Select Committee on Transport, Local Government and the Regions Memoranda


Memorandum by Brighton and Hove City Council (LGA 30)

  As a significantly sized Unitary Authority the City Council has considerable experience of various elements of the LGA 2000. To keep within the stipulated length of memorandum however our submission will focus on the four key areas suggested in the call document namely:

    —  the economic, social and environmental well-being power (not duty)

    —  the new arrangements with respect to executive decision making

    —  provisions relating to the conduct of Councillors and Officers, and

    —  provisions relating to Local Authority Elections.

(1)  POWERS OF ECONOMIC, SOCIAL AND ENVIRONMENTAL WELL-BEING (PART I)

  1.1  The Council welcomed the opportunities heralded by the White Paper (Modern Local Government: In Touch With The People) to provide authorities with broad powers to respond to local people and local interests. In reality we have been disappointed at two or three limitations curtailing the use of the well-being power. These limitations relate to charging, trading, and the wording of Section 2(3) of the Act.

  1.2  Charging: In February 2001 the Council wrote to the DETR pointing out that neither the Act (nor the then draft guidance) provided specific powers to charge in conjunction with well-being unless there was power in previous legislation allowing for charging for a specific function that could be regarded as promoting well-being. The Department's intention to authorise specific charging for individual services under Section 150 of the LGHA 1989 was noted as was the considerable delay in issuing regulations thereunder. The fundamental issue was that there seemed to be an absence of any underlying principles to govern approach to the issuing of regulations thus each topic was independently considered prior to an individual regulation being issued. The consequent delay was regretted. With the new White Paper (Strong Local Leadership: Quality Public Services) we note that instead of using Section 150 of the LGHA 1989 the Government proposes to use powers under Section 16 of the LGA 1999 to make an order giving a general power to charge of discretionary services. Whilst this is very welcome it is long overdue and informal soundings from the Department suggest that the proposed timescale of laying an order by July 2002 may well be optimistic.

  1.3  An example of how this has restricted a way that the Council wishes to use the well-being power is in relation to the introduction of a Partners Register (similar in nature to the partnership register recently introduced by the Greater London Authority). To deliver this the Council would rely on Section 2 of the LGA 2000. Since the Council is unable to charge for this discretionary service it made application to the Secretary of State requesting a charging order be made under Section 150 of the LGHA 1989. The DTLR responded by saying that we would need to wait for a Section 16 order under the LGA 1999 and that July 2002 was the most optimistic timescale. This does not help us deliver a much-wanted service. DTLR have been unprepared to issue a Section 150 charging order now and repeal it once the Section 16 order had been laid. It is hoped that the new orders expected later this year will ease the situation but until requisite consultation papers are published the extent to which greater freedoms will be provided remains unclear.

  1.4  Trading: the issues with relation to trading are very similar to those regarding charging above. The new White Paper (page 121) states the intention to promote wider powers to trade for all local authorities "when this helps to achieve Best Value". Clearly further guidance is required.

  1.5  Wording of Section 2 (3) of the LGA 2000.

  Section 2 (3) of the Act states that:

    "In determining whether or how to exercise the power under Sub-Section (1) the local authority must have regard to their strategy under Section 4."

  In December 2000 the LGA published "Power-pack—using the new power to promote well-being". The LGA therein stated that the power could be used even if the Council did not yet have a community strategy in place. This answer is in direct contradiction to a recent opinion sought by the Council on another matter. Counsel was of the opinion that until the Council had formulated its community strategy under Section 4 it could not make use of the well-being power since until that occurs there is no strategy to which the Council can have regard. This situation in the view of the City Council requires immediate clarification notwithstanding our ongoing work to produce our community strategy.

