Select Committee on Environment, Transport and Regional Affairs Memoranda

Memorandum by the Association of Council Secretaries and Solicitors (ACSeS) (LAG 22)

  1.  The Association represents senior lawyers and administrators in local authorities throughout the United Kingdom. The Association has welcomed the opportunity to discuss with officials from the Department of the Environment, Transport and the Regions, the relevant primary and secondary legislation and statutory guidance in draft form; the Association welcomes the opportunity to submit its views to the Environment Sub-committee on the final outcome, and on the experience of its members to date.

  2.  The Association's views are set out below under the headings in the Committee's Press Notice of 30 November 2000.

  3.  General. As a general point the Association regrets the degree of prescription under Part 2 of the Act. Whilst admiring the industry of colleagues in the civil service who have produced the guidance, regulations and directions, the volume of material to be issued in two substantial ring folders to each local authority represents an unprecedented degree of detailed design by central government.

4.  Will the changes contribute to greater efficiency, transparency and accountability in local government?

  4.1  The introduction into the second draft of the statutory guidance and the relevant draft regulations of a "forward plan" considerably changed the emphasis from a quick decision-making process, to a potentially elaborate mechanism for compiling and publicising likely "key decisions" four months in advance. These proposals

    —  are considerably more elaborate than provisions in the Local Government Act 1972 and the Local Government (Access to Information) Act 1985;

    —  will be difficult to achieve so far in advance;

    —  will require authorities to publish in advance of decisions, a list of the documents already submitted to the decision maker at the date of publication of the forward plan, in respect of the decision to be made;

    —  will arguably make the management of political business extremely difficult, in practice.

  4.2  The Association welcomes the flexibility given to authorities to interpret "key decisions" particularly as a result of the inclusion of such words as "material", and "significant". In practice however there is considerable doubt that this flexibility will compensate for the administrative and political difficulties referred to in the previous paragraph.

  4.3  The Association notes that most of the plans or strategies in the proposed Policy Framework do not require full council approval under existing legislation, and may be delegated to a committee under Section 101 of the Local Government Act 1972.

  4.4  That being so, the requirement in the Guidance and Regulations that the proposed plans and strategies be submitted to full council, represents the introduction of an unnecessary administrative burden. A greater number of full council meetings than would otherwise have been the case, will undoubtedly result.

  4.5  The concept that this will enhance the role of the full council, is misconceived. It will give councils more to do, but many of the plans and strategies in the proposed list are plans to achieve policy objectives, and are not themselves truly part of the council's corporate policies. In particular the following plans are purely implementation strategies rather than true policy documents:

    —  Annual Library Plan.

    —  Children's Service Plan.

    —  Crime and Disorder Reduction Strategy.

    —  Early Years Development Plan.

    —  Youth Justice Plan.

  4.6  The Association believes that a list of policies and strategies should be specified in the Guidance but on the basis that local authorities should be able to choose whether or not to require final approval by full council in respect of most of them.

  4.7  Disputes Mechanism: It is disappointing to see the continued inclusion of a power of overview and scrutiny committees to refer matters direct to the full council. Reports direct to council will undermine the accountability of the executive and will confine the public as to who is responsible for the final decision. It should be sufficient for public accountability to require the executive to reconsider, and publish its final view.

5.  Impact of the new arrangements on the role of councillor, officers and on the local electorate

  5.1  The introduction of an executive will:

    —  lead to full-time local politicians.

    —  produce tensions between individual members of the executive and chief officers, where their portfolios coincide;

    —  test the ability of senior officers to maintain support, and the appearance of support, to all parts of the council;

    —  place a significantly increased burden on the monitoring officer in ensuring that the decision making processes and arrangements for access to information are properly administered.

  5.2  It remains to be seen whether these internal arrangements have any significant impact on local electorates. The general view within the Association is that without considerably more flexible voting arrangements, the turnout at local elections is unlikely to be improved by the introduction of new political structures.

6.  Experience of overview and scrutiny committees, area committees and other devolved arrangements.

  6.1  The Association welcomes the reference to officer decisions normally being scrutinised "only as part of a review of service plans or during the Best Value process".

  6.2  The Association also welcomes changes to the Guidance to the effect that decisions of non-executive committees will not normally be the subject of scrutiny.

  6.3  The Association continues to be concerned, however, about the right of any member of a committee to ensure that an item is placed on the agenda of an overview and scrutiny committee under Section 21(8) of the Act. This right is open to abuse, particularly where a council is hung or there is only a small majority. It may be used to circumvent a decision of a committee not to call-in an executive decision.

  6.4  Call-in generally is open to abuse. Councils are asked "to ensure that [such] a "call in" procedure is not abused" but abuse is a real possibility, particularly in authorities with no overall control or a small majority.

  6.5  The Association welcomes the flexibility now given to appoint non-executive members to joint area committees, particularly given the likely involvement of area committees in community planning functions.

7.  Adequacy of the statutory guidance

  7.1  The courts have said that "while guidance and directions are semantically and legally different things", in practice statutory guidance was not to be put on a par with the many forms of non-statutory guidance issued by departments of state. (R v London Borough of Islington, ex parte Rixon, 1997). It may be, therefore, that the courts would interpret Section 38 of the Act and the duty of authorities to "have regard" to the Secretary of State's guidance, as creating a presumption that it should be followed.

  7.2  If that were to be the case, the different shades of advice within the guidance (something "should" be done a certain way, the Secretary of State "advises", and so on) will be difficult in practice to assess and to attach proper weight.

Mike Kendall,

Chairman of Democratic Services Committee, ACSeS

January 2001

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