Reply by Cllr Comotto to comments in Rye Observer by Cllr Maynard of Rother

It is clear from Cllr Maynard’s remarks in last week’s Rye Observer that Rother is determined not to learn anything from the recent appeal tribunal judgements. He seems to be arguing that the score was 2-1 to Rother. But Rother’s two goals actually relate to one and the same event, which was that I did not declare a prejudicial interest and failed to leave the room. This is hardly in the same league as Rother’s attempt to suppress the right of councillors to freedom of speech and to engage in political activity, which would have had national ramifications.
 

Cllr Maynard is understandably keen to deflect public attention from Rother’s fundamental legal error. But he is grasping at straws by seeking to derive comfort from the judgement against me. Consider what the appeal tribunal actually said, which was that my action was “not a serious breach [of the councillors’ code] and no consequences flowed from it”. In other words, the breaches to which Cllr Maynard attaches so much importance were technical and not material. That is why the tribunal overturned Rother’s sanction, even though this was only a censure. Even a censure was felt to be a “disproportionate sanction in the particular circumstances”.

 

Rother would like to believe that I was “attempting to use [my] position to improperly advantage [myself]” by failing to declare a prejudicial interest. Most members of the public will assume that a “prejudicial interest” is a financial one and indeed that is what Rother tried to argue. But the tribunal rejected Rother’s argument and stated explicitly that my interest was not financial. Moreover, the tribunal highlighted the fact that I had made “full disclosure of [my] interest and involvement” in the local not-for-profit organisation being discussed, by declaring a personal interest.

 

The point also needs to be made that I breached the code by failing to leave the room during a confidential meeting of Icklesham Parish Council to discuss a course of action which the law does not allow councils to take! In other words, the breach was not only technical but also hypothetical!

 

Cllr Maynard’s conclusion is that Rother has a duty to investigate complaints against councillors. I would not disagree but I would argue that Rother also has a duty, before spending tax-payers’ money, to exercise judgement and commonsense by determining whether complaints are vexatious and therefore unlikely to be proven if pursued. It failed to do so in Winchelsea, which means that, at the end of the day, all that Rother has to show for over £10,000 of tax-payers’ money is a technical (and hypothetical) breach of the councillors’ code of conduct.

As for Cllr Maynard wish that councillors with different opinions should keep a “low profile”, I bet he does! The one-party state that is Rother District Council rolls on.

Winchelsea ward councillors report in Rye Observer 27-Jan-2012

We’ve been rather quiet in 2011. The reason has been the vast amount of time that we have had to devote to fighting false allegations made, in February 2010, by councillors from the other wards of Icklesham Parish Council to Rother District Council’s Standard Committee. This story has already featured in the pages of the Observer, so there is no need to repeat it here. But one aspect merits elaboration: the subject of the parish council meeting in August 2009, which was the origin of the complaint against Cllr Comotto. This was a proposal by the chairman and some other councillors that the parish council should sue the Wincheslea website www.winchelsea.net (with which Cllr Comotto is involved) for defaming Icklesham Parish Council by referring to "a history of incompetent chairmen" and "a dysfunctional council”.
 

It subsequently emerged that local councils (and indeed central government) do not have the right to sue for defamation! Indeed, this is a basic principle of law, designed to protect freedom of speech. How did Icklesham Parish Council ever come to consider such a proposal?

 

We have tried to find out, but it has not been easy, not least because Icklesham Parish Council no longer has any of the relevant papers in its files! This is not the first time that official papers relating to a contentious issue have gone missing at Icklesham. However, from another source, we learned that the initial legal advice was obtained by an Icklesham ward councillor from an anonymous acquaintance (for all we know, this could have been a man in the pub, perhaps even the same man whose advice some years ago almost got the parish council prosecuted for VAT evasion).

 

A group of Icklesham councillors then consulted the Sussex Association of Local Councils (SALC). SALC say that their policy is not to give advice to individual councillors, only to councils (or clerks). They seem to have made an exception on this occasion. SALC have refused to answer further questions on their role but we know that they consulted their solicitors, Hedleys, a firm specialising in local authority law. Hedleys deny advising the council to sue for defamation but they did draft a letter for the council to send out which makes this threat. SALC did not spot Hedley’s error.

