BREAKING: Wirral Council. Costs are in for the Richard Penn ‘investigation’

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BREAKING NEWS – 14th January 2013

Liverpool Echo

The figures are in for the costs of Richard Penn’s long term investigation into previously suspended officers David Green, Ian Coleman, Bill Norman and David Taylor Smith.

The total invoiced is a whopping £47,020.

This breaks down as £28,171 for the bulk of it which involved the complex acrobatics involved in reaching a conclusion that Green had ‘no case to answer’, and £18,849 for neatly avoiding the professed daunting ‘legal complications’ associated with Coleman and Norman.  As for Taylor Smith, he remains a man of mystery.

Councillors and senior officers will no doubt regard… what am I saying ‘regard’?…. will present this as money well spent.  But it’s not their money.  It’s our money.  And I can guarantee that not one member of the local public will agree that a further fifty grand shoveled into a yawning black hole, with absolutely no accountability or reckoning for any of the abuse or impropriety that occurred is ‘money well spent’.

In fact, in an honest, law-abiding, fully mature, grown up and civilised democratic arena, it would be more likely to qualify as malfeasance in public office – but they can all relax, because there’s nobody watching.

The train now departing from platform 1, Hamilton Square, is of the gravy variety….

UPDATE   27th December 2012

It’s official.  The Director who, in league with his assistant Nigel Jenkins, brought bogus “Gross Misconduct” bullying charges against me in 2003 which fell apart, but without any comeback, now has ‘no case to answer’ over allegations of impropriety associated with the letting of a £40 million Highways Maintenance contract back in 2008.

I’d say everybody concerned, whether externally investigating, still working for the council like Nigel Jenkins or Colin Hughes, or recently ££departed like Steve Maddox or Bill Norman or Ian Coleman or David Garry is as pure as the driven snow, and presumably the public will have had £100,000 + of their council tax money and £811,000 in gags and pay offs well spent on this and similar debacles – particularly that hefty 9 months’ chunk of salary channelled “into the coffers” of David Green while he was off work suspended through the summer.

Now move along please…  move along…  nowt to see…  But before you bugger off, here for your perusal is a link to…

An ‘independent’ Report by public servant Richard Penn

I haven’t read the whole thing yet, but what’s worrying about the sections of this report I have read is Richard Penn’s sloppiness – or is it deliberate?  He gives undue prominence to the rabid conjecture and unfettered, unevidenced opinions of senior Wirral managers (all close colleagues of David Green), whilst not bothering to quote at any length from the group of whistleblowers…

….so far, it’s looking like yet another stitch up.  Where the hell will this end up?

More links to news on Richard Penn’s background:

‘Tedious’ LinkedIn stuff

Excerpt: “With an annual pay packet of over £100,000, Penn was one of the highest paid Council bosses in the land. He is now tipped to pick up some lucrative part-time work with the Equal Opportunities Commission which is likely to see his retirement income come close to his former full time take-home pay.”

Excerpt: “…has acted as a Designated Independent Person (DIP) in a number of local authority statutory officer disciplinary cases”

Excerpt: “RESOLVED-(a) That the Council finds that Mr Davies is guilty of misconduct by virtue of:(i) his over aggressive behaviour to staff (he was abrasive,rude and confrontational on frequent occasions); (ii) his lack of judgement in the events of March 2010 in drinking and driving; and (iii) contributing to the failure to maintain the necessary trust and confidence by reason of his aggressive behaviour.  Those voting in favour: 37  Those voting against: 0

Excerpt:  “Richard Penn, an adviser to the Association of Local Authority Chief Executives, said: ‘Mr Cox has consistently rejected the district auditor’s criticism.  ALACE will continue to represent his interests in this matter and defend any action which his employer may decide to take against him.'”

I don’t think much of the Local Government Association’s grasp of appointing the right person for the job….  I wonder if they were right to recommend that Richard Penn, who spends much of his time defending the interests of senior council officers in trouble, is a suitable person to conduct a crucially important investigation into contract impropriety – by a senior council officer in trouble?

Apparently, Mr Penn, before he started defending Local Authority Statutory Officers, was a statutory officer himself – CEO at Knowsley Council ~ between 1980 and 1989.  A little birdy told me a loooong time ago that David Green also used to work at Knowsley Council.  I don’t know if this is true or whether David’s tenure coincided with Richard’s, but I’m checking it out.

If they are workplace colleagues from old it would put an entirely knew slant on this decision, wouldn’t it?

When I arrived at Wirral in Autumn 1996, David Green was in place at the District Labour Organisation (later the ‘Operational Services Division’), based in the Dock Road Depot in Wallasey.  He moved to the newly titled Director of Technical Services position (not ‘Borough Engineer’ note) I think in 2002, when Andrew Rhodes left.

But when did he originally arrive at the Dock Road Depot?  And where did he come from?  Can anybody help with this?

UPDATE   25th December 2012

Happy Christmas to everybody !

Peace on earth and good will to all men.  Particularly to David Green, Director of Technical Services, suspended back in March, but who has torn the wrapping paper from a very special present today.  He has been cleared of any prospective charges and, like so many before him, given a verdict of  ‘no case to answer‘.

Apparently the post of ‘Director of Technical Services’ was deleted from the structure recently and another new management structure has now come to pass.

So, as abusive Wirral Council staggers forward into the New Year, it’s yet another swift kick in the teeth to council tax payers, just to keep them in line, and a timely shot across the bows of any future whistleblowers…  people who may still have the ‘gall’ to raise serious concerns about their broken, basket case of an employer in the near or distant future.

If you are a potential whistleblower, working at Wirral Council and contemplating reporting either criminal conduct, blatant impropriety or serious malpractice – WATCH YOUR BACK !  In July of this year one of the anonymous whistleblowers involved in this case had his identity revealed and posted globally over the internetA n d   n o w   t h i s !

Wirral’s senior public servants,entrusted with preserving good governance post Klonowski, and promoting fairness and probity seem to prefer lurching back into acting as they always have done………..

i.e. With scant regard for integrity and the public good and instead, flying in the face of the fine words trotted out in the newly-robust and newly touchy-feely policies and procedures.

So I was wrong; David Green wasn’t gagged and paid off in a six figure sum like so many others before him.  He is returned to a shiny new as yet unnamed post with what looks like a clean bill of health.  And what of suspended Deputy Director of Finance David Taylor-Smith?  I don’t know, but will it be a similar fate?  No-one seems to know.

