Simon Shaw was quick off the mark with his letter to the District Auditor. I think that events will prove that he hit the bulls eye with his criticism.
Councillor Simon Shaw
66 Liverpool Road, Birkdale, Southport, Lancashire, PR8 4BB. Tel. 01704 565546
29 October 2007
Mr Julian Farmer,
Dear Mr Farmer
SEFTON MBC: DECISION TAKEN BY FULL COUNCIL MEETING 25.10.07 TO AFFORD THE CHIEF EXECUTIVE REDUNDANCY AND EARLY RETIREMENT
Although I am Chair of the Audit and Governance Committee, I am writing to you in a personal capacity as a member of Sefton Council to voice my very serious concerns about the way in which a decision was arrived at last Thursday. In fact I wish to call into question whether the decision was legal. Accordingly I would ask you to investigate as speedily as possible, for, if there is illegality, the sooner it is identified the better for all concerned.
At the Council Meeting on 25 October there was an item on the agenda (Item 13) entitled “Sefton 2010” – Report of the Chief Executive. This item was accompanied by an exempt eight page report, and the agenda indicated that the public might be excluded from the meeting during its consideration (as, indeed, they were).
The Council meeting had before it the minutes of the Cabinet which had earlier considered the report on 4 October. The relevant minute of the Cabinet was:
141. SEFTON 2010
Further to Minute No. 104 of the Cabinet meeting held on 9 August 2007, the Cabinet considered the report of the Chief Executive which provided details of the consultation on the Sefton 2010 Plan and sought approval to the adoption of the Plan and specifically proposals in the Plan in relation to the downsizing of the Management structure and increased decentralisation/devolution to Area Committees.
That the Council at its meeting on 25 October 2007 be recommended to:
(1) consider the Sefton 2010 Plan as the framework for guiding change within the Authority through to April 2010;
(2) consider the revised Management Structure set out at Annexe A of the report for decision, following briefings to the Leaders and Cabinet Members and Spokespersons on the Client/Retained staff arrangements for Lots A and B of the Major Service Review;
(3) consider the assumption that £1m savings can be used as a planning/budget figure for 2008/09; and
(4) consider the principle of further devolution to Area Committees as outlined in the Plan and the Chief Executive’s report for phased implementation.
The (exempt) report provided to the Cabinet and subsequently to the Council contained no proposal for the redundancy of the Chief Executive; accordingly it contained no costings for such a proposal. However the report did indicate that the “proposals in the Plan specifically contribute £1.6m of savings to help the Council secure a balanced budget…”
A matter of minutes before the Council meeting started a seven-point set of “revised recommendations” were circulated and it became clear that the leaders of two of the three political groups on the Council intended to put forward a significantly different proposal to that contained within the Report. One key difference was that there was a lesser slimming down of the Management Structure than had been proposed by the Chief Executive, to the extent that the savings were some £300,000 per year less than would arise from the Chief Executive’s proposals.
The other key difference was that it was now proposed “that to facilitate the overall reduction in the Senior management Structure, the Chief Executive be afforded redundancy and early retirement with effect from 31 March 2008….”
As stated in 4. above, there were no costings whatsoever for this proposal within the report, nor were any circulated separately.
On a split vote the “revised recommendations” were all carried.
Although the resolution on the Chief Executive referred it being “to facilitate the overall reduction in the Senior management Structure” it was made clear that there would be a new Chief Executive; accordingly it is not clear how, in any way, this facilitates that overall reduction.
It seems to me that the way in which the decision on the position of the Chief Executive has been arrived at is contrary to Sefton Council’s Constitution and/or to law. As such it may be null and void. There are a number of possible reasons for that view, and they are as follows:
This decision is an executive one which should have been made by Cabinet, not Council, and been subject to Call-In.
No such decision, which involves extra expenditure measured in hundreds of thousands of £s, can be validly made without a written report to those asked to make the decision, specifying the likely cost.
(In the alternative) if the decision is not to be made by the Cabinet, it should be made by the Employment Procedure Committee, which has (inter alia) the following delegated powers: (6) To consider and make recommendations to Council as to the appropriate action in respect of any report relating to the dismissal (including on the grounds of redundancy, capability or ill-health) of the Chief Executive.
The right of appeal has been denied in that the Appeals Committee is unable to function under section (4) of its delegated powers: To consider any appeal from the Chief Executive against the decision of any Committee or Sub-Committee dealing with a report relating to his dismissal on the grounds of redundancy, capability or ill-health and to make recommendations to the Council thereon.
(In the alternative) under Wednesbury Principles the decision is so unreasonable that no reasonable authority could have arrived at it, in that although the preamble to the decision states that it is intended to “facilitate the overall reduction in the Senior Management Structure”, it does no such thing.
! would appreciate your consideration of the points I have raised; please do not hesitate to contact me if there is any further information I can give you, although I assume that Sefton Council’s own officers will be able to assist you on most matters.
COUNCILLOR SIMON SHAW
Cc Mr Paul Edwards, Finance Director, Sefton MBC
The law of judicial review has developed judicially created doctrines to ensure that public authorities keep within the law, and thus safeguarding the efficacy of the rule of law. In the locus classicus Associated Provincial Picture Houses Ltd v Wednesbury Corporation  1 KB 223, 228 Lord Greene MR set out the principles upon which the courts legitimately can interfere with administrative decisions. A failure by a public authority to have regard to matters which ought to have been considered, which is to be derived either expressly or by implication from the statute under which it purports to act, will be an abuse of its discretion. Similarly, if certain matters are considered, which from the subject matter and the general interpretation of the statute are held by the court to be irrelevant, then this will amount to a defect in the decision-making process. Lord Greene MR also set out the head of challenge known as Wednesbury unreasonableness: a decision which is so unreasonable that no reasonable authority could have arrived at it (for a recent examination of this head see Walker 1995).