we sought the legal opinions of two Queen’s Counsels (QCs) who specialize in Local Government Law.
As such we were advised it is necessary to consider Folkestone & Hythe District Council’s constitution, as it is the legal framework which holds the Council, its officers, and elected Councillors to account.
However, the QCs made it clear, the constitution does not stand alone as other statutes affect it.
The two QCs, both specialists in Local Government law, have concluded that the expenditure about which they were asked to advise the Shepway Vox Team, was unlawful. They state:
In the circumstances, and subject to anything which may emerge during the Council’s investigation and the Internal Auditors investigation (led by Christine Parker of EKAP), it seems inescapable that the Chief Finance Officer & s151 officer (Charlotte Spendley) must make a statutory report or reports. The reporting function under s114(2)(a) & (b) of the Local Government Finance Act 1988, is by way of a duty that must be fulfilled when the conditions arise for it to apply, as they do in these set of circumstances given the evidence available. Even if there might be cases in which the incurring of unlawful expenditure could properly be treated as something de minimis and to be disregarded, the present case cannot be regarded as falling into that category. The sums in question are material, and the reasons why the expenditure was unlawful are far from technical. Even if past expenditure on the Premier Roofing contract and Clifford Carpentry and Interiors were by some means returned (probably not easy to achieve), that would not alter the fact that the relevant expenditure had been unlawful when the excess was incurred, and nor would it solve the problem of fundamental breaches to the Council’s constitution and in particular Part 10 of the Council’s constitution – the Financial Procedure Rules, Contract Standing Orders and Auditing the Council.
The QCs go onto say:
Although our specific remit in this case was to assess the unlawful expenditure we agree with the client’s suggestion that the Council’s monitoring officer under s5 of the Local Government and Housing Act 1989 must also have been triggered, on the basis that there has been a contravention of an enactment or a rule of law. Engaging in unlawful expenditure without statutory power to do so can be regarded as a contravention of the rule of law that statutory bodies must act within the powers given to them by statute. Making unauthorised payments on contracts in circumstances such as this is similarly a contravention of the ultra vires rule.
The Chief Finance Officer (Charlotte Spendley) is required under the Local Government Finance Act 1988 to consult the monitoring officer (Amandeep Khroud) when preparing a report. In such circumstances, we see no reason why the monitoring officer’s own reporting duty cannot in substance be discharged by the provision of appropriate comments within the CFO’s report (e.g. to the effect, if this is the case, that the monitoring officer agrees with what the CFO has said, considers that the facts set out amount to as 5 contravention, and wishes the comments to be treated as a report by the monitoring officer).
Given both opinions of the QCs, will Charlotte Spendley (pictured above left) and Amandeep Khroud (pictured above right) issue the reports to the Council’s cabinet, full council and release the report/s to the residents of the district as well?