The update below this one speaks of a ‘Special’ meeting held last Thursday, at which the final item on the agenda was…

4.  Any Other Urgent Business Approved by the Chair.

I imagine this is where the dark deed may have been done.  It was announced today on BBC Radio Merseyside’s 9:00 AM news.  But that was it.  I waited, phone in hand on Christmas Day (how sad) to record the item on the 10:00 news, but it didn’t arrive.

I imagine a very practised and cynical opportunist, still safely ensconced in their miserable ‘communications’ role at the council, timed this announcement for release to the media, for consumption with our Christmas breakfasts.

It seems “No case to answer” is vying to become the dominant rallying cry for the gang of abusers still wielding the whip hand at woeful Wirral Council (see 7.1).

UPDATE   7th December 2012

A ‘Special’ Employment and Appointments Committee has been called for Thursday 20th December 2012.

This looks interesting because there are two senior officers still suspended: Director David Green (HESPE Contract suspension) and David Taylor Smith (suspended following release of Audit Commission’s report into the HESPE contract disaster).

Given the Council’s hyper-lenient treatment of:

  • Steve Maddox (£157,537)
  • Jim Wilkie (The council will pay more than £95,000 into Mr Wilkie’s pension fundIt is not yet clear if he will also receive three months’ worth of his £132,000 salary in lieu of notice
  • John Webb (£152,339)
  • Bill Norman (£151,416)
  • Ian Coleman (£82,500)
  • Howard Cooper (retired)
  • Rick O’Brien (moved)
  • David Garry (£46,584)
  • Mike Fowler (£109,496)
  • Maura Noone (£111,043)

TOTAL = £811,010

… and Anna Klonowski’s reluctance to lay any blame at the feet of councillors (and her very surprising reluctance to enquire into what happened at supported living accommodation in Balls Road, Birkenhead (“I don’t have the time”))…..

….what can we expect here?

It’s very close to Christmas.  Will Santa turn up with a bulging sack?  Definitely ONE TO WATCH.  Hopefully, pioneering members of the public will be allowed in to film it with their iPhones / Androids.

People who like to see senior abusers being paid off will be relieved to see that the Council Leader is in attendance.  Whilst publicly proclaiming, “We need get to the bottom of this, etc, etc”, if you check his and his colleagues’ histories, they’ve always  invariably voted in favour of allowing officers known to have been abusive, but with their identities concealed in the Klonowski Report, to leave, £weighted down and without too many questions asked.  Here’s the full list of attendees:

Attendee Role Attendance
Councillor Paul Doughty Chair Expected
Councillor George Davies Committee Member Expected
Councillor Phil Davies Committee Member Expected
Councillor Jeff Green Spokesperson Expected
Councillor Mark Johnston Spokesperson Expected
Councillor Adrian Jones Committee Member Expected
Councillor Peter Kearney Committee Member Expected
Councillor Ann McLachlan Committee Member Expected
Councillor Lesley Rennie Committee Member Expected

9th November 2012

I’ve been thinking back to that day in September 2003, when I returned to my work location at Bebington Town Hall for the last time.  I’d tendered my resignation from the Highways Department, and indeed from Wirral Council, and been invited to come in, empty out my desk and return whatever Council property I still had.  I also planned to say “goodbye” to colleagues and co-workers, something not on the official list of requirements.

There was a problem however with visiting the workplace, but not of my making.  During my 5 months’ absence on suspension (a neutral act), unnamed others had been taking the opportunity to generally trash my reputation.  And following an amateurish internal ‘investigation’ and the unsuccessful levelling of trumped up, gross misconduct ‘bullying’ charges, there were likely to be some embarrassed, unhappy individuals knocking about, feeling a bit done down and not wanting to see their vanquisher turning up unannounced.

In support of the fraudulent charges, I’d been told I was ‘out of step with everyone else’ – a default feature of the process of alienation otherwise known as ‘lodging a grievance’ at Wirral Council.  Admittedly, there may have been a grain of truth in this remark.  The everyday racist and disablist ‘banter’ certainly had me responding differently; either reaching for the car keys to get the hell out, or flaring up.

Maybe displaying a streak of independence, compassion or understanding for minorities, and some fire in your belly marks you out to any clique as ‘someone to be eliminated’.  I was later labelled ‘different’ at #QuackCWaC Council (neighbouring authority who ‘removed’ my statutory information querying rights) some time later, after lodging a complaint there.

I’ll concede this much ~ I always got by despite this, functioning and forming friendships, without the need for constant validation from managers and their sycophants, and succeeded in performing my job to a good standard.

Having a strong and supportive family and group of friends, I soon found I could breeze along easily without the shallow ‘support’ of paid up, on message, surplus to requirement drones, bending to the will of their seniors.

Despite the layer upon layer of crap that had been built up and thrown at me, there were still 2 or 3 stronger individuals left in the office *waves* who stayed committed to the facts throughout all this….. and who were astute enough to see through the bullshit.  The rest of the dumb hangers on, whether fully complicit or simply bystanding and keeping shtum, were happy to take the lies as read, not rock the boat and keep their own ambition of keeping out of trouble or climbing the greasy pole steadily on track.

So I arrived in work and parked up, noting that my UNISON shop steward’s car was there in the car park.  Not far away was the flashy number preferred by my line manager – and his manager’s car was there, parked in its numbered space.  A couple more colleagues’ battered jalopies were also in situ.

I strode in, works mobile and security pass in hand, ready to return them and prepared to confront whatever was awaiting me.  My ‘grandparent line manager’ greeted me nervously, looking a bit flushed.  He took my phone and pass and began to explain, as if it were needed, and as if he did this every day, how to empty the contents of my desk, then make myself scarce.

I then walked into an almost totally empty office.  It appeared my visit had  been announced earlier.  Despite all the cars, there was only one person in, who I’d worked with very happily for the last few years.  Of course, I had no idea what she’d been told or how complicit she may have been in my departure – probably not much, being further down the ‘pecking order’.  So this was left to one side and we had a good long friendly chat while I began to tip the contents of my desk drawers into a bin bag.

I did this at a very leisurely pace, expecting people to start drifting back to their work stations.  This was a busy office after all.  But nobody arrived.  So I went a bit slower.

