Guest blog by Philip Grant
It appears that I was being optimistic when I gave an update on this subject in January LINK referring to “progress” in dealing with the objections by five local electors to Brent Council’s accounts for 2015/16. I am writing this article to keep interested “Wembley Matters” readers informed about the current situation.
Four months ago, the objectors were waiting to receive some Brent Council documents from the Auditor, so that we could make further comments in support of our objections, and in reply to the Council’s response of 14 December 2016 to our objections. We are still waiting!
Progress on investigating the objections has not been helped by a change in the person at Messrs KPMG who is acting as Auditor. We were informed of the change at the same time this was disclosed in a report by KPMG to Brent’s Audit Committee on 20 March:
‘We would like to inform the Audit Committee that Andrew Sayers, a partner based in our London office, is replacing Philip Johnstone as the engagement lead on the audit. Andrew has already met with Carolyn Downs, Althea Loderick and Conrad Hall to help ensure a smooth handover from Philip. Andrew has a wide experience of audit and is currently the engagement lead at five other London boroughs as well as KPMG’s national Lead Partner for Public Sector audit.’
Mr Sayers did confirm, when first writing to the objectors, that he would share with us all the documents which he considered to be material to his decision on our objections, although he made clear that these might not include those ‘subject to professional legal privilege’. I made the following comments in my reply:
‘That legal advice, the circumstances around and timing of when it was given, and who it was given to, are all key factors in determining whether the payment to Ms Davani was lawful, as the Council claim, or unlawful. Why are Brent's senior officers afraid to allow the objectors to see the evidence of that legal advice, in confidence and purely for the purposes of your investigation, as auditor, into our objections? If they are confident that this "legal advice" document will stand up to scrutiny, they should consent to you sharing it with us; I am copying this email to Carolyn Downs and Conrad Hall, in the hope that they will now give that consent.’
I wrote to Brent’s Chief Executive on 23 March, asking if she would, on behalf of Brent Council, ‘now consent to the auditor sharing with myself and the other objectors (subject to safeguards over confidentiality, and solely for use in respect of his investigation into our objections) the legal advice on which the Council's justification for the £157,610 payment we are objecting to is based.’
I hoped that the answer would be “yes”, but if it was “no”, I asked for some further information about the meeting at which the “legal advice” had been given, and the notes of that meeting (which appear to be the only documentary record of what that advice was). I hoped that this information would be provided ‘as a matter of course, in assisting with a proper resolution of the auditor's enquiries’, but asked Ms Downs to treat it as an FoI request if that was not the case.
The reply I received (not from Ms Downs, but from a Senior Officer on behalf of the Council) was very abrasive, but did provide the information I had requested. The “legal advice” had been given in May 2015 by Counsel to Christine Gilbert, then interim Chief Executive, who was accompanied by one other Senior Officer (but, surprisingly, not the Chief Legal Officer or any member of her legal team) who prepared the notes. The reply also referred to a decision notice, issued by the Information Commissioner’s Office on 22 March 2017, using this to justify why the legal advice should not be disclosed to the objectors.
That decision by the ICO was to reject a complaint by Cllr. John Warren against Brent Council’s refusal to disclose the “legal advice” used to justify the payment of £157,610 to Cara Davani, under an FoI request which he made in July 2016. Cllr. Warren had claimed that, although this was covered by “legal privilege”, it should be disclosed ‘in the public interest’. However, the ICO did refer to the Auditor’s investigation into the objections against the £157k payment, and made clear that this was a separate statutory process, so that Brent is wrong to claim that the FoI decision also precludes disclosure (in confidence) by Mr Sayers to the objectors.
The ICO report included a summary of the types of information which Brent has, and which would have been disclosed if Cllr. Warren’s FoI request or complaint had been upheld, saying:
‘The council stated that the withheld information comprises of email correspondence between council officers and the council's barrister relating to the termination of a, now, former employee's contract of employment and associated file notes.’
I have pointed out to the Council, and the Auditor, that this includes more documents than the objectors were led to believe (in November and December 2016) existed, and that all of these documents should be made available to the Auditor, if they had not already been provided to him. (Hopefully, they may still be shared with the objectors!).
I understand that the Auditor also asked Brent, in mid-March, to provide some further information and documentation (even though KPMG had asked them last November to provide all of the documents relevant to our objections). I do not know whether that is part of the reason for the continuing delay.
When nothing further had been heard from the Auditor by early May, I wrote to ask when the objectors could expect to have the documents shared with us. Mr Sayers has replied that he anticipates sharing the documents material to his decision with us by the end of June, but has not indicated why it should take so long.
The end of June 2017 will mark two years since Brent’s disgraced Director of HR walked away with £157,610 of Council Tax-payers’ money (as well as having her share of the Employment Tribunal settlement and legal costs in the Rosemarie Clarke case paid by Brent on her behalf). The objectors are having to be patient, but we will see this through. The sad thing is that key figures at Brent Council still seem determined to cover-up the details of what went wrong (and who was responsible for it), even though they finally admitted last year that ‘this had been a very unhappy episode’.