 

The proposal to sue the Winchelsea website was then placed, as a “confidential” item, on the agenda of the August 2009 council meeting. August council meetings are supposed to be only for the signing of cheques. Why could the council not wait until September? Was it because Winchelsea councillors had indicated that they might not be able to attend the August meeting? And then there was the agenda item. This was vague and made no mention of the proposal to sue. The resolution was tabled at the meeting. There can be no doubt that the intention was to keep Winchelsea councillors in the dark. So, when other councillors discovered that we had learned of the secret proposal, they openly protested that we should have been allowed to prepare ourselves for the discussion!

 

After an acrimonious debate, during which it became apparent that whatever legal advice had been received by certain councillors had been incomplete and not well understood, the council decided to delegate decisions to sue for defamation to two councillors and the clerk. The proposed delegation of powers (not to mention the vagueness of the agenda) was probably illegal. Given that a decision to sue could cost the council many thousands of pounds, it was certainly highly imprudent.

 

So, here we are, two years on. The text which so upset some members of Icklesham Parish Council, and which snowballed into the Standards Committee fiasco which has just ended, is still on the Winchelsea website. This includes the reference to the often “dysfunctional behaviour” of Icklesham Parish Council. Who can argue with that now?

Rother not to appeal against appeal in Winchelsea freedom of speech case

The Standards Committee of Rother District Council met on 11 January 2012 to consider whether to appeal against the judgement which comprehensively and utterly overturned Rother's ruling that Winchelsea councillors had breached the Councillors' Code of Conduct. As the Standards Committee could find no error in law in the appeal judgement, they decided that they had no grounds to contest it.


Rother seemed inclined to heap the blame for their decisive legal defeat on the solicitor they had employed (at a cost of some £6,500) to investigate the allegations against Winchelsea councillors by other Icklesham Parish Councillors. She was accused of failing to draw the attention of Rother to the freedom of speech issues raised by the case.


But why should the investigator take all the blame for ignoring a fundamental human right like freedom of speech, when the Rother sub-committee which ruled on the complaints against Winchelsea councillors included two solicitors (the Chairman and Rother's legal adviser)? And why did no one notice the issue of freedom of speech when it had been clearly flagged up to both the investigator and the sub-committee by Winchelsea councillors?


It also needs to be pointed out that the investigator's case against Winchelsea councillors rested primarily on a series of allegations that they had made untruthful and misleading statements about Icklesham Parish Council. In other words, her contention was that Winchelsea councillors had acted disreputably because they had lied. One can see why the investigator may have thought that freedom of speech was irrelevant.


The investigator's real failure was that she ignored evidence which destroyed the allegations that Winchelsea councillors had lied. Her failure may have been, in part, because she did not have an adequate understanding of parish council matters such as Local Action Plans (LAPs), despite the fact that they were at the heart of the complaints.


But the Rother sub-committee is even more at fault in these respects. It was given the same evidence against the allegations as the investigator but also heard that evidence confirmed, in person and in no uncertain terms, by the former Clerk to Icklesham Parish Council. Yet, when confronted with these facts at the sub-committee hearing, the Chairman interrupted the evidence and abruptly shifted the goalposts, stating that it was irrelevant whether the statement by Winchelsea councillors were true or not, what was at issue was whether their language was intemperate.


Ironically, by switching the case for the prosecution from the issue of truthfulness to the issue of expression, the Chairman himself brought the issue of freedom of speech into consideration. In the landmark Livingstone case (2006) --- ignored by the Rother sub-committee --- the judge said that, "The burden is on the [the person seeking to interfere with the right] to justify interference with freedom of speech. However offensive and undeserving of protection the appellant’s outburst may have appeared to some, it is important that any individual knows that he can say what he likes, provided it is not unlawful, unless there are clear and satisfactory reasons within the terms of Article 10(2) to render him liable to sanctions".


But even if the Rother sub-committee ignored the law, why did they not exercise commonsense? What reasonable person believes that the words "sham" and "ambush" are intemperate language and worthy of extended and costly consideration by a semi-judicial tribunal?


The Rother sub-committee, like their investigator, is also guilty of failing to understand parish LAPs. As noted, these were at the heart of the allegations against Winchelsea councillors. During the sub-committee, the Chairman expressed confusion over terms such as LAPs, LATs and Quality Parish Councils. He also expressed a lack of interest.


What indisputably breached Winchelsea councillors' right to freedom of speech was the sub-committee's opinion that councillors cannot question and lobby against council decisions, whether or not those decisions are flawed or even improper. This doctrine was expounded very firmly at the sub-committee hearing by Rother's solicitor and strongly supported by the Chairman and the District Council representative. Only the parish council representative was uneasy about this attempt to suppress freedom of speech.


