Memorandum by Solace (LGA 14)
1.1 The sub-committee requested submissions
setting out how the new arrangements introduced as a result of
the Act are working. Solace has canvassed its members and submits
the following response to the sub-committee for consideration.
We have structured our reply in the same order as the Act itself,
taking each aspect separately.
1.2 All the comments made should be read
in the light of the fact that local government is not homogeneous.
It is felt that this may be increasingly over-looked by central
government, evidenced by the fact that District Councils are regularly
sent correspondence destined for social services authorities,
and frequent mention is made of unitary government with no reference
to two tier authorities. Small councils submitted evidence as
to not taking up the "fourth option" in the Act because
preparations for cabinet government were in hand and they did
not wish to brand themselves as small. Another noted "as
a small rural district the principle difficulty we have is that
the legislation was not drawn up with our circumstances in mind".
1.3 In this debate and in the discussions
about the White Paper many District Councils noted the fact that
they are responding to all the same requirements as larger unitary
authorities but with far smaller resources, particularly in respect
of employee numbers and range of posts not already deployed in
service delivery. Responding to the Best Value and other monitoring
agendas has in some cases necessitated expenditure on posts which
has been found from previously service-directed budgets. One Council
notes, "The expectations of all local authorities now causes
significant strains for small organisations like ours with a lack
of corporate resources. We consistently see the problem of trying
to translate Government policies and expectations into our circumstances
when they were drawn up, often for urban unitary settings with
executive decision-making and resources targeted at deprived areas.
We don't hit any of these buttons but we are still doing our best
to operate forward looking local government for the 21st century!"
1.4 Recent discussions about corporate assessment
procedures displayed a clear tendency to give precedence to what
were called "upper-tier" authorities, with almost no
mentioned being made of the 238 district councils. This omission
is now being addressed but serves to demonstrate further the point
that local government is composed of a range of different types
of authorities which, while all providing local services, face
considerably different challenges in so doing.
1.5 Unitary and shire authorities report
greater satisfaction and improved working relations with monitoring
agencies and government. However, they do note the need to manage
the diversity which remains within local government. The message
is "We can all manage difference, but we would like to remind
government that one size does not fit all".
2. THE POWERS
2.1 These powers were welcomed by many authorities
but we are concerned that Part 1 of the Act may have lost its
way both in the short term and in the longer term. It needs to
be re-launched in a more meaningful way.
2.2 In the short term there has been the
conflict of counsel's opinions as to whether Section 2 can be
used ahead of the adoption of a community plan. There is still
confusion here and much of Local Government feels that they can
not use these powers without a Community Plan. The longer-term
problem is as to how this power inter-relates with the whole framework
of statutory powers and duties already available to local authorities.
There are many schools of opinion about this. There are some who
believe that we can, effectively, throw away all the service based
law books and use Section 2 Local Government Act 2000 as the foundation
for virtually all our activities. This is seen as a way of getting
around all those inconvenient restrictions upon more specific
powers, ie "ultra vires" is dead. While welcomed there
is little evidence that this is being acted upon because of different
2.3 One example involves Development Control.
Broadly the Planning Acts require each application to be determined
taking into account the "development plan" and "material
considerations". It has been suggested that Local Authorities
could avoid the discipline of "material considerations"
(as have been built up in precedent over the years) and use the
powers of wellbeing as a way of taking into account all sorts
of immaterial considerations!
2.4 We have heard little since its launch
as to howor even ifit is being used. Although its
introduction was accompanied by guidance notes of various kinds,
for many legal advisors in local government that launch was a
false dawn. At some point its ambiguous form together with experience
of its use by practitioners needs to be reviewed. Doing so would
then allow for a re-launch. Without such a re-launch, we suspect
it will start to gather dust on the shelves of cautious local
government lawyers. It is felt that a more rigorous approach to
co-ordinate the use of these powers needs to be taken.
3. NEW POLITICAL
3.1 These raise expectations of elected
Councillors which are different and far in excess of those previously
required. Higher and more frequent investment of time, a higher
standard of aptitude and ability and a greater need for, and time
expenditure upon training are all aspects which are leading, in
some instances, to mass resignations from councils. This is happening
in particular in areas where new electoral boundaries are requiring
all out elections, offering an unusual opportunity for members
to consider their position in respect of the greatly increasing
demands upon them. A large element of concern is witnessed by
reluctance on the part of some councils fully to delegate powers
to individuals, preference being for these to remain jointly held
by the executive.
