The executive: size, functions,
103. In two out of the three political models in
the bill, there is provision for an appointed executive, drawn
from the full council, and headed by an elected mayor or council
leader. (In the other model, the council manager is the executive.)
104. The size of the executive must not exceed 10
councillors or 15 per cent of the council, whichever is the smaller,
including a directly elected mayor. Executives and executive committees
will not have to reflect the political balance of the authority:
in other words, they can be one-party.
105. The division of functions between the executive
and full council will be prescribed by regulations made by the
Secretary of State. The White Paper sheds a little light on what
the Government envisages those responsibilities might be, namely
- lead the community planning process;
- lead the preparation of plans and strategies;
- consult and draw up the annual budget, including
capital plans, for submission to the full council;
- lead the search for best value;
- take in-year decisions on resources and priorities
to deliver the strategies and budget approved by the full council,
consulting with other councillors and stakeholders in the local
community if necessary;
- be the focus for forming partnerships with other
agencies and the business and voluntary sectors locally to address
The White Paper goes on to say that the executive
will be responsible for implementing council policy and delivering
services in line with the council's approved budget policy framework.
It is expected that the executive will have its own policy agenda
and that it will have "a great influence over the priorities
of the council and the policy framework and budget within which
it will be required to operate".
Within the executive, it is expected that specific portfolios
will be given to individual members. The executive, then, will
call the shots.
106. The bill has rather more to say about the way
in which the executive may discharge its functions. This would
vary under the different models. Thus:
- under the elected mayor/executive model, the
mayor can decide whether to discharge any functions himself, or
that the functions should be carried out by the full executive,
single members acting alone, committees of the executive, or officers.
(The executive or single members thereof can also make delegations.);
- under the council leader/executive model, the
leader may decide as above, or the council may decide in the agreed
- under the elected mayor/council manager model,
functions may be discharged by the executive, the council manager
or a nominated officer.
110. Under the mayor/council manager system a deputy
manager may be appointed. The manager may attend and speak at
council meetings. And advisory committees may be appointed to
advise the mayor/council manager.
111. Turning first to the question of size, many
witnesses commented adversely on the over- prescriptive provisions
in the bill. The LGA wrote that, while they agreed that smaller
executives would work better than larger ones, "the rigid
application of the constraints in clause 2 (7)" relating
to size would "cause a number of unnecessary practical difficulties".
In a small unitary authority like Rutland County Council with
only 20 members, the executive would number no more than three
under the formula set out in the bill. The effects would be: that
members would be overburdened by the weight of their responsibilities;
it would inhibit authorities from organising the allocation of
functions in the manner they wished, for example by including
some cross-cutting as well as service-based portfolios; and it
might inhibit the development of multi-party executives, or the
attainment of party balance, in those authorities who wished to
go down the multi-party route.
The London Borough of Hammersmith and Fulham pointed out a further
difficulty, that fixing the size of the executive as a percentage
of the size of the council "might act as a perverse disincentive
to authorities contemplating a reduction in overall council ...
size ... as part of their overall modernisation process".
Others saw the constraints leading undesirably to wider delegations
112. The optimum size of the executive was widely
seen as being a "function of the extent of the services provided,
and not ... a product of an historical decision about the number
of elected members".
113. The Committee shares the Government's and the
LGA's view that smaller executives are to be preferred over larger
ones. But we also have considerable sympathy with witnesses' arguments
on the rigidity of the proposals in the bill. We think that the
effect of expressing the size of the executive as a percentage
of the membership of the council will clearly have some very perverse
and undesirablepossibly unexpectedoutcomes. For
that reason, we recommend that the size of executive should
be set on the face of the bill at not fewer than 6 and not more
than 10, leaving the authority to decide on its preferred size
having regard to functions and allocation of portfolios. Deputies
or substitute members should be specifically disallowed.