Unfortunately, it would appear that Rother's Standards Committee has learnt nothing from the appeal tribunal judgement against them. They have not felt it necessary to consider how they came to be guilty of such a gross misinterpretation of the law. At least one member,  Rother Councillor Roger Bird, is in complete denial and resolutely rejects the appeal tribunal judgement. According to Cllr Bird, "The issue showed the lottery of going to judgement. It comes down to the spin of a coin." Was this an insight into how Rother reached its now discredited decision against Winchelsea councillors?

RC

Icklesham Parish Council meeting, 9 January 2012

Winchelsea matters

County Cllr Glazier reported on the complaint received from Cllr Comotto and other residents of Winchelsea about the shanty town erected in the middle of Winchelsea by Southern Railway as part of the bus service replacing the train service while the Marshlink is closed. As usual, Cllr Glazier did not see what could be done. Cllr Comotto pointed out that East Sussex Highways Authority, which had issued the licence to Southern Railway to use the verge, felt that they had been misled. He asked that Highways therefore withdraw the licence. Cllr Glazier was not interested (as in most Winchelsea matters). However, the council agreed to write to Southern Railway to put forward the objections raised by residents.

After ten years, possibly longer, the council has finally appointed a contractor to clean bus shelters and benches! Actually, it appointed one last year but they were unable to do the job. The money for cleaning has been on the council's budget for more than 10 years but has never been spent.

The council finally agreed to take ownership from the Community Office of the four interpretation boards and two map boards in Winchelsea , while leaving the copyright with the Community Office. The council already insures and maintains the boards. Cllr Bronsdon was very unhappy about the copyright issue, muttering about "power and control".

The council rejected the attempt by the soon-to-depart PCSO to extend the Community Speed Watch to Icklesham and Winchelsea Beach. Cllrs Bronsdon, Stanford and Sutton were particularly hostile to the idea. Cllr Bronsdon was outraged by statements that Icklesham Parish Council did not support Community Speed Watch in Winchelsea. He was adamant that the council had always supported Community Speed Watch but not the use of speed guns, while Cllr Stanford said she supported Community Speed Watch but not the "community" bit. In other words, they support Community Speed Watch but not the Community or Speed Watch aspects! The chairman reiterated his fears that volunteers would be assaulted, ignoring the experience of Winchelsea and the rest of the country. Of course, in the past, he has been keen on Winchelsea volunteers coming to Icklesham, so it seems that his real objection is that he might have to do some work himself. Other councillors made it clear that they should not be called upon. In the end, however, there was not enough opposition to vote down the proposal and the decision was deferred until the Annual Parish Meeting.

Other wards

The council has received several complaints from residents of Winchelsea Beach about the lack of consultation about the decision to erect a row of bollards to keep vehicles off Harbour Field, which they thought were unsightly. This is the second set of complaints about lack of consultation by the council in Winchelsea Beach (the previous being about plans to erect a basket-ball hoop). The project had anyway come to grief because of the difficulty experienced by the contractor in fixing the bollards into the ground, which proved to be very stony and contains the foundations of Smeatons Harbour. The contractor also accidently severed a gas main, which was not on the plans of the gas company. Several residents attended the meeting to to ask for the restoration of a hedge. The clerk had the guts to admit that the bollards were the wrong option, given the nature of the ground, and the council had failed to consult residents directly affected. The council agreed to his proposal to switch to a hedge, protected pro tem by a stock fence.

Better consultation was pledged in the future. It will be interesting to see if future public consultations by the council come to much. When Winchelsea residents were consulted on turning off the footlights at midnight for financial and environmental reasons, although the response was 2:1 in favour and over 60 households responded, the decision was deferred for another consultation at the Annual Parish Meeting (where it will be easier for unrepresentative groups to influence the decision).

