Confirmation that crucial 2011 legal advice actually exists

The request was partially successful.

Dear Harrogate Borough Council
I’m deeply disappointed and concerned that I find myself in the position of having to make yet another Freedom of Information request to you as a result of your alleged persistent obstructiveness and refusal to answer perfectly legitimate questions in the aftermath of your reluctant acknowledgement that you operated in contravention of the Equality Act 2010 for 4.5 years.
Whether its skulking behind the cloak of “privilege and confidentiality”; side-stepping questions; or providing incomplete and/or misleading answers, you have continually refused to make public all relevant information relating to what has now been proven to have been a discriminatory decision to axe men-only bathing sessions at Harrogate's Turkish Baths while allowing seven (now six) single-sex sessions a week for women.
You have frequently claimed that this decision was justified and was based on a critical piece of legal advice you allegedly received in late 2011, but which you have persistently refused to place in the public domain.
I am now led to believe that, allegedly, no such legal advice was ever provided and therefore I am asking you to confirm whether this specific legal advice actually exists?
The Council will be fully aware that under Section 1, Paragraph 1 of the Freedom of Information Act 2000, any person making a request for information to a public authority is entitled to be informed in writing as to whether that public authority holds the information of the description specified in the request.
So I want to be crystal clear about the piece of legal advice I am seeking further information about. It is advice that was referred to by the Council’s Head of Legal & Governance in an email to me dated October 19, 2016; and repeated almost word for word in a press statement released by the Council’s Chief Executive on April 4, 2017.
It reads: “The legal advice provided at the time when the men only sessions were discontinued did not advise that the decision to end men-only sessions was discriminatory. Rather the advice was that if there was indirect (sic) discrimination as a result of the cessation of the male only sessions, it was indirect discrimination which could be justified by the economic and commercial arguments which were the rationale for the decision. The then Monitoring Officer therefore had no reason to challenge either the legal advice given or the decision.”
In the light of this statement, I require answers to the following:
1) Please confirm the exact date on which this advice was provided.
2) Please confirm that this advice was made in writing and exists within the Council’s archive of official documents.
3) Please confirm the specific job title of the person who allegedly provided this advice.
4) Please state the exact reasons why the Legal & Governance department believes that “on balance” it would not be in the public interest to place this legal advice in the public domain, together with the legal advice the Council received from an external barrister on July 1, 2016 – which informed the Council that it had been operating in breach of the Equality Act 2010 for 4.5 years. In what precise way is the public interest best served by keeping these two legal opinions secret?

Yours faithfully,

Peter Lilley

Rich Kemp, Harrogate Borough Council

Dear Mr Lilley

 

Thank you for your email requesting information under the Freedom of
Information Act 2000. In response we can inform you that there were 2
pieces of legal advice, an initial advice by a ‘Legal Assistant’ on
17/11/2011 and a further advice by a ‘Solicitor’ on 25/01/2012. Both these
communications are held by the Council in written form (email). The public
interest in relation to the non-disclosure of the legal advice has been
covered in a previous response to a request submitted by you for
disclosure of the advice.

 

If you are not satisfied with the way your request has been handled,
please contact -  

 

Freedom of Information Officer

Council Offices, Crescent Gardens, Harrogate, HG1 2SG  

 

or email [1][Harrogate Borough Council request email]

 

The Council has an internal appeal system.  If your complaint is about the
decision which has been made you will usually be entitled to have your
case reviewed by an officer from a department which has not been involved
in the decision previously.   

 

If, after their decision, you are still not satisfied, you may appeal to-
 

 

The Information Commissioner

Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF

Tel: 0303 123 1113

website: [2]https://ico.org.uk/

 

Regards

 

Rich Kemp LLB (Hons)

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [3][email address]

[4]www.harrogate.gov.uk

 

 

Dear Mr Kemp
I acknowledge your response to my Freedom of Information request. Not for the first time, I find the Council’s procedure for dealing with FOI requests to be unsatisfactory and unacceptable. Your answer simply repeats what the Council’s Chief Solicitor told me in an email dated July 17, 2017; which I responded to the following day.
I made the point that up until very recently the Council had only referred to a single piece of legal advice given in late 2011. But now reference is being made to two pieces of legal advice - given in November 2011 and January 2012. But you appear to have deliberately overlooked the point I made very clearly in the preamble to my questions; namely that I’m not interested in general legal advice that may have been given to the Council during this period. I asked specifically about the advice which instructed the Council that axing the men-only bathing sessions would not be viewed as a discriminatory action. But you have failed to confirm in your own words that both these pieces of legal advice relate to that absolutely specific point.
You also haven’t explained why this advice would have been given on two separate occasions and by two different people; one of whom was a legal assistant. And yet we are led to believe this person allegedly provided the Council with learned opinion as to whether its actions could potentially be in breach of an Act of Parliament?
So I am now seeking a further Internal Review to investigate why my FOI has not been properly addressed.
I would also expect the officer undertaking the Internal Review to assess your response to my fourth question, which you declined to answer on the grounds that you covered it in your response to a previous FOI request. But, with respect, it wasn't properly answered. Vaguely citing “public interest” grounds as a reason for not answering a perfectly valid question is not acceptable. Under the FOI Act 2000, the Council has a duty to explain the exact grounds as to why it believes it would be against the public interest for the public to see the 2011/12 legal advice which led to the men-only bathing sessions being axed (in contravention of the Equality Act 2010 and the Council’s own equalities policy); and the 2016 legal advice which led to the sessions being reinstated?
I am also far from satisfied with the way my FOI request has been dealt with. Once again, the Council allowed itself 19 working days before producing its answer; and only then, after you were chased up and reminded that despite the request only appearing on the WhatDoTheyKnow website on August 14, 2017, the Council’s Head of Legal & Governance, claimed to have logged the matter as an FOI request on August 9. (This was after both the Council’s legal department and Leader of the Council declined to provide answers in response to a direct question I had raised about the existence of the 2011 legal advice.)
It concerns me that the Head of Legal & Governance failed to inform me about the deadline as to when I could expect her department’s response.
Finally, I would draw your attention to the penultimate line of your email which states that if I ask for an Internal Review, I am entitled to have it undertaken by an officer from a department not previously involved in the decision.
In my view this should exclude anyone from the legal & governance department including the Council’s Director of Corporate Affairs who is ultimately responsible for the department.
It’s also worth making the point that this whole dispute stems from the Council failing to realise it was in breach of the Equality Act 2010 for 4.5 years. And since the department primarily responsible for ensuring the Council adheres to the laws of the land is the legal & governance department, I believe it’s unacceptable that officers from this department should be undertaking investigations and reviews into matters which ultimately relate to its own conduct and alleged failings.
Yours sincerely
Peter Lilley

