What the first Fitzgerald Court Case tells us about Liverpool Council

High Court

A judgement in the High Court earlier this week has given us a lot of information about problems within Liverpool City Council for which Mayor Anderson must take responsibility

Many people have been asking me why the legal action against the 4 people in the Liverpool Direct/One Call Lancashire case seems to have stalled. It is because the Police and CPS have been waiting for a judgement is a related case which appeared in the High Court in London which tried to have certain evidence removed from the case.

On Monday a court judgement from the High Court was made which tells us a lot about Liverpool. Let me be clear from the start that the judgements did NOT relate to the cases against which arrests have been made relating to intimidation of witnesses and conspiracy to pervert the course of justice. Nor did they relate to the initial and primary investigation into questions of illegal payments within the Liverpool Council, Lancashire Council, One Call Lancashire and Liverpool Direct system.

This is what the Judges said about this, “our conclusion is strictly confined to the application for permission to apply for Judicial Review; we have and express no view as to the ultimate outcome of the investigation or as to any prosecution which might result”.

What this judgement is about in the words of their Lordships is, we have considered this application for permission to apply for Judicial Review fully and at some length. Ultimately, however, once we had overcome our own initial reservations as to the drafting of the application for the warrants, we have come to the clear view that there is insufficient merit in the claim to warrant granting permission to apply for Judicial Review. Accordingly, we refuse permission and dismiss the claim.

So, this judgement is about an attempt by Mr Fitzgerald to get a judicial review to stop certain information being used in the wider case. In this he was unsuccessful on all counts with the five contentions his barrister made on his behalf and 5 sub contentions.

So why can we begin to make conclusions now? Because in the judgement a lot of information has been produced which can be used because it is now in the public domain. I will not, however, make any observations here or anywhere about the main case. I would do nothing which might in any remote way prevent justice being done after a full and proper trial which properly hears all the evidence.

But there are issues which particularly concern me as a Liverpool Councillor.

Firstly, the Council has maintained all along that this was a Lancashire matter which had nothing t do with Liverpool. This was always a farcical position. Two of the people arrested were employees of the Council at the time. Our council officious were raided. Our equipment was seized by the Police.

So, Question One is, “Why did the Mayor and Senior Officers maintain for so long that this was nothing to do with them?

As part of the request for the search warrants the Lancashire Police claimed, “The suppression of formal advice from Alison Foster QC to the effect that appointing McElhinney as Interim Chief Executive of Liverpool City Council would be unlawful. No trace of that document was found within the Legal Department of Liverpool City Council and it had to be obtained from Ms Foster herself”.  I don’t know why the appointment was considered to be unlawful but I do know that in similar circumstances other Councils have had a full interview procedure and an appointment made by full council as they would for a permanent appointment.

I have long had doubts about that interim appointment because in many ways it set up the circumstances in which McElhinney’s long time friend was appointed Chief Executive over the heads of three outstanding women candidates. There can be no doubt that this information as suppressed and that legal departments do not lose important letters. So, Question Two is, “who suppressed the information and who knew about the suppression?”

We then turn to another interesting point on which I tried to get information from Fitzgerald at the time, How much did McElhinney earn? This is what was said in the search warrant request, “The Hellard letters. Sept 2013 to Sept 2014. Application Form paras. 35 to 44. Lancashire believed that McElhinney’s salary at OCL was £40,000 pa (paras 14, 18). In fact he was being paid considerably more. Gill Kilpatrick (Lancashire) enquired of Rebecca Hellard (Liverpool) concerning his salary and highlighted concerns about his bonuses. In reply to those enquiries Hellard deferred to Fitzgerald (her boss) and in turn he referred her to McElhinney to give the substance of the replies. Fitzgerald reviewed the draft replies before they were sent. As a result, Hellard was misled into providing answers which were ‘uncooperative, vague and dishonest’ (para 42)”.

This is of vital importance because when it comes to deciding packages by which people leave the council reference is made to their current salaries and pension payments. I asked Fitzgerald on numerous occasions how much McElhinney was being paid. We should have known because he remained throughout a seconded member of staff of the Council. I specifically raised the point on a number of occasions at the time of McElhinney’s departure and challenged Fitzgerald repeatedly about how a pension and pay off calculation had been made. I never received an answer. This raises Question Three and Four, “Why was the Director of Resources who also has the legal position of 151 officer not acting independently? Did the 151 officer seek appropriate legal advice from the Legal Department?”

I now turn to the last substantive piece of evidence relating to the Council the deletion of information from Council equipment. In applying for the warrant Lancashire Police said, On 12th February 2014, McElhinney was invited by the police to be formally interviewed under caution. On 17th of that month, seven laptops, including Mr McElhinney’s were sent to the internal IT department to be returned to factory settings, thereby irretrievably deleting all the data on them. Similarly, on 18th February 2014, six iPads and iPhones including ones used by McElhinney were also ‘wiped”.

Questions 5 and 6 are obvious, “Was any advice sought within the Council as to the legality of the deletion of information either by McElhinney or the staff ordered to do the deleting? Which staff members actually carried out the instructions?”

The last question that needs answering relates to the Mayor of Liverpool. It is simply, “What did the Mayor know about what was happening with the senior officers who reported to him and with which he worked every day?” Here there can only be two conclusions. Either he did know what was going on and was a party to the decision-making process or he did not know what was going on and therefore failed to control the senior officers in his team.

In my view there are two urgent things that should flow from this:

  1. Joe Anderson should resign. He has presided wittingly or unwittingly, over a disastrous series of events.
  2. We need to make major changes in our legal team which seems to have exerted insufficient authority in the council as contentious actions have occurred. This would best be undertaken by an independent review of the department and its role in these matters.

What happens next lies with Lancashire Police and the Crown Prosecution Service. On May 23rd the four defendants answer to bail. I would be amazed if they were not charged now that this side case has been dealt with. The case has been going on since January 2014. By January last year it had cost more than £1.9 million of public money that could have been better used elsewhere. Justice is best served when done properly and swiftly. I hope that the final stages for this necessarily tortuous process will commence next month.

About richardkemp

Leader of the Liberal Democrats in Liverpool. Deputy Chair and Lib Dem Spokesperson on the LGA Community Wellbeing Board. Married to the lovely Cllr Erica Kemp CBE with three children and four grandchildren.
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1 Response to What the first Fitzgerald Court Case tells us about Liverpool Council

  1. Paul says:

    Excellent monograph Richard. Straight and to the point. Resignation of Anderson must follow if not Labour are contempt of the electorate of Liverpool not matter what political stance you have politically

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