Could a crashed Concordat cost you millions?

On the night of the infamous January 9th public meeting — when Imperial College gathered Wye together to tell it very little indeed — Professor Sir Leszek ‘Borys’ Borysiewicz made one good decision anyway. Beforehand he stopped for a drink in the New Flying Horse, a hostelry occasionally visited by save-wye cadres when we are not here flailing away at the keyboard for your illumination.

One of those partaking of a cocktail near Professor Borys continues to swear he overhead a very interesting snatch of conversation. Someone, our eavesdropper insists, asked what would happen if the whole Concordat scheme collapsed. ‘Then we’ll sue,’ the Prof, Imperial’s deputy rector, supposedly answered darkly.

Prof Sir Leszek
Prof Borys: Excellent taste in pubs

At least that’s what someone thinks they picked up. If it’s all wrong, or just some apocryphal pub story, then Professor Borys has only to e-mail us with an accurate version of events and we will gladly correct it. But let us — rarely for this site — enter the realms of hypothesis here. What if he really did say that? What could it possibly mean?

Here is one potential answer. Imagine that Kent County Council and Ashford borough take a deep breath, examine the shameful, shoddy and undemocratic way they have tried to proceed with this issue, and give up the ghost. A month ago I would have thought that unlikely. Today, as the full extent of their extraordinary secret machinations is only beginning to become apparent — and I emphasise that word ‘beginning’ — I think it is a pretty fair possibility. Think for a moment of what we now know that we didn’t — and frankly would scarcely have believed possible — six weeks ago…

  • The councils actually signed two agreements, the secret one going further than the public (by stating, among other things, that Imperial will need to build housing to pay for its funding ‘gap’).
  • Two crucial reports are being witheld from public view even though KCC have already said in public they should be released.
  • A number of large consultants, property agents and architects have been working on the scheme for some time, though the parties continue to insist ‘there are no plans’.
  • KCC may have breached both the Freedom of Information Act and the Data Protection Act by bringing Imperial College into FoI responses submitted to the council, and the council alone.

Are those involved wondering how much more there is to come? I hope so, because we certainly are.

But what happens if the councils do try to back out of Imperial’s tight embrace? They doubtless believe they have a get-out clause. Both secret and public concordats include a phrase which says the signed documents represent voluntary agreements ‘not intended to constitue a legally enforceable contract or to create any rights or obligations which are legally enforceable. It is intended to be binding in honour only.’

I am a mere mortal, not a lawyer. Charles Dickens worked in a law office for a while, so I can merely quote him on the subject, from Nicholas Nickleby.

There are many pleasant fictions of the law in constant operation, but there is not one so pleasant or practically humorous as that which supposes every man to be of equal value in its impartial eye, and the benefits of all laws to be equally attainable by all men, without the smallest reference to the furniture of their pockets.

Oh, and there is one other important point to be mentioned too. We don’t know what these various parties have said, or even signed, in private. Is it possible Imperial have some reason we know nothing about which leads them to think a dead Concordat is simply the starting flag for the people with torts?

April Concordat

Extract from the secret April Concordat: but what’s it really worth?

We don’t know; these three public bodies, funded by our money, two of them supposedly representative of our views, do. But if the lawyers are circling the scene I doubt we will find out until all hell breaks loose, which might be sooner than you think. Here, though, is where it gets really sticky.

First, a court case immediately kills the OINAP (Only an Idea Not A Plan) notion. How could a mere idea create such expectations that one party could sue another over its failure? Personally I think that particular fiction is dead anyway. Imperial have stumped up a fortune to the people in suits trying to make this turkey fly. How much did that 31-page report by GeraldEve on building in our own area of outstanding natural beauty cost? A lot…

So if they go to court, both sides are admitting that this was a serious project, seriously planned, long before it ever came into public view. For KCC that’s just the beginning of the nightmare. Imagine Imperial do have a case and win it. They might come at the local authorities for millions, all of which has to be paid out of your council tax. Even if Imperial lose, the authorities could still wind up with considerable legal bills, and they can only come from one source too: your pockets.

Is there anything you could do? Absolutely. You could complain to the Audit Commission (motto: ‘We ensure that public services deliver value for money’) pointing out that the agreements which landed us all with these bills were pursued in private, so far as one can see without any internal debate or vote in any council sub-committe. It was this very process that landed Dame Shirley Porter, the former boss of Westminster council, with a surcharge of £27m. But Messrs Clokie and Carter can relax a little. The surcharge provisions were repealed by the Local Government Act 2000, so they won’t be getting any nasty bills on their doormats for signing up to this scheme on our behalf. We would though, and I doubt Kent ratepayers in Sevenoaks and Medway, Tonbridge and Dover, would be much pleased to find an extra line on their already hefty council tax bills, one marked ‘Failed Wye Concordat’.

When this story began it appeared to be a parochial concern, confined to a small area outside Ashford that none much cared about except those of us who live here. It seems to me, though, this is fast moving beyond a tiny, local protest that others would have you believe is nothing but nimbyism. Very soon it could be seen in what may prove to be the correct light: a tale of wholesale maladministration in the local governance of Kent.

Do you wonder there are some very worried faces wandering the corridors of County Hall, Maidstone, at the moment?

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About David Hewson

Professional novelist, published in more than 20 languages. Creator of the Nic Costa series set in modern Rome. Most recent book the novel of the Danish TV series, The Killing.
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