114. Witnesses were also concerned about the functions
which are unlikely to form part of executive arrangements and
whether or not the split will always be practicable or desirable.
As the draft bill stands, the Secretary of State will specify
in regulations what local authority functions may not be performed
by the executive and what may but need not be performed by the
executive. But there is no hint at all in the bill itself as to
what the criteria will be on which the Secretary of State will
decide these things. The White Paper, by contrast, confidently
asserts that "the legislation is also to require, in all
the new forms of local governance, that regulatory responsibilities,
such as licensing or the granting of planning permission, are
not the functions of the executive but are to be carried out by
the full council, or delegated as permitted under the council's
new constitution, for example to a committee".
It is also to be presumed in this context that "the legislation"
refers to the regulations, as yet unseen.
115. Local authority witnesses expressed considerable
unease about this lack of precision as to what will and will not
fall to the executive to perform. One authority which had already
embraced new political management structures with an executive
wrote that "In drafting any regulations to specify what are
executive functions there may be certain grey areas".
Rochdale Metropolitan Borough Council, with its highly devolved
arrangements, wrote that "it may not be appropriate for the
executive to operate in a similar way, with exactly the same responsibilities
in every council".
The LGA reported that some councils felt that the regulations
could be used to introduce prescription through the secondary
legislation route, without consultation.
They felt that "greater local flexibility and ownership"
could be secured by allowing the council to determine the allocation
of functions to the executive.
116. The Committee find the current uncertainty
over executive functions unsatisfactory. While we cannot agree
that the allocation of functions should be left entirely to the
discretion of the authorities, we consider that there is a strong
case for placing the criteria to be observed by the Secretary
of State in framing any regulations on the face of the bill. Our
list of types of functions which ought not to be discharged by
the executive would include development control, statutory regulatory
duties (like licensing, housing and environmental health regulatory
duties) and quasi-judicial functions. The Secretary of State should
by regulation be enabled to amend the list.
117. Witnesses also acknowledged the difficulties
in defining the cut-off point between policy formulation and implementation;
in practice they are mutually supporting processes. One aspect
of the proposed split between executive functions and council
functions attracted particular attention, namely planning. While
nothing is set out in the draft bill as currently drafted, in
the White Paper the Government states that while it expects development
plans will be prepared by the executive (possibly involving other
councillors in the process), decisions on planning applications
(development control) will continue to lie with the full council
or a committee or sub-committee. A number of witnesses found difficulty
with this separation. The Royal Town Planning Institute wrote
that it was impractical to separate planning from decision-making
and that the possible involvement of the councillors in the planning
process would not work. "We believe", they wrote, "that
a fundamental difficulty in the new structures is the separation
of plan and policy making from development control, and their
allocation to cabinet and committee respectively. We think this
would be a huge mistake. Plan-making is a collaborative process
that needs to be as open as possible, and as accessible as possible,
to the community and all its elected representatives. Development
control is notor should not bean after-the-fact
regulatory process. It is instead the implementation of the plan,
and as such continuously feeds back into it, identifying the changes
in circumstances which require changes in criteria, revision of
policies and supplementary planning guidance. It is vitally important
that those who guide the preparation of plans should be, as far
as possible, those who work to implement them".
The London Forum of Civic and Amenity Societies saw these proposals
as a weakening of planning controls. They wrote, "the planning
process stands to be weakened under the new arrangements by the
separation of strategic planning from development control-related
matters calling on the same professional disciplines, but already
becoming separated by departmental restructuring".
118. The Committee asked officials how under the
new arrangements the executive might have an influence on the
planning process, as an extension of its strategic role. (After
all, the executive will continue to be members of the full council.)
The answer we received was that "if the proposition was that
the executive members should be able to play a part given that
they might have planning functions in a strategic sense, I think
that is a bit of analysis that we will need to carry through".