An illuminating debate broke out on proposals for Icklesham Recreation Ground. Cllr Warren has been organising consultations to decide what needs to be done. He believes public opinion is in favour of a childrens' play area. Cllr Merricks wants a hard surface, among other things, for hockey and badminton! Icklesham does not have and never has had a hockey team; and one supposes that badminton is still played indoors. One could have been forgiven for thinking that Cllr Merricks' agenda was to squeeze out the Icklesham Casuals football team. As in the past, she had a go at them for using the pitch in bad weather and only having one resident player (Cllr S Turner looked uneasy at this point, as he runs the Winchelsea Cricket Club, which also has only one resident player). No councillors did not seem worried by the fact that they are making plans for children with no knowledge of the number and age profile of the children for whom they are making plans!
A proposal has been made to buy high visibility vests for councillors to wear when they are out on council business and ID cards to prove who they are. The question was posed, where are councillors proposing to go that requires high visibility vests. The decision was deferred.

Two community noticeboards have been purchase at a cost of £280 [but see blog of 12 February] for Icklesham and Rye Habour. Readers will recall that a noticeboard to serve the isolated Tanyard Lane community in Winchelsea was rejected by the council.

The council now has an Asset Register. It should have had one years ago but only the current clerk has managed to produce one [but see blog of 12 February].

When the contract for grass cutting came up, one contractor quoted £4,646, some £2,900 cheaper than the nearest rival. Some councillors were suspicious and wanted to go for the next highest. All the firms quoting were confirmed as reputable. In the end, the council was persuaded to go for the cheapest quote. Those opposed fretted about the quality of service and wanted safeguards. But all the council has to do is ensure its contract is clear, inspect the work and withhold payment or repudiate the contract if performance is inadequate. Cllr Bronsdon continued to grumble about the anonymous system of tendering, even though it is laid down in council rules. Winchelsea costs just £203 to mow, just 4.4% of the total mowing budget. Icklesham costs £767 (16.5%), Winchelsea Beach £2,293 (49.4%) and Rye Harbour £1,382 (29.7%) .

Cllr Merricks proposed that the council spend £250 on registering the playing fields with the Queen Elizabeth II Fields Challenge in order to protect them in perpetuity. Cllr Bronsdon was unhappy with this on the grounds that it would stop them ever being built on! Other councillors were unconvinced that the protection offered was any greater than the covenants already on the fields. Further information is to be sought but it is not clear what else can be added to that already before the council.
The issue of rural superfast broadband came to the council. Cllrs P Turner and Warren had prepared rather good reports. It was a shame that many councillors appeared not to have read them. Councillors were asked, as individuals, to try to get residents to measure broadband speeds in their villages and pass the information, before the end of January, to East Sussex.

Disquiet over the conduct of council meetings

The meeting ran until 21:50, which meant it lasted 2 hours 35 minutes. This is becoming the norm. Best practice is that council meetings should last no longer than 2 hours, partly in order not to deter members of the public (remember how left-wing trade unionists in the 1970s used to stretch meetings out over hours in order to ensure that only militants would stay for important votes?).

There is some unhappiness about the duration of meetings but councillors seem inclined to blame the length of the agenda. However, the real reasons are weak chairmanship and the inability of councillors to work efficiently in plenary session.

The council does not follow the rules of debate set out in its own (recently re-issued) Standing Orders, which prescribe the order in which councillors should speak, the duration and rights of reply. Public questions are allowed to overrun, not least because, when several members of the public attend in order to support or object to a proposal, they are allowed to repeat themselves. One of the District Councillors is allowed to go on and on, even when it is plain that he has nothing new to say. Last night, the formal council meeting did not get going until 19:53. The chairman allows councillors unhappy with the outcome of a vote to re-open the debate after the vote has been taken: it is clear that some councillors try to change the sense of decisions. Last night, one councillor tried to substitute a different type of fence for the one agreed by the council. Another councillor insists on having the last word, even when the rules of debate leave that to the proposer of a resolution or amendment. And when that particular councillor feels she is losing the argument, she tries to talk over and down other councillors, as though she is trying to wear them down. Councillors are also allowed to open discussions on items put on the agenda for information only.

Another problem is that, although the clerk provides written reports, it is clear that some councillors do not read them and the council consequently wastes time going over what has already been explained.

A number of councillors simply cannot follow discussions. For example, last night, when councillors were asked to locate telephone cabinets in their villages as part of the rural broadband project, one councillor happily asserted that BT would provide that information if they were phoned and had done so to her husband. In fact, what BT had provided was download-upload speeds. Sometimes, the short attention span has serious consequences. Thus, the failure of a councillor to follow a budget discussion led to the council spending some £1,100 on recording equipment [but see blog of 12 February].

It is of course the job of the chairman to ensure that that the rules of debate are followed and that meetings run efficiently in other respects. He is patently not doing this.

RC