Still…. no-one showed up.  Where had they all gone?   I continued to chat to my former colleague, but after about an hour and a half, I began to muse:  This is a ‘working office’, in the service of the public; there are jobs to do; street lighting columns (lampposts) to erect; old ones to take down…

These street lights wouldn’t look after themselves.  Yet my grandparent line manager (now back safely in his office) seemed happy to allow these public servants to come in, park up and hide somewhere else on site, away from their desks….

And that’s how it stayed.  Nobody turned up.  My grandparent line manager entered the office again and made noises along the lines “X has work to do… she can’t chat all day”.

So I left, and ambled back to the car park, my hypervigilant antennae noting that as soon as the door slammed the all clear was probably sounded and work on the maintenance and installation of Wirrals Street Lighting network kicked in, as normal.

2 May 2012

From: Paul Cardin

This FoI request was placed on 2nd May 2012, following the suspension of David Green, Director of Technical Services and head of the Highways Department, which occurred on 27th March 2012:

Some history

Back in 2003, David Green suspended me, when I was an Assistant Engineer, working for the Highways Department.  I’d been employed within the Street Lighting section at the Council since 1996 and had blown the whistle on long term irregularities attached to the carrying out of night time Street Lighting scouting rounds.

The Council presented my suspension as a ‘neutral act’.  However, very soon, a large recorded delivery envelope thudded onto the doormat.  It turned out there was to be an internal investigation and following this, the council levelled trumped up disciplinary charges, accusing me of a campaign of ‘bullying and harassment’.  Strangely, nothing had been recorded about this behaviour at the time it ‘occurred’ – probably because it hadn’t occurred.  But many months on, it seemed to me now that somebody’s creative juices had been flowing.  This pointed towards collusion between unknown parties, whilst I was safely out of the way.  The charges were poorly-evidenced at best, and magicked from thin air at worst…

My own original allegations regarding impropriety with public money were not acted upon and were quickly forgotten.  I suddenly found myself up to my eyes in refuting these fraudulent charges.  In the months spent away from work, I’d called upon my union, UNISON to help me in my predicament.  I’d provided my UNISON ‘representative’ with a dossier / diary of all the nasty stuff that had been going on in the lead up to my suspension, all carefully recorded with incidents, times, dates and locations.  Some of the detail of this was very unpleasant, even disturbing and I won’t go into that here.

When I handed this evidence across, I took the precaution of numbering the pages and glueing some of them together at the top.  This proved to be one of the the shrewdest moves I’d ever made.

When I turned up unannounced at the UNISON offices in Birkenhead one day to ask why they’d done nothing, the ‘representative’ tried to fob me off with empty excuses.  I then demanded the return of the dossier I’d left in his possession.  Sure enough, the pages were still glued together as I’d left them, several months before.

No-one had bothered to read it.

I decided to join what was then the Transport & General Workers Union (now UNITE) after being invited by the full time North West Regional officer (now sadly no longer with us).  He was a good friend of mine, a man of principle, and I’d known him since my schooldays.  He was disgusted by what the Council had done and was only too willing to offer guidance and support to me as a new member.

In summary, he wiped the floor with them.  When the September hearing arrived, attended by David Green, who was assisted by the then Head of Human Resources (and former UNISON full time officer), my union rep raised some very pointed questions.  He set about blowing the council’s counter-case full of holes, and enabled me to fill in with the facts, shoot it all down in flames, and finish them off.  Ultimately, David Green was forced to withdraw the falsehoods and to find another job for me at the council.  This was made all the more difficult by the fact that my reputation had been savagely trashed from within.

Certain middle managers who knew me, whom I’d worked under and who had until now valued my professional input, had suddenly located their yellow streak, closed ranks and fallen into step behind the spurious bullying accusations brought by their seniors.

Unknown to the council, while suspended, I’d naturally been spending my time busily looking for a job elsewhere – anywhere – to get me away from what I now regarded as something of a ‘hell-hole’.  This succeeded and I was delighted to move to a much better paid position in the private sector.  The timing of this had been exquisite for me – and for my long-suffering but very strong and supportive family!!

The new organisation was fairly local, but a world away from Wirral Council, being a professional and forward looking outfit, with none of the seedy, cloying, sexist / racist undertones, and certainly not steeped in unaddressed cultural backwardness.  In fact it was a very refreshing change.  Here was a modern workplace, where I didn’t need to spend all my time ‘looking over my shoulder’.  My input was encouraged, valued and well-rewarded.

Meanwhile Wirral Council, with its dreamt up allegations now lying in tatters, struggled on, promising to find me a position that didn’t involve a pay cut and further detriment.  While they did this, I took great pleasure in playing my trump card and resigning…… not forgetting to request a sum of back pay for work I’d done on Street Lighting scouting rounds that the council hadn’t paid me for – which didn’t go down too well with David Green.

Although many sister councils have now farmed out this sort of work, Street Lighting scouting rounds continue to this day to be carried out internally by Wirral Council officers.

Well, that’s at least some of my personal history in these affairs.

But to bring readers back up to date with the present…

There have been many twists and turns since David Green (whose brother used to work for COLAS) was suspended.  It started becoming clear that there were very serious and very clear failings within the HESPE contract that was awarded to COLAS back in late 2008.  This time around, there were a number of whistleblowers on the side of the truth, who’d turned to Frank Field after receiving short shrift and a predictable lack of support from inside the Council and then from the Audit Commission, who were consulted in March 2009.

Their allegations were compelling, serious and detailed – but the inertia that greeted them was profound and disturbing.  Frank Field for his part recognised that they were being fobbed off and seemed very appreciative of their contribution.  He was regularly quoted in the press, praising them to high heaven ~ a tactic which made some people, including me, feel very uncomfortable.  The public were not surprised when they very quickly saw Mr Field gushing in the media about the performance of the ‘new’ Labour council (the one that had tried and failed to cover up / minimise learning disabled abuse) and soon, the alarm bells began to ring:

The conclusion here is that politicians. simply. cannot. be. trusted.

I’m not going to go into forensic detail regarding the ins and outs of this situation, but it seems that at every turn, the council and its associated public ‘regulatory’ bodies have been found wanting.  Whether it’s Wirral’s so-called Internal Audit (formerly run by David Garry) and their bizarre act of giving “3 stars” (a ringing endorsement in anyone’s book) to the highly-flawed HESPE contract; or the contribution of District Auditor Michael Thomas, producing an initial review which very belatedly (September 2010) found little wrong with the HESPE disaster, before being compelled to ‘look again’, only to find in June 2012 after the imposition of delay upon delay by Wirral Council  that David Green ‘probably broke EU rules’ and much more…  link: ;or the Serious Fraud Office turning Frank Field’s request down and failing to investigate the conduct of the contract.

