Legal advice given by barristers to Council

Legal advice given by two barristers to Carmarthenshire Council is being circulated to all members.

The advice concerns the granting of an indemnity to the Chief Executive Mark James to counter-sue blogger Jacqui Thompson for libel.

It follows a public interest report published by the Wales Audit Office which states that the decision by the Executive Board was unlawful.

Leader Cllr Kevin Madge said the administration would robustly defend that decision, which was taken following top legal advice.

Further legal advice was taken last year after the auditor said he was questioning the legality of the decision. Both QCs consulted agreed that the Executive Board acted within its powers and within the law. However, these opinions are at the heart of the disagreement with the auditor over the lawfulness of the indemnity.

The auditor argues that a 2006 Order states the council is not authorised by statute to grant an indemnity in respect of making a claim or counterclaim for defamation.

The council, however, argues that the power to grant the indemnity was given under section 111 of the 1972 act.

The auditor believed the 2006 order replaced the 1972 act, but two QCs advised the council that it did not.

James Goudie QC was consulted on his legal opinion in 2008 and he concluded that whilst the powers should only be used in exceptional circumstances, the 2006 Order was in addition to, and did not restrict, the existing powers under the 1972 Act.

This view was reinforced some months ago by Tim Kerr QC who was consulted by the council following the Wales Audit Office investigation.

He gave a detailed view of the case and said he considered that the Executive Board’s decision to grant the indemnity was lawful.

Cllr Madge said: “As I have said previously we are now in a position to share all the information and advice we received with all councillors and with the public.”

“The legal advice we obtained from two top QCs is part of this process which we hope will assist people in being better informed regarding these issues.”

Further legal advice was sought from Adam Speker QC prior to the Executive Board taking its decision to indemnify in 2012, and a verbal presentation of this was given to the meeting, a fact which the Wales Audit Office has not acknowledged.

The reports of James Goudie and Tim Kerr are to be circulated to councillors and are available to download here.

James Goudie (.pdf)

Tim Kerr (.pdf)