It's Your Right to Know

August 2009: The Veolia legal challenge to Nottinghamshire County Council (2009)

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.

Mr Philip Coppel QC, for Veolia (claimant)

Veolia submitted that the public's rights to inspect the accounts is limited to material which is presented to and signed off by the external auditor and then by the council, which is the annual 'statement of accounts'.

The claimant also argued that electors and taxpayers do not have a statutory right to inspect any contract or invoice which is not identified in the 'statement of accounts'. The company also submitted that the taxpayer has no legal right to '
gainsay' or 'duplicate' the work of the auditor.

Veolia also submitted that electors and taxpayers have no legal right to inspect any contract or invoice which is subject to day-to-day internal audit, because that material is not supplied to the external auditor or to the council to be signed off as part of the annual audit process.

Mr Coppel said: "What one can't find is anything to suggest that there is anything beyond the
statement of accounts, or rather the accounts in the statement of accounts, that constitute the accounts to be audited."

The company argued that it was absurd to suggest that Parliament had given local taxpayers a right to seek judicial review on any item of expenditure - such as whether a single, 'miniscule' £2.00 payment had been spent outside the terms of an approved
contract.

The claimant also submitted that the court had to carry out a balancing exercise in relation to Mr Dowen's inspection rights, in order to protect the commercially sensitive and confidential information contained in its contract and invoices with Notts CC.

Veolia argued that it had developed a 'sophisticated' and competitive formula for contract and tender
fees and charges, and that the company's financial interests would be damaged if its sub-contractors and rival firms obtained the figures.

Mr Michael Supperstone QC, for Nottinghamshire CC (defendant)

The council submitted that Veolia's assertion - that contracts and invoices are open to public inspection only if there is a reference to the cost in the annual 'statement of accounts' - was 'arbitrary' and defied '
common sense'.

The defendant argued that Veolia's approach failed to resolve the issue that it had raised about confidentiality, since under its regime any disclosure of invoices and contracts would depend on what appeared in the annual statement.

Mr Oldham said: "The claimant's narrow interpretation would considerably limit the scope of the
local government elector to enquire and object to the accounts, in such a way as to become unworkable."

The council argued that it would be 'untenable' if records and invoices relating to a £200m
contract were open to inspection, but those of a £500m contract were not, purely by token of whether an entry appeared in a statement in any particular year.

The defendant submitted that the Veolia contract and the monthly invoices were part of the council's accounts, regardless of whether they were itemised in the annual statement of accounts.

The council argued that it would never be possible to include references to all of the material making up the accounts in the annual statement, because the volume of material which is open to
public inspection is so vast.


Mr Timothy Pitt-Payne QC, for Mr Dowen (1st interested party)

The 1st IP accepted that Parliament had not sought to protect commercially confidential information in the statute, as it had with similar legislation such as the Freedom of Information Act and the Environmental Information Regulations.

Counsel submitted that this was deliberate, and not a statutory omission.
Parliament had revised the law as recently as 2007, to provide for non-disclosure of personal information in the accounts under public inspection.

The 1st IP argued that the HTV West case (link here) established a local elector's rights to inspect and make copies of the contract and invoices, without having to satisfy any legal requirement concerning motives.

Counsel submitted that taxpayers were then free to use the information - as in the HTV case where information was sought for a
documentary - providing that no other law was broken.

Mr Pitt-Payne said: "It is clear that the council has paid money to Veolia and has received money, and that is sufficient to say that the
disputed documents (the contract and the monthly invoices) relate to the accounts."

Counsel submitted that local taxpayers fulfill an important role during the public inspection period, whereby they may identify potentially
fraudulent payments. The law does not restrict them from raising matters with the auditor, or with local government officials, or elected members, or other taxpayers.

Mr Peter Oldham, for the Audit Commission (2nd interested party)

The Commission submitted that Veolia's case was seriously flawed by a 'wholesale
misrepresentation' of taxpayers' rights to view the accounts, statement of accounts and the accounting records.

The 2nd IP argued that the legislation gives electors and taxpayers a 'powerful' right to seek out documents during the inspection period, and that those rights were not limited or conditional on raising questions or objections with the external auditor.

The Commission submitted that the 'accounts' referred to in the legislation were a 'running record' of day-to-day transactions.

Mr Oldham said: "The purpose of allowing interested persons to inspect the books is to provide some measure of
local accountability, and to fill any gaps which may have arisen because the auditor has not delved into an issue."

The 2nd IP accepted that there is no formal definition of the term 'accounts' as it appears in the statute but argued that a '
common sense' approach to the regulations indicates that Parliament intended the phrase to include all of the accounting records and all of the materials that go to make up the records.

The Commission submitted that explains why the statute specifies that all books, deeds, contracts, vouchers, bills and receipts 'relating to' the accounts must be made available for
inspection, and why the statute allows an elector to object to an 'item' in the accounts.

The 2nd IP argued that also explains why the regulations specify that the public notices of the inspection rights are worded in a similar fashion.

Judgment was issued on 1 October 2009.

Link to the High Court decision here

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