Private Eye, Issue 1326 ~ 2nd Nov 2012

Here, updating us further still, is a clip from the current issue of Private Eye – unlucky for some, page 13 – Rotten Boroughs:

Wirral Council are making a habit of appearing within these pages

Opinion of Senior Counsel, Hugh Tomlinson QC, on Freedom of Information “ban” by Cheshire West and Chester Council –

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Following Cheshire West & Chester Council’s hideously misconceived “ban” on my statutory FoI and personal Data Protection querying rights, the time has come to release the opinion of Senior Counsel Hugh Tomlinson QC, who has granted his permission.

This “ban” lasted for 20 months, between October 2009 (my leaving date) and June 2011 – original request here – It took an instruction to possibly the country’s most senior privacy lawyer for the council to realise its behaviour was ultra vires and it had gotten too big for its little boots.

The “ban” flew in the face of the council’s own internal Freedom of Information and Data Protection policies (and certainly every other council’s policies up and down the country).  These are always phrased to embrace accessibility, to promote openness and transparency and to speak up for the free and uninterrupted flow of information.  However, the Council’s most senior Data Protection person on site, who understandably had a large hand in drafting Council policy, admitted to me that he was “never consulted” over this defensive and retrograde step.

Neither was this “ban” democratically scrutinised by elected councillors – possibly because there was a danger elected officials may have taken their role seriously and “raised a red flag” upon spotting the folly of it all.

So it became the private, back-office, unscrutinised work of the monitoring officer, Simon Goacher, and his “team” – as trotted out in an email, heavy on the “flannel”, from Councillor Alan McKie, chair of the Staffing Committee.  Despite the council’s lofty public claims to “democratic accountability”, when a “ban” on freedom of information and data protection became a necessity, the legitimate and compelling public interest never really got a look in.

The council have now claimed, in response to a subsequent FoI request of mine that no information is held” on this subject.

With that, the obvious question arises, “Why on earth did they feel the need to do it in the first place?

And now, into the mix comes Hugh Tomlinson QC’s opinion, which gives clarity, and makes an important distinction between historical and future requests.  For me, the key statement is made in paragraph 5:

Opinion of Counsel

The Council failed to give any assistance by clarifying the meaning of the clause, preferring instead to cave in enigmatically.

With the prospect of serious litigation being mounted, the council declared they “did not accept the provisions within the agreement were unlawful”, but it was all a long time ago, and they were now “happy to confirm that [I] was not prohibited from making requests under the [FoI and DP Acts]”.

I’ve interpreted this as the Council running away, taking their little ball with them, and turning back to shout, “We were right all along anyway….”

My reading of counsel’s opinion is:

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer, specifically related to the historical circumstances which have led to an employee’s departure, that is OK.

If an employer proposes a compromise agreement with an FoI / DP gagging clause which seeks to prevent an employee or ex-employee from making FoI / DP requests of this employer (or any other employer) in the future that is not OK.

The fact that the agreement is signed in the presence of independent legal advice appears to have some bearing on the former, but not the latterwhich appears to maintain that contract law trumps statutory rights.

But I am NOT a lawyer.  Any comments on this subject are most welcome…

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UPDATED – Concealing malpractice / enabling abuse with a Compromise Agreement / Gagging Clause

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FoI and Local Authority Gagging Clauses

Some years ago, a council employee, in dispute and soon to lose his job, opted to sign a compromise agreement.  The document and its terms were placed before him, as a ‘full and final settlement’.  All arrangements were funded by the employer; independent legal advice was given, and the solicitor’s signature secured.  All legal requirements had therefore been met.  The employee’s signature on the dotted line would forfeit his right to an Employment Tribunal, along with the option to pursue any existing or future legal claims against the employer.  All appeared to be in order and the employee’s pen hovered.

But an extra clause had been inserted, compelling him to forgo his right to submit any request under the Freedom of Information Act 2000 or the Data Protection Act 1998 – from that day forward – and not apparently restricted to this employer.  This very particular “gagging clause”, perhaps in use for the first time, had been devised by the local authority’s legal team.

It was a very difficult decision to make even without this, and much rested upon it.  In addition to the loss of his job and the personal upheaval, there was now an underlying legal poser to wrestle with, “Can I successfully contract out of my FOI / DP information request rights?”

But the deal was soon done, and a promising career was cut short, the pain eased slightly by the payment of a small ‘redundancy’ amount.

Such was the life-changing power in the hands of a consensus of council top brass, brought together for the closing chapter of a bitter and entrenched dispute, spanning almost 3 years.  With a failed raft of trumped up disciplinary charges recently behind them, careful steps were now being taken to save face and reach agreement.  Confidentiality shrouded everything.  The employee, a family man with young children, knew he wouldn’t be welcomed back.  Blowing the whistle had lost him his livelihood.  He’d faced a stark choice: sign here, and accept what’s on offer, or sign there, fortnightly at the job centre.  Concede, or take your chances at an employment tribunal in the New Year, where the outcome will be a lot less certain.

And come January, once the situation had calmed and the adrenalin levels had dropped, another question came to the forefront – “What would the legal consequences be of an approach to the council for information?”

This was where the Information Commissioner’s Office (ICO) first went onto the record:

“If your former employer refused to deal with your requests they would be likely to be in breach of the above legislation……. However if you exercise your information request rights there may be consequences such as legal action for breach of contract. Whether the clause you mention is a fair contract term would depend on the particular circumstances involved and the nature of the agreement you signed.”

The special gagging clause in use here had provided a unique twist, pressing the ICO into declaring an unusual, double-edged stance.

I decided to conduct some ‘WhatDoTheyKnow’ research into this, which began when snow covered the ground.  I approached 345 English councils, requesting annual totals for compromise agreements and FOI / DP related gagging clauses – drawn up in circumstances of dispute, grievance or whistle-blowing.  I discovered a rising trend with time, and to date, have unearthed 4,410 agreements, equating to an average of 15 per council over the last 6 years.  As for the clauses, unlike the January 2011 snow, they were extremely thin on the ground.  Where they do exist, they’re a ‘fail-safe’, used to supplement the one in general use – which follows a more established path: to deter signatories from discussing their workplace woes at career end and beyond.  There is always a threat of “clawback” – whereby an employee breach would involve the employer suing for the return of the full amount received in settlement.  In a victory for one-sidedness however, the penalty for a post agreement employer breach remains elusive, possibly mythical.  The only parties generally permitted to know about the existence and wording of such agreements are the employee’s direct family, professional advisers, and the tax people.