(2)  NEW ARRANGEMENTS WITH RESPECT TO EXECUTIVE DECISION MAKING (PART II)

  2.1  The approach taken by the City Council was to engage with the public on options for future executive decision making from a neutral standpoint. We therefore set up a Select Committee (Chaired by our Executive Councillor for Modernisation with an independent member from OPM) to take evidence from a variety of stakeholders including Health partners, the Police, the public, local businesses and other local authorities operating different systems. We further commissioned a series of interviews by Paul Corrigan (again from OPM) from all of our councillors to collate and synthesise their views.

  2.2  As a Council we believed that various elements of the Modernisation Agenda would benefit our local community. A cross party Councillor Working Group began public consultation in two particular elements externally (on Community Planning and Citizen Engagement) and internally on the executive decision making process. The outcome of this Working Group was that we quickly implemented on a trial basis the new Cabinet system. The system took seriously a variety of different roles that councillors would need to play, we created job descriptions for Cabinet Members, Lead Councillors and Scrutiny Councillors and allocated time and resource to setting the process up. We regrettably found that the legislative agenda for creating democratic structures was prescriptive and top down with comparatively little room for local discretion or flexibility (eg when we tried to innovate with the "lead councillor" role we felt we received little encouragement from the DETR). We also believe that the legislative approach forced us into a more adversarial "Cabinet/Scrutiny" split at an early stage, which was not helpful to the overall development.

  2.3  We trialed the system for a period of 12 months and then undertook a comprehensive review of options in the Act. Our first round of consultation on the three options was undertaken but we were not able to test with our public the revised executive committee arrangements. The first round of consultation gave support for the mayoral option and during our next consultative phase we intended to consult on the mayoral option with the fallback position of Leader and Cabinet. At the eleventh hour the legislative position regarding consulting on the fallback position of executive committees (which had previously been reserved only for smaller Councils) was changed so that local authorities such as ourselves could consult on this option. In order to engender a genuine debate within the City we therefore went to referenda on the basis of a mayoral model and a revised executive committee system. As a Council no overtly party political stance was taken though some Council members openly campaigned for "YES" and "NO" votes for a mayoral system. The ultimate referenda on 24 October 2001 led to a majority vote for a revised committee system.

  2.4  During the process we have undertaken a range of consultation via surveys, citizens panel, questionnaires as well as formal referenda and all of our approaches have been evaluated by Colin Copus at the University of Birmingham INLOGOV (and a co-author of the DTLR guidance).

  2.5  We are currently consulting on creating an executive committee system that designs out many of the perceived disadvantages of the previous committee system and which ensures legitimate and open democratic debate and the smooth and efficient delivery of the Council's significant business agenda.

(3)  PROVISIONS RELATING TO THE CONDUCT OF COUNCILLORS AND OFFICERS (PART III)

  3.1  The decision of the government to put ethical standards at the heart of the modernisation agenda for local government in Part III is to be welcomed. Brighton & Hove City Council set up a Standards Committee well in advance of the legislation and have in many ways led in this field. It co-hosted the Ethical Standards conference with IDeA in February 2001, hosted the regional launch of the Standards Board in January 2002, contributed to the discussion leading to the regulations governing the setting up of Standards Committees and the model code of conduct for Local Authority Members.

  3.2  Most of the press coverage and political discussion in relation to the Local Government Act 2000, both locally and nationally, centred around the provisions of Part II (Executive Arrangements). The Council had an ambitious implementation programme/timetable for Part III, based on what was understood to be the government's timetable. Unfortunately, there were a series of delays in issuing the consultation paper and the model code, which in turn disrupted our plans. The Council is now set to adopt a local code in March 2002. The following are observations on the key new legislative and other provisions governing Member conduct as we see them.

  3.3  Size and composition of Standards Committees. Brighton and Hove has a larger than average size standards committee (seven councillors, seven independent members and one representative from the parish council.) The Standards Committee has adopted more of an educational and policy development/review role and less of a discipline-orientated role. The large number of co-opted members has enabled us to recruit people from a variety of backgrounds including academics, businessmen and magistrates thus enhancing the quality of debate. It also made it possible to progress projects through sub-groups (volunteers from the committee.) We have reservations about the mandatory co-option of parish Council representatives. Although this would make sense in authorities with a large number of parish councils in their area, in authorities like ours (with one parish council) there does not appear to be the same justification.