Rich Kemp, Harrogate Borough Council

Dear Mr Lilley

 

I write to confirm that your request for an internal review was received
on 08/09/2017. The Council will endeavour to complete the review within 20
working days. The review will be carried out by a senior Council Officer
who has not been involved with your original request. You will be informed
of the decision of the review as soon as possible once the review has been
completed. If you remain unsatisfied after the findings of the review you
then have the right to complain to the Information Commissioners Office,
details will be provided in the review response.

 

Regards

 

Rich Kemp LLB (Hons)

(Debt & Information Law)

Legal & Governance

Harrogate Borough Council

PO Box 787

Harrogate

HG1 9RW

 

tel: 01423 500600 (ext - 58602)

email:  [1][email address]

[2]www.harrogate.gov.uk

 

 

Peter Lilley left an annotation ()

I'm still awaiting the result of the Internal Review which I requested after Harrogate Council failed to provide me with the information I had requested. In the meantime, I have asked to be advised as to the name of the senior officer who is undertaking the Internal Review. I am still awaiting a reply to that. However, I have been assured that the officer will have had no previous involvement with the matters being reviewed; and will therefore be able to present an entirely independent and impartial view.

Dear Rich Kemp,
I'm still awaiting the result of the Internal Review which I called for after Harrogate Council failed to provide me with the information I had requested. In the meantime, I wish to be advised as to the name of the senior officer who is undertaking the Internal Review. You advised me that the officer will have had no previous involvement with the matters being reviewed and will therefore be able to present an entirely independent and impartial view.
I just want to be satisfy myself that this will indeed be the case.
Yours sincerely,
Peter Lilley

Peter Lilley left an annotation ()

I think it’s important that at least some reference is made to the Internal Review which was undertaken into the way this FOI request was handled; and that this is placed in the public domain.
The Internal Review was undertaken by Harrogate Borough Council’s Director of Community, Mr Paul Campbell who declared: “I am satisfied that your FOI request has been dealt with properly and in compliance with the legislation.”
I responded to this with a direct email to Mr Campbell which included the following points:
1) I fully understand the principle of legal professional privilege and can quite see why the Council’s internal and external legal advisors would wish to feel they are able to offer candid legal advice in the expectation of it not being published at a later date. However, I would argue an exception needs to be made in this case since the Council’s whole defence as to why it felt justified in axing the men-only bathing sessions rests on the advice in-house legal personnel provided in November 2011 and January 2012. This was then slavishly adhered to for the next 4.5 years – denying male residents of this Borough to a benefit they were fully entitled to. So I think it’s reasonable to request that this legal advice should be placed in the public domain so that residents can judge for themselves how it was possible that the Council could have been misled as to the reliability of this advice for so long. (Even the most cursory reading of the Equality Act 2010 makes it quite clear that it’s not acceptable to offer a facility to one gender which is denied to the other as this constitutes direct gender discrimination, which is unlawful under the Equality Act.)

2) You make the point that I have already been informed that the 2011/12 legal advice was different to that provided by an external barrister in July 2016; and that, as a result of the latter, the men-only sessions were restored – which was the outcome I had sought. That is all quite true but what I now wish to know is why nothing appears to have happened during the intervening 4.5 year period, especially since one of the prime responsibilities of both the Chief Executive [Mr Wallace Sampson] and Head of Legal & Governance [Ms Jennifer Norton] is to ensure that the Council fully adheres to the laws of the land. So why didn’t it happen on this occasion? Both have claimed that the 2011/12 legal advice was “superseded.” But this is a misleading term as it gives the impression that the Equality Act was somehow updated between 2011 and 2016. It wasn’t. So what Mr Sampson and Ms Norton really mean by “superseded” is that the Council finally accepted in July 2016 that the Turkish Baths admissions policy was discriminatory; and it did then take action to restore the men-only bathing sessions. But why did it take so long? And let’s be clear, this was the sole reason why the sessions were restored. Your suggestion that the reinstatement had anything to do with a “review of demand, costing and timetabling” has already been discredited. The “review” to which you refer took a staggering six months, yet comprised a survey which involved asking just 71 Turkish Bath customers whether they would favour a men’s session being reinstated. And more than half of those interviewed were women!

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