3.2 The implementation of the new law allowing
individual members of the Executive to take executive decisions
on their own varies around the country. It appears that it is
dependent on the culture of the authority, the ability and character
of the executive members and the portfolio that they hold. Some
decisions taken by portfolio holders can be of a strategic nature
and fairly cross-cutting, for which they often feel they need
the support of their fellow executive members. In these cases
the decisions tend to be made by the full executive rather than
the individual members. In some instances, for example in-housing
there are examples of the executive members feeling that the relative
autonomy of the service and the Housing Revenue Account allows
them to take decisions without reference to their fellow executive
members. These types of decisions are often, therefore, taken
by the relevant executive member.
3.3 The concern for local government is
that this new model does not seem to be raising the interest of
the public in local government and there is still no evidence
that this is increasing the desire for members of the public to
come forward and become local councillors. Indeed, if anything,
there may be a trend to demotivate backbench councillors who we
may find are difficult to replace.
3.4 Nevertheless, the bulk of local authorities
seem to be able to make their new leader and cabinet models work.
In many instances across the country, these are starting to bed
down and some people have said that they are speeding up the decision
making process. The quality of debate is increasing and particularly
in shire and unitary authorities members are grasping their delegated
3.5 This, in itself, raises questions of
the officer member relationship and overall council management.
It is felt important to separate the executive from the professional
administrative functions and to open a wide ranging debate on
the new relationships required.
3.6 Most elected councillors have traditionally
been less aware of employment law and human resource issues than
their senior management and chief executive colleagues. The marriage
of members' new authority in holding delegated power with the
requirements of employment law and the Human Rights Act will require
longer than a honeymoon period to settle into a constructive partnership.
3.7 The stronger emphasis on the performance
agenda but with (potentially) weakened managerial and organisational
leadership is challenging. The emphasis on community leadership
and on the role of political executives always looked to have
the potential to weaken managerial and organisational leadership.
The risk was that political and organisational leadership would
be seen as "either...or" (a zero sum game, as opposed
to a non-zero sum game in which both political and organisational
leadership could become stronger). We are seeing evidence that
in some places politicians see themselves as substitutes for professional
3.8 The new White Paper gives insufficient
emphasis to the part which managerial and organisational leadership
and capacity will have to play in delivering what is largely a
performance agenda. The answer, if there is one, probably lies
in the corporate assessment framework which the Audit Commission
will use to assess authorities. They need to ensure that organisational
as well as political leadership is properly assessed and reinforced.
They need to be clear about the difference between executive and
3.9 The new political structures demand
a political group management structure similar to that which is
required in the officer structures. Politicians on executive or
other committees need to carry out their responsibility to consult
and communicate with other members in ways which did not occur
under the previous arrangements. The requirement for members and
political leaders to act in ways which are representative of the
whole group's agreed views is onerous and risks either all issues
being re-debated at full council meetings, or less transparently,
issues only being debated within political group meetings and
public meetings continuing as the "set pieces" which
the new arrangements attempt to avoid.
While there does not seem to be any major problems
with the executive/cabinet style per se, there are still some
issues around the scrutiny role. The Local Government Act sets
up overview and scrutiny committees as a counter-balance to the
executive. The role of these committees is twofold. Firstly, to
scrutinise decisions taken by the executive and to ensure public
accountability (scrutiny). Secondly, the overview role of helping
to advise the executive members and to look at specific policy
3.10.1 It would appear that effective overview
and scrutiny is patchy across authorities and even in many of
the authorities where overview and scrutiny could be said to be
working, the councillors who make up the overview and scrutiny
committees are not particularly happy in their new roles.
3.10.2 Many members are finding the scrutiny
aspect relatively easy, in that members have for many years scrutinised
officers who have taken reports to the old style committees and
questioned them on the content of their report and their recommendations.
However, in the new system the frustration comes for many members
in not being able to influence the final decision by being able
to vote when that decision is being taken. This was a fundamental
part of the government's proposals to reduce the number of councillors
in the decision making role. Many councillors now feel excluded
from this process, even though they have the opportunity to scrutinise
3.10.3 A number of authorities have been
quite successful in getting their overview and scrutiny committees
to look at detailed operational and policy matters and to make
recommendations to their executive colleagues. In this way the
councillors do feel more involved but, again, resent the fact
that they do not have a final say on the adoption of their proposals.
3.10.4 In summary, whilst the business of
local authorities continues and the executive cabinets can be
said to be working effectively, many councillors are still very
unhappy with their role on overview and scrutiny committees, even
when these are also working effectively.
3.11 Area Committees
3.11.1 Local and area committees are being
set up, again with a range of success. One council notes, "Our
approach to Area Councils has proved to be successful. There are
eight (too many!) serving our 79,000 people and six towns. Attendances
frequently exceed 100 and we have devolved part of our capital
programme that is increasingly invested in community projects
rather than council infrastructure. Police make good use of these
meetings", while another reports that while committees are
working well in one part of the district, attendance is almost
non-existent in another part of the same district.
