation) Act 1992?
- If they are not, who is responsible for the contracts of employment, and is it lawful for a local authority to underwrite liabilities for an outside body?
- It appears from recent press reports that the ‘unincorporated association,’ known as the North West 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?
- 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 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 .......................... Members of NWRA 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 NWRA who are ‘jointly and severally’ liable.
Therefore, if, as it appears, NWRA is not registered as an employer under the Trade Union and Labour Relations (Consolidation) Act 1992 then it is the members of NWRA 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 and possibly millions.
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 NWRA, sitting as councillors and approving .................................. Council’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 senior members 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 also advise the date ............................. Council legally adopted the Model Code of Conduct, in order to determine under which act the offences / breaches occurred,
If it is the case that any local authority is underwriting or guaranteeing the contracts of employment can you confirm which local authority and whether you have taken advice as to the legality of this action?
I will await your response before deciding on my next course of action, but by return could you please supply copies of the council’s complaints procedure and details of the complaints procedure to the ombudsman.Dependent on your response it may be necessary for you to refer the matter to the Director of Public Prosecutions for investigation, as it is in the public interest to do so, especially due to the seriousness of the allegations.
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.