  3.4  The role of the Monitoring Officer and the Standards Committee: the Act provides for the statutory complaint procedure to be triggered when "a person makes a written allegation to the Standards Board that a member has breached the local code of conduct." There is lack of clarity as to what happens to complaints received by the Monitoring Officer not addressed to the Standards Board or not alleging a breach of the code of conduct in terms. Will such complaints have to be forwarded to the Standards Board, or is there any residual discretion to deal with such cases locally? The Act also provides for the Standards Board to refer complaints to the Monitoring Officer. Until regulations are made under section 66, it is not clear how such complaints are to be dealt with. The sanctions available to the Standards Committee are also dependent on the regulations. Given that many Local Authorities have already adopted local codes, the delay in making these regulations means all complaints will have to be dealt with by the Standards Board. There must therefore be concern at the impression that may give to members of the standards committee, many of whom, joined it in the expectation of dealing with issues of conduct, including complaints.

  3.5  Equality of Opportunity. Paragraph 2 (a) of the model code requires members to promote equality "by not discriminating unlawfully against any person." During the consultation stages, the council suggested that there should be something more positive than simply not breaking the law. We remain of the view that this is too limited and, indeed, it is difficult to see that it adds to our existing legal duty.

  3.6  Overview and Scrutiny. In the initial consultation draft, membership of a decision-making committee was a prejudicial interest under both the executive and alternative arrangement models. For some reason it was left out of the model code for authorities with alternative arrangements. We are of the view that this should have been retained and will include it in our local code.

  3.7  Membership of Private Clubs: The Council has a voluntary register whereby members register membership of closed organisations. The Council welcomed the provision in the consultation paper, which would have made these compulsorily registerable. The model code when issued left these out (apparently because it was considered to be inconsistent with the Human Rights Act.) This is an issue that may affect the way members are perceived by the public and it would be useful if further consideration could be given to finding ways of incorporating the provision in the model code or local codes. Pending this the Council intends to encourage members to register membership of private clubs.

  3.8  Dispensations for interests: Our initial expectation was for the Standards Committee to be given the power to grant dispensations. After receiving contradictory messages we now welcome news that draft regulations will be tabled in parliament next week. This in our view is essential to ensure co-opted members can be recruited and retained with a sense of real authority.

4.  PROVISIONS RELATING TO LOCAL AUTHORITY ELECTIONS (PART IV)

  4.1  The main electoral elements deal with frequency of elections and the way these can be extended to elections by halves as well as thirds and whole Council elections. This has limited impact on Brighton and Hove City Council as a decision was made by full Council in October 2000 to retain whole Council elections as part of our submission to the LGC for the new electoral arrangements. This was therefore recommended by the LGC and recently approved by the Secretary of State.

  4.2  Other electoral aspects of the act are concerned primarily with mayoral elections, which, as stated above, is not now an issue for us. The mayoral referenda in Brighton and Hove was conducted last year and was fundamentally run from the Local Authorities (Conduct of Referendums Regulations) 2001.

5.  CONCLUSION

  5.1  Brighton and Hove have welcomed the LGA 2000 and the new White Paper. We believe that Local Government in the UK has democratic legitimacy in the delivery of local and national priorities that transcends the notion of "earned autonomy" (arising for a health model that lacks that democratic mandate discreet from Central Government).

  5.2  The Council backed the Government in signing the Council of Europe Declaration of Local Self Government and thus welcomes the spirit of Central—Local Partnership in the key roles of local community leadership and service delivery evident in the Secretary of State's recent speeches on Local Government. We see the LGA 2000 as part of an ongoing process to achieve these ends.


 
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Prepared 22 April 2002