3.11.2 Councils in two tier authorities
are running joint area committees, which are also being attended
by Police and Parish and Town Councils. Many authorities have
developed small budgets to fund area committees but the resultant
bureaucracy seems, in some instances, to their expenditure being
limited. One council quotes an example of an item being purchased
using county Locality funding, in partnership with the District's
area committee, which the parish council did not in fact require!
3.12 Partnership Working
There is a sharper accountability through elected
Mayors and political executives but a blurring of responsibility
in the proliferation of partnerships. It is increasingly difficult
to identify responsibility when so many major projects, and even
community leadership itself, are significantly subsumed within
LSPs and other partnerships. There is also the risk that the lines
of accountability for many participants in such partnerships have
only an imperfect and very indirect element of democratic accountability.
3.13 Local Tax Raising Powers
3.13.1 We have an ideology of sharper political
accountability which lacks the taxation responsibility to make
those responsibilities real; notwithstanding protestations to
the contrary this contradiction is fundamental. The cry of "no
taxation without representation" shows that the link between
the two is a central feature of democratic political systems.
3.13.2 It may have been that when local
authorities were less concerned to change and improve, the options
and possibilities for doing things differently, and better, could
be pursued within the framework of a central grant funded regime.
But as authorities generally get better, and as performance improves,
key choices will increasingly revolve around the possibilities
which can only be created by local choice and local tax raising
powers to support such choice.
3.13.3 While this remains so fundamental,
at a local level, to the democratic electoral process it will
be difficult, especially for councils which have annual 1/3 elections,
to make potentially unpopular tax-setting decisions to improve
3.13.4 The new local governance arrangements
are making this dilemma more transparent, and in some authorities
a healthy debate is beginning about how to "sell" the
value of council services. Greater community involvement and council
accountability should allow the issue of what standard of council
services communities wish to support to be more openly discussed.
3.14 Range of different political arrangements
The whole system aspires to greater accountability
but the proliferation of models and approaches blurs in its complexity.
It has never been easy for the general public to understand the
differences between the different types and levels of authority.
This use of different political systems of political executives
makes it even harder for that to be accomplished. We may have
to face the fact that local political and governance systems are
going to seem even more remote for many people for the foreseeable
future simply because there may not be the clarity which is so
important to understanding, discourse and engagement. The greater
complexity in the legal frameworkboth from the different
forms of political executive and the differentiation of powers
contemplated in the recent White Paper as correlates of the various
performance categoriesfurther blurs understanding.
3.15 Regional Government
There is an emerging 21st century regional agenda...
and 19th century Local Government structures. Much depends, of
course, on what form Regional Government might take, and the process
by which regions might accomplish their aspirations for greater
autonomy in their own governance. There is a need to ensure that
Regional and its associated Local Government is planned and restructured
(if such proves necessary) on a coherent basis, and within a timescale
that does not allow a lengthy descent into uncertainty. Currently
the range of different arrangements risks public confusion and
the issue of representative democracy, which is not being grasped,
is leading to a lack of investment by councils controlled by political
groups different from that which is in control at region.
4. NEW ETHICAL
4.1 Local Government places the greatest
importance upon high ethical standards and was therefore delighted
when after many unfulfilled promises of reform, the nettle was
finally grasped in 1997. However we have to admit to some disappointment
as to the way in which this promise has been fulfilled in practice.
4.2 The time for reform of Ethical Standards
was long overdue. The 1989 reforms did nothing to try to simplify
the then structure but just added more which made things even
more complicated and obscure for the average councillor. So, sweeping
away all the previous layers of control and replacing them with
a single code was a very good idea, but the Model Code which has
been produced does not meet its own objectives. It needed to have
been written in Plain English from the perspective of the councillorrather
than from the perspective of the enforcer.
4.3 It could have been written as a series
of simple, practical advice notes and preferably not in such legalistic
terms. If that was necessary then its introduction should have
been accompanied by helpful advice notes to which the average
councillor could turn for broad advice when s/he did not feel
strong enough to wade through all the wherefores and hereuntos.
4.4 Much greater thought could have been
given to the range of councils affected with a good deal more
pragmatism as to the levels of control needed oversaysmall
rural parish councils. It is questionable to have the full Model
Codewith all its registration dutiesimposed upon
the sort of business that a parish council does for a parish with
say, 100-200 electors. This is already having an impact and its
full effect is yet to be realised, but it is likely to change
the relationships at best and to result in a lack of people wishing
to stand as councillors at worst, particularly at parish level.
