It's Your Right to Know

October 2009 & 2010: The Veolia legal challenge to Notts County Council (2009/2010)

Nottinghamshire CC was constrained under a temporary injunction obtained by Veolia ES (Nottinghamshire) Ltd not to disclose parts of a contract and parts of invoices relating to a waste incinerator PFI project, to a local taxpayer and Friends of the Earth campaigner Mr Shlomo Dowen (left).
A judicial review hearing took place at the High Court on 25-26 August 2009 before Mr Justice Cranston, and then went to the Court of Appeal before Lords Justice Rix, Etherton and Jackson on 5-6 July 2010.

29 October 2010:
The Court of Appeal has broadly rejected Veolia's attempts to stop details of a major PFI project falling into the hands of taxpayers, voters and journalists - a decision which impacts on councils around the UK.
ONB briefing here.

12 July 2010:
The Court of Appeal has been tasked to decide whether taxpayers and voters (including journalists) are free to view, copy and then publicise details of Town Hall finances.
Full story and court transcripts here.

18 February 2010:
Waste management firm Veolia ES Nottinghamshire's battle to keep details of a multi-million pound PFI project out of public scrutiny is heading to the Court of Appeal.
The hearing is scheduled for 5 July 2010.

31 October 2009:
Veolia has filed papers with the Court of Appeal.
A hearing date is awaited.

01 October 2009:

ONB comment: The Veolia and Notts CC judicial review related to an application by one local elector and taxpayer to view a set of accounts relating to one PFI contract at one particular council in one financial year.

But today's judgment has wider significance in terms of the public's '
right to know', and for enabling local people to hold local authorities accountable for day-to-day expenditure.

Some local authorities have attempted to use 'commercial confidentiality' arguments to prevent electors and taxpayers from viewing public accounts, independently of any court action.

ONB is aware that other contractors, consultants and companies - including those engaged in PFI contracts - have been pressing local authorities to
restrict public access to contracts, deeds and invoices during the statutory inspection period.

Judge Cranston's ruling (summarised below) gives electors and taxpayers a better chance of challenging obfuscating local authorities which have a poor
track record of publicising and upholding people's rights to peruse the files.

Veolia, other contractors and local councils may now expect more requests for access to similar PFI deals elsewhere in the UK, summer 2010 onwards.

The purpose of the inspection rights:

"Its history lies in democratic accountability, rather than the policy of transparency and openness behind modern legislation" (eg: FOI).
"The obligation to pay local taxation through the rates was matched by the right given to rate-payers to an involvement in the process of ensuring the money was well spent.
"Assisting the audit process included an opportunity for local government electors and other persons interested to inspect and copy the accounts and related documents."
Cranston J (01/10/09)

What are the 'accounts to be audited'?

"The (1998) references strongly suggest that the accounts are not simply documents to be drawn up after the financial year. Rather, they are a running record which is kept of financial activity which never ends, although they are made up from time to time."
Cranston J (01/10/09)


Which documents should be available for inspection?

"It is clear that (the Act) does not confer an unqualified right of access to books, deeds, contracts, bills, vouchers and receipts held by a body to be audited.
"There must be a nexus between the accounts of the Council to be audited and the book, deed, contract, bill, voucher or receipt.
"There is no support for (Veolia's) approach that a document only relates to the accounts if the link with the item of account is apparent from the document itself."
Cranston J (01/10/09)

How much information must be disclosed?

"The statutory scheme envisages that local government electors and other interested persons may wish to consider questions such as whether sums purportedly paid under a contract are properly due under that contract; whether payments made by the body under audit are lawful; and whether in incurring any liability for expenditure the body under audit has made proper arrangements for securing value for money.
"The local government elector would have to know the amounts actually spent, and the basis of their calculation, to be able to ask informed questions of the auditor about the lawfulness of an item of account relating to expenditure under the contract.
"This strongly suggests that the objector would have been entitled to such information."
Cranston J (01/10/09)

Commercial confidentiality:

"In my judgment it is entirely unsurprising that ... the law should permit a local elector such as Mr. Dowen sight of the disputed documents in this case.
"The historic role of interested persons such as local government electors in participating in the audit process would be severely diminished without such disclosure.
"The plain fact is that there is no duty to keep commercial confidentiality in section 15 (of the Act)."
Cranston J (01/10/09)

The complete decision is available on the bailii.org (British and Irish Legal Information Institute) website: here.

For guidance, contact Orchard News Bureau Ltd.