There is at least one agreement however, where the gagging clause in use pushes the bounds of confidentiality to a startling extreme.

Back in November 2008, a social worker (let’s call him Mr X) blew the whistle on his council employer.  After being let down by the Audit Commission and CSCI (later the Care Quality Commission), he turned to the press.  His gagging clause was specific and cost the council £500.  They also handed over £44,500, and sought to prevent him from discussing with ANY third party, an entire range of whistle-blowing concerns.  The detail of these was shameful: financial abuse of disabled tenants – amounting to the unlawful deduction of £700,000+ from many of the council’s most vulnerable residents over several years; an ongoing refusal by senior managers to acknowledge that the practice was unlawful and should cease, and a campaign of bullying and abuse of power.   The council’s behaviour towards its own tenants (four of whom have since died) has since been ruled as disability discrimination by the Equality and Human Rights Commission.  An apology was also issued to Mr X for proven management bullying and abuse of power.  Worryingly, if he had ‘stayed bullied’, and not breached the gagging clause by going to the press, the public would never have known of the scandal; of the council’s failure to act; its lurch to secrecy; the public money squandered, and the protection and concealment that was gained by drafting a compromise agreement.  The public interest would have been so neatly circumvented.

Upon signing such an agreement, from the employee’s perspective, an onerous double layer of security descends.  They are told on the one hand, that they cannot take a specified action, and on the other, that they cannot reveal the existence of the agreement itself.  The effect: a hidden pact, funded by public money, draws a veil over the placing of a dubious gag, and potentially, details of the most deplorable behaviour.

It’s neat, it’s effective, and it’s going on everywhere.  But how many information governance or legal professionals in the public sector would regard such an approach reasonable, lawful, enforceable, or morally justified?  Is the levelling of the FOI / DP gag ultra vires?  Does the tactic sit well with publicly-funded bodies, amid their ongoing claims to openness and transparency?  Or is it an impulsive lunge towards institutionalised reputation management, done to conceal at all costs, and to make damn sure the employer emerges unscathed, with whatever’s hidden never seeing the light of day?  In the Mr X case, was there a collective sigh of relief as the ink dried on the paper, and as foul conduct and a multitude of publicly-funded sins were swept under the carpet?  A recent review undertaken by an independent consultant found the council involving itself in learning disabled abuse over a protracted period.

Central Government, the unions and most regulators regard compromise agreements and gagging clauses as justified, through the need to cut legal costs, avoid tribunals, and conserve public funds.  The process is often dressed up as ‘supporting employees’.  With free legal advice on tap, how can employees claim ignorance of the process and its consequences?  They can walk away with a financial settlement for their troubles, and ‘grasp the opportunity for a fresh start’.

But this can be at extreme personal cost.  Mr X had his life turned upside down, and was hospitalised due to the stress he had been placed under.  Not surprisingly, he holds a different view, “Compromise agreements should only be used in business sensitive cases.  They should never be used to suppress issues in the public interest.  They are consistently used as a reputation management tool and are an abuse of power.”  In Mr X’s case, the gag had a thoroughly chilling effect.  Such was the employer’s fear of exposure, the perfectly reasonable step of seeking legal advice would have breached Mr X’s agreement.

In June 2011, under threat of litigation led by Hugh Tomlinson QC, the council which had ‘opted out’ of its FOI / DP obligations backed down and withdrew the gagging clause, restoring the ex-employee’s rights.  The monitoring officer responsible for the ‘ban’ has moved, perhaps where he belongs, into the private sector.

Mr X’s ongoing battle with his council adversary and former employer has now moved to the ‘accountability’ stage.  A long awaited 250 page report, drawn up by the independent consultant and costing £1,000 per page has now been placed in the public arena, albeit anonymised to protect those potentially culpable.  However, the council, displaying a rather loose grasp on the true meaning of ‘accountability’, was not prepared to discipline two senior Social Services officers found to be at fault.  Instead, despite acknowledging years of learning disabled abuse, the council pre-empted the report’s release by allowing the two to depart their posts quietly and by ‘mutual consent’, probably under compromise agreements, probably “paid off” and potentially in receipt of positive or neutral work references to furnish to any future employers.

These two officers received an equal share of £220,000 of public money.  Many people believe this was paid to buy their silence, keep them ‘on side’ and prevent them from dropping very senior personnel into hot water.

Paul Cardin

Twitter: @eVirtual_Assist

1st October 2012

Link: Damning Internal Auditors’ report on Metropolitan Borough of Wirral’s approach to “Compromise Agreements”.

Within this post, there are some striking similarities to the content of the above article.

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Gagging Clauses – Comment added to Opendata Consultation – October 2011

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The following comment has been added to the Government’s Opendata Consultation (recently ended):

“Two UK Councils have implemented a means of preventing ex-employees from exercising their future FoI / DP querying rights.  These were drawn up within compromise agreements following internal disputes.  These are Cheshire West and Chester Council, who have stated they will use the ‘ban’ again and Brent Borough Council.

The Information Commissioner has confirmed that the practice does not breach either Act.  No breach is committed because the recipient of the ‘ban’ will not make a request for fear of being pursued through the courts by the ex-employer.

The recipient of the ‘ban’ would need to make a request, have it turned down by the data controller quoting the ‘ban’ as the justification for withholding information.  The ICO would then step in, because its own opinion is that the only means of withholding data is through an exemption written into the Act.

However, there is a loophole waiting to be exploited here. Councils who have a lot of ‘dirty washing’ they don’t want to hang out in public, could use this tactic as an ongoing means of concealment.  There is even scope for them to feel emboldened, and to continue behaving immorally or unlawfully, because they have an effective means of covering up.

I feel the Act needs to be changed or a judicial review should be sought to prevent this happening.

At the moment, we have a situation where councils are free to claim a commitment to openness and transparency, whilst breaching their own internal data and information policies and breaching the spirit of the FOIA and the DPA.”