The opportunity could easily have been taken to apply the principal
council controls in a graded way which fitted in, in a sensible
way, with the size and function of different ranges of parish
councils. It appears that the "one size fits all" approach
was taken because of a continuing failure to distinguish between
the problems of a large urban area and the very different needs
of small rural parish councils which carry out very few significant
services or functions.
4.5 The result of this error is that it
is likely that for hundreds of parish councils up and down the
country, the whole issue of "Ethical Standards" will
simply not be taken seriously because of its clear irrelevance
to the role of many parish councillors. This would be a lost opportunity.
For the new Ethical Standards to be effective and self-policing
they need to be simple, straightforward, obviously relevant and
important and largely enforced by informal pressure from each
parish councillor's peers. It is our opinion that the Parish Council
Model could fail on all counts and could damagerather than
strengthenthe impact of the new structure.
We were very disappointed that the words "private
club" were removed from the Model Code. This is a major lost
opportunity. Instead of a fresh clean start to new and higher
standards of ethicswe were immediately reminded about the
worst examples of ethics in Local Government and the apparent
powerlessness (or unwillingness) of Government to address the
secretive and insidious nature of such "clubs" with
their, inevitably, prejudiced outcomes for local government.
Not only have the reasons for its removal not
been published but we have not heard or seen anything to suggest
that the temporary problems which caused this last minute change
of heartare being worked on and are to be solved.
4.6.1 The words "private club"
were deleted but other associated words remain without any guidance
to people at the sharp end as to how we are to deal with the confusion
that was thus created. For example, in paragraph 15 of the Model
Code (for principal councils; or paragraph 13 for parish councils)
despite the deletion of "private clubs", paragraph 15
now includes a duty to register "his membership of...any...charity
or body directed to charitable purposes...". So it seems
that having to register membership of Round Table, Rotary or the
Masons would have been contrary to (perhaps) the Human Rights
Actas a "private club", yet a duty to register
membership of any of those same bodies as a charity or a body
directed to charitable purposes would not infringe the Human Rights
4.7 Credibility and Respect
As mentioned above, much of the power of a new
set of Ethical Standards depends upon these two rather old fashioned
words. Some examples of that are given above. But there are others.
For instance, whilst the "big principles" of the new
Ethical Standards and the early drafts were all produced on time,
the detailed implementation has lagged behind with many promised
deadlines having passed and with little information flowing as
to what happened (or is to happen) to the various promises. An
example of this was with the publication of the Code itself which
drifted through eventually to 5 November 2001. The Dispensation
Regulations have been long promised and are not yet in place despite
the fact that a number of councils have (bravely) adopted the
new Code immediately after its publication in November.
4.7.1 There is a continuing lack of certainty
as to the future relationship between on the one hand the Standards
Board and its Ethical Standards Officers and, on the other, Standards
Committees and their Monitoring Officers. It is understood that
the primary legislation may not even allow for a sensible split
of functions to take place. It now appears that the Standards
Board and Ethical Standards Officers will need to deal with all
complaints. That is quite ludicrous not only in terms of workload
(the workload from parishes could be very large) but in terms
of "punishment fitting the crime". We can well imagine
that the Standards Board during its first year will be overwhelmed
4.8 Despite these criticisms, we remain
convinced that the Ethical Standards Review was thoroughly worthwhile.
What disappoints us is the opportunities that have been lost;
we hope that through the work of the Select Committee they can
5.1 Broadly, the new Local Government Act
is welcome. There are some key challenges which are yet to be
met and much more cross-Council debate is required, possibly nationally
led to establish and learn from best practice.
5.2 Attention must be paid to resource issues,
particularly of smaller councils and some blueprints for implementation,
emerging from debate could be standardised preventing use of precious
time or re-inventing structural wheels.
5.3 Finally, in laying down various new
and transparent directions the Act missed the opportunity to embody
in law the requirement to adopt different, more respectful behaviours.
These "soft" issues as described in the recently launched
PSP paper "Making a Difference" (Foster, Parston and
Smith, 2002) are well evidenced to motivate people to improve
performance. Until the so-called soft issues become "hard"
by demand of statute, or by a requirement to be monitored, or
both, they will not be accepted by hard pressed officers slavishly
delivering to more tangible performance indicators, or hard pressed
politicians striving for improved service without seeing that
basic respect and a few "thank yous" all round could
do the trick!
5.4 Local Government is trying to deliver
modernised democracy locally. It would be helpful, occasionally,
to be recognised for what we are achieving rather than criticised
for what may be yet to come.
We look forward to discussing this document