Tribunal finds in favour of council

The Rothbury Parish Council noticeboard in the village. Picture by Jane Coltman
The Rothbury Parish Council noticeboard in the village. Picture by Jane Coltman

A judge has found in favour of Rothbury Parish Council after the dispute between the authority and its most ardent critic entered the courtroom.

The ruling relates to a tribunal hearing which took place in March and which had a narrow remit in relation to an appeal over refused information requests.

However, this hearing was just the latest incident in an ongoing saga which has seen ‘dissident elector’ Tony Kell repeatedly complain about and criticise the parish council, the councillors, the clerk and how they conduct their business.

Indeed, Mr Kell used his day in court to raise a wide range of issues, many unrelated to the appeal the tribunal was hearing, despite the warnings of Judge David Farrer.

The parish council has welcomed the decision, while Mr Kell has raised concerns about ‘factual error, personal bias, public bullying and refusal to hear evidence or context’.

In dismissing Mr Kell’s appeal, the decision notice explains that the tribunal’s task ‘is not to make findings as to a long series of factual disputes relating to fractious confrontations between Mr Kell and his supporters on the one hand and council members and clerk on the other’, but to decide if the requests for information in question were vexatious (the reason for their initial refusal, see story below).

Explaining the reasons for the decision, it says: ‘An imperfect record in matters of governance by a town or parish council does not, of itself, justify a remorseless campaign of complaints and requests for information designed to reform it, however sincere and public-spirited the campaigner or campaigners may be.

‘That such a campaign has been and is being waged in this case is not disputed by Mr Kell. Whether the motives that inspire it are indeed entirely altruistic we greatly doubt.

‘Our doubts have been significantly fortified by what we saw and heard at the oral hearing, especially the evidence and advocacy of Mr Kell.’

Mr Kell is referred to as ‘an unimpressive witness’, while ‘we found Ms Miller (the clerk) a sensible and reliable witness, though giving the perhaps understandable impression that she was weary of the whole Rothbury saga.’

The decision notice continues: ‘We emphasise that these findings do not amount to a total exoneration of RPC. As stated above, we accept that its conduct of council affairs was not flawless.

‘It may well be true that, on some occasions, Mr Kell met hostility and even rudeness.

‘If so, however, it is probable that he brought it upon himself by the aggressive stance he adopted and demonstrated at the hearing and the unrelenting pressure that he brought to bear on RPC, a pressure quite disproportionate to its shortcomings or any sincere attempt to assist in overcoming them.’

It adds that Mr Kell’s requests were ‘motivated rather by a desire to pursue a three-year-long vendetta than to seek information in the public interest’.

A statement from the council said: ‘Rothbury Parish Council has nothing further to add. The judgement of the Information Commissioner (a man who has never met Mr Kell) was damning enough; now we have a decision from a Judge, an experienced QC, who, having witnessed Mr Kell’s actions first-hand, delivered an equally damning judgment (if not more so) that quite frankly speaks volumes.’

Mr Kell told the Gazette that he had only recently received the judgement by email, but did issue a lengthy statement.

In it, he said: ‘The purpose of information rights panels is not to enter into character assassination simply because the panel prefers one witness to another. Its remit is simply to decide on the application of law, under terms of reference provided to the panel.

He added: ‘Rothbury parish taxpayers should not be hijacked onto personality rhetoric, but should focus on what is good for the parish.

‘It is not in the interests of the parish that a clique of elected councillors, one of whom pays no parish tax, committed virtually a full year’s public taxation on lawyers’ fees to avoid simple public domain information, which they wish to conceal.’

He also said: ‘Everyone knows that establishment denial is the standard response to any whistle-blower challenging conduct of a public body. Examples over decades include Alder Hey, Rotherham, Mid Stafford, as well as lesser-known cases.

‘The truth about Hillsborough took 25 years to emerge. When did any public body freely admit to error?

‘Mistakes will occur, but open, honest and effective governance is essential.’

What was the tribunal for?

On April 14, 2015, Tony Kell requested information from Rothbury Parish Council relating to complaints procedures, records management and a contract for gardening services under the Freedom of Information (FOI) Act.

The council refused the requests as vexatious under section 14(1) of the FOI Act, which is designed to protect public bodies by allowing them to refuse any requests which have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress.

Mr Kell referred the issue to the Information Commissioner’s Office (ICO), whose decision, published in October, was that the council cited section 14(1) correctly.

Mr Kell appealed this decision, which sparked an information-rights tribunal in which the matter is heard by a three-person panel consisting of a judge and two other members.

This was adjourned after the one-day hearing in March before both parties sent in final written submissions. This was followed by a 24-page decision notice, which was issued last Friday.

Mr Kell’s complaints and accusations date back further and are far more wide-ranging that this issue though, with the dispute starting in 2012.

On the one hand, it is fair to say that the previous chairman, Mark Gilson, conceded that the council had made mistakes and ‘not crossed all the Ts and dotted all the Is’.

It is also true that, for example, a number of concerns were raised by external auditors over the annual return for the year ending March 2012.

However, it is also true to say that in January 2015, it was confirmed that complaints to the Information Commissioner’s Office (ICO), Northumbria Police, the external auditors and Northumberland County Council had resulted in ‘no further action’.

Meanwhile, the tribunal finding is only the latest in a series of decisions against Mr Kell.

In October 2015, the ICO upheld the parish council’s decision to refuse information requests, made by Mr Kell in April. He appealed, sparking the tribunal. Mr Kell also appealed another ICO decision which found against him in January.