Thu, 27/10/2011 – 10:52 — Paul Cardin

More here: (Page 6)

And here:

And here:


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Use of the FOI / DP “gagging clause” – some UK Local Authority quotes

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Actual UK Local Authority quotes on the use of FOI / DP related “gagging clauses”

Both Cheshire West and Chester Council and Brent Borough Council have used a “gagging clause” within a compromise agreement to prevent former employees from getting at their information after leaving employment.  Cheshire West and Chester are fully prepared to do it again in the future, whilst Brent insist theirs was a “temporary measure”.

The Information Commissioner regards this conduct as “likely to be in breach of the Act”.

Regardless of the apparent stripping away of statutory rights, the Local Government Association is firmly on the fence on this issue, stating that it’s entirely a matter for individual councils.

The following information was volunteered into the public domain – and represents the more revealing opinions of some of Cheshire and Brent’s fellow LGA members:

“We do not have any of these. We do not see how someone could by
a compromise agreement deprive themselves of their statutory rights.”
Halton Borough Council

“No staff (past or present) have signed any document purporting to limit
their statutory rights to information under the Freedom of Information
Act or Data Protection Act nor would we consider asking them to do so.”
Uttlesford District Council

“Please note that a compromise agreement bars an individual from making a
legal claim in exchange for money. This includes claims under the Data
Protection Act 1998 (I believe S13 would apply), and there is a term
within our agreements which covers this – but this would not prevent
anyone from making a subject access request under S7, and this right
cannot be removed.”
West Berkshire Council

“No employees have agreed nor indeed would we even think of requesting
them to forgo their right to approach the council in the future with
Freedom of Information and/or DPA Subject Access requests.”
Harrogate Borough Council

“As far as we are aware, none of the compromise agreements we have entered
into have sought to remove or restrict a person’s rights to make FOI or
subject access requests and we are doubtful a compromise agreement would
be effective in that respect in any event.”
Malvern Hills District Council

“In answer to your query, there have been no barriers placed in the way
of any of the individuals concerned in relation to their legal right of
access to information via any of the information access legislation.”
Harborough District Council

“I am not aware that there are conditions in any of these agreements restricting the right of an individual to approach the Council in future for information via Freedom of Information and/or Data Protection. Indeed I would query whether any such conditions would be binding. I have read the 1998 agreement and the two agreements in 2008. In none of those agreements is there anything to be found that would restrict the right of the individual (at a future date) to access information via either Freedom of Information and/or Data Protection. This is as to be expected.”South Ribble Borough Council

“I cannot imagine a situation whereby this or any other council would encourage a signatory to a compromise agreement to forgo their statutory rights regarding FOI / DPA furthermore if any authority tried to do this I suspect it would be both unenforceable as an agreement and ultra vires (not within the powers of the council and therefore potentially unlawful).  An individual has the right to access their own information via DPA or other information via FOI.” South Norfolk District Council

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#FoI Request 005/11 ~ Cheshire West and Chester – Register of Senior Officers’ Personal Interests

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Senior Officers – a Requirement to Declare and Register Personal Interests

This request was updated by Cheshire West and Chester Council on 30th August, with some very good news.

My internal review has been upheld.  The council had failed to successfully apply a Section 22 exemption, as expected, and their desire to hold onto the information until October collapsed.  They have now offered to produce it within 35 days (October – lol).  As the scope was reduced significantly, I’ve asked for it within 14 days.

But, it’s not all over.  They are still claiming that it’s completely up to the council how the information is drawn up and that the ICO’s involvement in John Greenwood’s Bolton case, applied to Bolton alone.  The message they want to send out to the Cheshire public is that the ICO’s landmark decision on Bolton has no bearing upon what goes on in Cheshire (!)

I’ve reminded them of their public duties, and the requirement to operate accordingly, by applying checks and balances, and for elected members to scrutinise these areas on behalf of the local electorate.  Full democratic scrutiny of policies is an important area that they appear to have fallen down on in the past (see post regarding FoI / DPA ban).

So, despite the fact Cheshire West have agreed to publish (with redactions), they’re not yet putting out the full information – the details that the public want to see.  An appeal to the Information Commissioner is currently being drawn up.

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Simon Goacher to depart #QuackCWaC Council – simpering leaked email doing the rounds

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10th December 2012

Word reaches me that Simon Goacher, #QuackCWaC Head of Legal and ‘Democratic’ Services, he of the undemocratic, unscrutinised FOI / DP ban (see below) that they sought to impose on me when I left the council back in 2009, is himself leaving #QuackCWaC for pastures new.

He’s bailing out of the public sector and into the private, to become Head of Local Government at Weightman’s Solicitors.

Ok for some?  Presumably he’ll be onto a good number with a pay rise to match.  A simpering leaked email is now doing the rounds, originating from the offices of the Chief Executive, Steve Robinson, bemoaning the council’s ‘loss’.

However, this can only be positive news for the brunt of #QuackCWaC‘s disputing employees (presumably there will be many) as they are less likely to have their statutory Freedom of Information and Data Protection querying rights ‘removed coercively’ by Gotcha’s replacement.

I wonder whether abusive Wirral Council’s former Director of Law Bill Norman (£150,000 parting gift gratefully accepted from long-suffering council tax payers in October) might see an opportunity to repeat Gotcha’s 2009 move and make the short hop across to leafy Cheshire?

Hmmm.  Anyway, the fawning email tells us that the Gotcha ‘team’ was “Shortlisted for ‘Excellence in Democratic Services at the MJ Awards’.

Excellence!  I doubt the nation’s leading privacy lawyer, Hugh Tomlinson QC, would recognise any merit in this shortlisting, given Gotcha’s awfully-contrived legal horrors (see below), which traversed the great man Tomlinson’s desk in early 2011 !

In October 2009, Cheshire West and Chester Council sought to ban me from accessing information and personal data.  They now appear fully prepared to do this with more ex-employees in the future.  If they get away with it next time, it will be achieved once again by ‘removing’ selected individuals’ statutory Freedom of Information and Data Protection querying rights.  The ‘gag’ will be drawn up within a compromise agreement.