119. The Government's intention to separate strategic
planning from decisions on planning applications is thus viewed
by practitioners as undesirable; and the potential conflict of
interest whereby members of the executive may be party to a council's
planning decision has not yet been thought through. The Committee
observe that the potential tensions between the strategic planning
and development control functions are not new and can occasion
problems even within a traditional authority. It is possible that
new executive arrangements will heighten these tensions. Government
guidelines should therefore provide that local authorities operating
under new structures provide in their constitutions working arrangements
which ensure that effective exchange of information takes place.
120. We are conscious that this bill as drafted is
not a vehicle for changes in planning law. When such a bill is
brought forward, we would expect that issues raised in the Nolan
Committee's report on The Standards of Conduct in Local Governmentsuch
as deemed planning consentwill be addressed.
121. Many witnesses were concerned that decisionsparticularly
those which were taken by an individual member of the executiveshould
be properly recorded. While the draft bill makes no mention of
the recording of a decision, the White Paper says that "Where
a meeting of some or all of the executive has taken a decision,
the duty to create a record of the decision and the reasons would
fall upon an officer of the authority. Where the decision has
been taken by an individual member of the executive, it is that
person who would be required to ensure that the necessary record
is created and made available to the monitoring officer. The monitoring
officer would then be under a duty to ensure that the record becomes
available as described above. Failure to create such a record
will be a criminal offence".
DETR saw no problem with this: "... all the existing pressures
arising from the possibility of judicial review, the possibility
of an ombudsman review for maladministration, will continue to
support the proper recording of decisions, the reasons for decisions".
122. But practitioners were more anxious on this
score. ACSeS told us that it was desirable that "the chief
executive, the head of the paid service, had prior access to decisions
by the executive before they were finalised. It is not adequate
in our view ¼
that the monitoring officer must ensure that decisions are properly
recorded and published. It is necessary, in our view, to ensure
that there is proper prior access to decisions, the decisions
are made on proper grounds, that those grounds are recorded and
the grounds are properly published".
The Legal Services Department of Birmingham City Council wrote
that "The bill has little to say on how the executive will
actually operate as a decision-making body ... this is one example
where more detail should be on the face of the bill".
SOLACE felt that the White Paper did not sufficiently clearly
distinguish between the roles of members and officers in decision-making"the
articulation of their distinctions is crucial if we are to progress
to a system where more decision-making capability is delegated
to a few individuals, outside of a formal committee system ".
SOLACE went on to say that "Decision-making in different
environments will require new approaches to recording decisions
to ensure that appropriate audit trails are available to check
on decisions and decision-making processes".
The LGA thought that if members of the cabinet or executive take
decisions then they should be recorded by an officer.
An academic witness wrote that guidelines for authorities should
develop an officer/member protocol which makes it clear what constitutes
an executive decision-making meeting and who should be present
to make such a meeting valid.
123. The Commissioner for Local Administration in
Wales and the Vice Chairman of the Commission for Local Government
in England went a little further. They called for an "audit
trail" which consisted not only of a record of the decision
but a record of the advice given by professional officers on which
the decision was based or why the advice was departed from.
(We consider the wider issues of "openness" below at
paragraph 171 et seq.)
124. The Committee share witnesses' unease about
the Government's current thinking on decision-making as set out
in paragraph 3.64 of the White Paper. We agree with those witnesses
who argued that clear procedures need to be established for the
recording of decisions of the executive, especially decisions
taken by individuals. We think that officers of the authority
should be consulted beforehand in all cases and should record
formally all decisions taken. We also think that provision should
be made so that an audit trail exists of each decision, and factual
and analytical material supporting it.
125. We recommend that a framework of principles
governing the recording of decisions of the executive be inserted
on the face of the bill, including: the prior consultation of
officers; recording by officers; and the availability of factual
and analytical material supporting each decision. Material recorded
should, in the case of planning decisions, include records of
any contact, whether formal or informal, between applicants or
their agents and officers or councillors. In the interest of openness,
which we consider further below, such decisions and material should