When the bond of trust has broken down between employer and employee, in circumstances of dispute, grievance or whistleblowing, a compromise agreement is an “agreement” in name only.  All recipients (regardless of any proven complicity or guilt), when managed correctly through the process, will be given two ultimate choices.  Take what’s on offer and lose your livelihood, or begin the process of bringing a claim to an Employment Tribunal …and lose your livelihood.  It’s rather like walking the plank.  You either make a V-sign to your tormentors and jump, taking your chances in the open ocean, or you turn back and get quickly run through with a cutlass.  More details here:

Cheshire West’s ongoing use of the FoI / DP gagging clause flies in the face of a number of dubious claims, placed in the public domain – one of which is their ongoing ‘commitment to openness and transparency’.  The tactic also seems to be a direct breach of their own FoI / DP guidance.   Nowhere within the published FoI policy document or Data Protection advice is clearance given for officers or councillors to impose such a ban.  My own emailed attempts to contact the County Archivist in charge of Data Protection are not gaining a response.  Upon ringing him to ask reasonable, if searching questions, I was quickly told that my own gag was carried out without his involvement.

Which left me to ponder – was it wise for directors and legal advisers to take a step into the unknown, without consulting the relevant on-call professionals, such as the head of Data Protection?  Cheshire’s Head of all things DPA has now conceded he was left on the sidelines, whilst Senior Officers acted without his knowledge.

Unsurprisingly, this salaried employee, with many decades in the profession, maintains his loyalty and refuses to condone or condemn what would strike most people as impulsive and irrational conduct.  I’ve conveyed my disappointment to him, and reflected that if left unchecked, this behaviour could leave an indelible stain on his and his fellow senior officers’ perceived competence and professionalism.

More importantly, from the wider public interest standpoint, although these bans are carried through to a conclusion, their origins are uncertain.  There appears to be no transparency, and there was no scrutiny, let alone accountability.

The Information Commissioner is rightly concerned about a potential contravention of the Human Rights Act, and has aired his concerns publicly, stating that the only means of lawfully preventing access to information is via the exemptions written into the FoI Act.   He’s further clarified on the one hand that the council is likely to be in breach of the Act, but on the other, any breach of the gagging clause may have its own consequences for an individual who acts in defiance of the gag.  The person could find themselves being vigorously pursued through the courts in response to the simple act of requesting information.

The Information Commissioner’s Office have stated that they cannot sue for a breach of the Act unless and until one occurs i.e. when a ‘banned’ individual makes an FoI or DPA request in defiance of their gagging clause.  Such an action may also be taken in defiance of their own legal advice (as it would have been in MY case – my solicitor endorsed my own position of NOT breaching the unlawful gagging clause).  The only conclusion a reasonable person would arrive at is that once such a ‘ban’ is enforced, it’s highly unlikely that the material being desperately protected by the public body enforcing it, would ever see the light of day.  The pressure comes from ALL sides to put up and shut up.  In other words, here is a loophole for public bodies to exploit, and full licence to drive a coach and horses through their own policies, procedures and FOI / DP obligations!

On the face of it, the tactic appears threatening – a large club over the head of the departing employee.  That’s my opinion.  But the research I’ve been conducting has uncovered even more disturbing opinions – from other councils!  Upon receiving and examining the contributions of several of Cheshire West’s LGA colleagues, it seems the banning tactic is seen as foolhardy, and the issuing body reliant upon an unenforceable contract clause.  Ten English councils have questioned the council’s heavy-handed and ill-considered approach.  Some state it’s not possible for an individual to willingly contract out of their FoIA / DPA rights.  Others go further, saying they would never contemplate using it.  We’re left with the impression that the muzzling of former staff amounts to a half-baked, and retrograde step, but one which enables controversial, reputation damaging information to be concealed from public view.

My own personal ban (not breached in 20 months) was lifted in June 2011, thanks to my long term perseverance and the direct, personal involvement of Hugh Tomlinson QC.  But the Council Leader and the Head of Legal and Democratic Services remain unmoved.  They continue to hold out, insisting that in my case, a perpetual ban going forward, seemingly across all UK public bodies, was a balanced, considered and lawful approach:

Cheshire West and Chester Council believe their banning tactic to be lawful

Prior to this partial climbdown, the Leader of the Council, Councillor Mike Jones had already thrown his hat into the ring.  He stated in February 2011 that following ‘balanced consideration’, the Council was prepared to use the tactic again in the future.  Ever since the day my own personal ban was lifted, Councillor Jones has not been in touch to withdraw or modify the position he’d already set out (below).

I’ll therefore assume it still stands, and is testament to Cheshire West’s unheralded, unpublished, undemocratic, “on the hoof” policy making.  (Please click on the image to magnify and read in a new window).  Apologies for the rambling nature of the correspondence:

UPDATE   18th August 2012

Back in March of this year, I contacted Cheshire West & Chester Council’s Labour leader Justin Madders, in order to gain some more information on how this FoI / DP gagging clause had come to pass; whether it had received any scrutiny and which Council committee may have considered and approved such a measure.  He told me that the item never received any committee scrutiny or approval, and asked me to email Councillor Alan Mckie, Chair of the Staffing Committee:

From: Paul Cardin
Sent: 16 March 2012 23:26
To: MCKIE, Alan (Councillor)
Cc: MADDERS, Justin (Councillor); JONES, Mike (Leader of the Council); GOACHER, Simon
Subject: Cheshire West Council, opting out of its Freedom of Information and Data Protection obligations

Dear Councillor McKie,

I’ve been in touch with Cllr Justin Madders, who passed on your name as chair of the Staffing Committee.

He tells me that you were not prepared to put this item on the agenda of the committee.  Why not?

You did provide verbal assurances that the council wouldn’t use the anti-democratic Freedom of Information / Data Protection gagging clause again.   Most sane people with at least a measure of integrity, believe it should never have been used in the first place; because it circumvented proper scrutiny and flew directly in the face of your own and ALL other public bodies’ published policies.  Is it embarrassing to councillors that they may have been deliberately duped or by-passed?

I am currently trying to find out what records the council has with regard to this issue and have been told that there are none, which is frankly preposterous, as it doesn’t instil confidence in the council officers’ competence in the minds of the Cheshire public.  Although it’s not really surprising to me having been a victim in the past to systematic malpractice and concealment:

You may note that the council has made a public statement insisting that such an anti-democratic tactic “requires no scrutiny”.  Is this your recollection as chair of the Staffing Committee – that this is the case, AND that nothing was ever recorded?  Did the measure ever cross yours or the chairperson’s desk in summer 2009?  Were councillors happy to wash their hands of it, and for council officers to be given free rein to end livelihoods, level trumped up disciplinary charges, apply duress and aim to damage / remove a person’s human and statutory querying rights?

Please can you provide me with a written assurance that the council will not use the gagging clause again in the future?  Currently, existing employees and potential honest whistleblowers, acting in good faith and the public interest, could be in danger of being muzzled and suffering through immoral, illegal or compromising behaviour on the part of senior officers.  I’d appreciate it if you could act in the public interest and remove the threat forthwith,

Many thanks,

Paul Cardin


Alan McKie’s response:

From: MCKIE, Alan (Councillor) []
Sent: 20 March 2012 20:57
To: ‘’
Cc: JONES, Mike (Leader of the Council)
Subject: FW: Cheshire West Council, opting out of its Freedom of Information and Data Protection obligations

Dear Mr Cardin

Thank you for your e-mail.

I considered the request that the matter be put on the Staffing Committee Agenda but did not feel that it, in the circumstances, it was necessary to do so.

Elected members do not get involved in disciplinary issues for staff other than Chief Officers or statutory officers.  Operational management and disciplinary action in relation to individual officers is a matter for Chief Officers.  Elected members become involved only at the appeal stage.

I have spoken to the Head of Legal and Democratic Services who advises me that the compromise agreement was completed by staff in his team together with colleagues in Human Resources and the Community and Environment Directorate.  As is a requirement you received independent legal advice on the agreement and neither you nor your legal adviser raised any objection to the clause at the time.

The Head of Legal and Democratic Services advises that the circumstances of using such a clause would be extremely unusual and he does not foresee any circumstances in the future where it is likely to be used.  Each case will be considered on its own facts and on its own merits.

I do not consider that placing this before the Staffing Committee for consideration at this point is necessary for the following reasons;

1)      This was an isolated instance of such a  clause being used;

2)      It happened when the authority was fairly new and occurred some time ago

3)      On review by senior officers it was agreed that the restriction would be lifted;

4)      There is no evidence that the authority intends to use it again;

5)      Staff disciplinary issues and compromise agreements are operational matters for Chief Officers and members should not interfere   in their operation;

6)      There are safeguards in place for officers entering in to compromise agreements including the requirement that they seek independent legal advice; and

7)      There are further additional safeguards in place for whistleblowers and the Council has in place a clear whistle blowing policy.

I hope that this deals with the issues which you have raised.


Alan McKie

Alan McKie Cllr.

Weaver and Cuddington Ward

Cheshire West and Chester Council

Tel: 01928 724960

Mob: 07971832467




None of the contents of the above email reassures me that they won’t use this ban again, as there are ‘get outs’ peppered throughout it.  When their backs are up against the wall – and they are found to have been involving themselves in malpractice or breaching their own internal policies and procedures, which all risks being exposed, you can guarantee that the thought will cross their minds; “Hmm, it worked last time, for 20 months, and we eventually got away with telling him we don’t hold the information in response to his eventual FoI request.”

Not wanting to be exposed as dishonest at an industrial tribunal, along with the reputational damage they would incur, my view is that #QuackCWaC will indeed use this ban again, coupled with the brandishing of a fat wodge of other people’s money to sweeten the deal.

It’s the kind of miserable conduct engaged in by those “lacking a backbone”; and it’s now just a matter of time before they come up against a whistleblower with guts, spirit and a bit of fight in them…

If you read item 5 of the recently released Hugh Tomlinson QC opinion on this very subject, which makes certain recommendations on the legality of #QuackCWaC’s past conduct, the chances are they and others may feel emboldened anew!

Comment posted to David Higgerson website from November 2011

Cheshire West and Chester Council and Brent Council have also successfully ‘banned’ ex-employees (one was a whistleblower – me) from making Freedom of Information and Data Protection requests into the future. This was achieved within a compromise agreement. In total, the ‘ban’ lasted for a period of 20 months between October 2009 and June 2011. It took the intervention of Hugh Tomlinson QC to make them think again.

However, the council leader and monitoring officer have been in touch to tell me that they feel the measure is ‘lawful’ and they intend to use it again in the future as and when the circumstances arise. The problem is all professionals I’ve spoken to (except one) in the Data and Information field regard its use as regressive and unlawful, furthermore I don’t believe it’s ever received democratic scrutiny before any of their committees, which makes sitting councillors all seem rather redundant where data / info / transparency / openness is concerned.

Speaking of ‘redundant’, the Council’s Data Protection Officer informed me that he wasn’t made aware of the tactic either, although sadly he was unable to condone or condemn it, and couldn’t find it in himself to be supportive, remaining firmly ‘on the fence’ – which I personally found extremely disappointing.

The problem here is that the Information Commissioner’s Office is unable to police such behaviour, because the Freedom of Information Act is not breached until a ‘banned’ person breaks their gagging clause by lodging an FOI query or a DPA subject access request. When the council uses the gag as justification to withhold information – something which I never did – the ICO can act. The particular measure which deters people from doing this is a ‘large club over their head’ in the shape of a threat by the Council to pursue them through the courts should they breach the clause, for the return of any settlement money paid during the process of full and final settlement.

The upshot of all this is that, because the superior legal advice I received was I did the right thing not to breach the clause, the tactic works, and cleverly exploits a loophole. The council’s motivation for pulling out all the stops to use it is that it succeeds in concealing and protecting the reputation of the Council. Any immoral, unlawful or compromising behaviour indulged in during a dispute remains safely under wraps. It’s not nice and I imagine there are many members and officers who would not want to be associated with such sordid and unwholesome behaviour, regardless of the fact that it may have saved some money in going to tribunal – the reason usually trotted out when justifying the cover up of deplorable conduct.

Another problem is that the position of ‘monitoring officer’ is a powerful one. Such officers enjoy special privileges along with heads of paid service and finance, which make them very difficult to discipline or remove, however in the case of Cheshire West and Chester’s Simon Goacher, I feel that any extended powers he has may have been misused or even abused in this case. After all, they don’t give him the freedom to drive a coach and horses through his internal FoI and DP policies, let alone the FOI Act.

Because there’s nothing in place to stop it, councils are strapped for cash and because some people in public life can behave crookedly, there’s now a danger that this sort of thing could mushroom out of control. Although I don’t like the word ‘banned’, with all its negative connotations, I hope one day to update your blog with the welcome news that this sort of behaviour, which would not look out of place in Burma or North Korea, has finally been outlawed.

There’s more info on this here:

And an article on gagging clauses and compromise agreements here: