Draft Local Government (Organisation and Standards) Bill Appendices to the Minutes of Evidence - First Report


APPENDICES TO THE MINUTES OF EVIDENCE


TAKEN BEFORE THE JOINT COMMITTEE ON THE DRAFT LOCAL GOVERNMENT (ORGANISATION AND STANDARDS) BILL

APPENDIX 1

Memorandum by the Association of Council Secretaries and Solicitors

INTRODUCTION

  1.  The Association of Council Secretaries and Solicitors (ACSeS) has over 500 members responsible for the management of the legal or administrative functions primarily of District, County, Unitary and Metropolitan Councils in England and Wales. Many members are monitoring officers. It is the single professional body for legal/administrative managers in local government.

  2.  The opportunity to comment on the paper Local Leadership, Local Choice, and in particular on the draft Local Government (Organisation and Standards) Bill is greatly welcomed.

  3.  The current committee system, streamlined by many councils in recent years, has its strengths particularly in providing a balance between political power and openness and in providing a training ground for new members. Nevertheless the Association shares the view that it can often be too rigid and inefficient and not suited to modern demands of speedy decision-making and clarity of accountability. The principles of efficiency, transparency, accountability and high standards of conduct must, of course, form the basis of any revision of decision-making in local government.

  4.  While the Association accepts that these measures will improve the efficiency of present arrangements they will not in themselves enhance the profile of local government with local electorates, or at least not sufficiently to make a material difference to turnout at local elections. The Association believes that a package of measures is necessary, which should include:

    (i)  measures to enhance the financial accountability of local authorities (particularly by substantially increasing the proportion of council expenditure raised from local taxation);

    (ii)  measures to reform the electoral registration and election processes (including measures to allow councils greater freedom to negotiate the timing and location of voting arrangements);

    (iii)  the introduction of community planning powers (with express powers given to local authorities to promote the economic, social and environmental well-being of their areas, including express powers to carry out referendums and other innovative forms of local consultation);

    (iv)  a reconsideration of previous proposals to introduce biennial elections for councils, on the basis that electoral fatigue will inhibit rather than stimulate interest from the electorate."

  5.  In broad terms the organisational proposals should enable the public to be better served in that decision-making, should be speedier and clarify the identity of the individual Executive member. Much however is left to the Regulation and Order making powers of the Secretary of State, for which there are 20 such provisions in the draft Bill. We need to bear in mind we are dealing with local government not local administration and there needs to be some flexibility in organisational arrangements.

  6.  The Association would like to comment on the proposals as follows:

POLITICAL STRUCTURES

Efficiency

  7.  The speed of decision making will depend on the extent to which matters are reserved to the Council or required to be referred to Scrutiny for advice prior to a decision being made. The development of policies or the revision and alteration of existing policies could be judged by the public as interminably slow if proposals are made following many forms of public consultation, advice from area committees and possibly conflicting advice from the Executive and Scrutiny to the full Council.

  8.  This is particularly important in respect of the role of the full council. The broad outline of matters be reserved to the full council contained in the commentary to the draft Bill is supported. It must be left to local determination, however, as to what is reserved to the full council in each case within the general headings of "budget" and "major community plans"; councils will wish to balance the role of the full council with the need to improve the speed and efficiency of the decision-making process".

  9.  There is a risk that both the Executive and the Scrutiny will engage in public consultation in different ways and with different results. Councils will need to develop policy to ensure there is effective consultation and no duplication of effort.

  10.  To what extent will Scrutiny Committees have the budget and resources to discharge their functions effectively? Is this a matter for the Bill (in the form of any express duty to provide adequate resources for the scrutiny function), or for individual Councils to decide?

  11.  The Government paper in paragraph 3.15 indicates that Scrutiny Committees would be required to have the same political balance as the full council. There could be difficulties here where the executive comprises exclusively members of the controlling group who would also have control of the scrutiny under the Local Government (Committees and Political Groups) Regulations 1990. This will tend to make the scrutiny process relatively benign and frustrate councils who otherwise would wish to see the party groups not participating in the Executive having a majority in scrutiny in the interests of public accountability. The Association believes the Regulations should be relaxed to allow this.

Transparency

  12.  There are major concerns about when and how decisions are recorded and information is disseminated within the Council and also made available to the public. It is essential that the Executive can demonstrate by this record that decisions have been made on reasonable and lawful grounds and that only relevant considerations were taken into account and irrelevant considerations disregarded. The statutory officers, especially the Monitoring Officer, must have access to all written reports well before decisions are made and published. If it is otherwise they may not be able to discharge their functions properly.

  The paper indicates at paragraph 3.59 that a record of all decisions and the reasons must be recorded and made public (unless containing exempt information). The record may be relatively brief and not indicate the weight given to each reason nor the overriding consideration in the mind of the Executive member. The vital importance of this procedure is reflected in the proposal to make a failure to record or make available a report of a decision a criminal offence by the Monitoring Officer and Executive member respectively. (It is implied that meetings of the Executive, whether as a full Cabinet or in sub groups, would be in private. While this may be the norm, why is this essential?

Mayor

  13.  An elected mayor will have a separate democratic mandate from the Council and serious tensions could arise where the political affiliation of the mayor is different to the majority party on the Council or where the Council is hung. This could arise notwithstanding an elected mayor and his/her Executive must act within Council policies.

  14.  It is not clear how the system would work if a directly elected mayor were to die, resign or be disqualified in mid-term.

Party Groups

  15.  There are a number of issues in relation to the party group system in the new organisational arrangements. For the oversight and monitoring role of the Scrutiny to hold the Executive publicly to account there may well develop tension between the two. This could be distorted by a conflict of interest between party loyalty and pursuing a line of questioning uncomfortable to the Executive but in the public interest.

Executive

  16.  Some Councils are likely to prefer extensive delegations to the Executive subject only to a "call in" mechanism and most Scrutiny conducted in retrospect. Other Councils are likely to prefer an Executive with limited powers and a much greater role for Scrutiny committees in formulation and review of policy. The Association believes that whilst councils will wish to look at this in different ways the latter model is to be preferred and would require the adequate resourcing of scrutiny committees.

  17.  If the intention is to raise the profile of local government with the electorate, it seems to the Association to follow that authorities must be allowed to spend some resources perhaps subject to a prescribed limit on publicity for individual members (particularly the directly elected mayor or leader). This will certainly require changes to the Code of Practice on Publicity.

  18.  It would be helpful if the Secretary of State were to indicate at least in broad terms what other models might be appropriate in addition to the three proposed, and what principles would apply in using his discretionary regulatory powers proposed in the draft Bill to specify other organisational forms. Should this necessarily involve an Executive/Scrutiny split? (eg would a single party advisory committee be acceptable?). It would also be helpful if the Secretary of State were to indicate that the use of substitute members within the Executive, will not be permitted (see paragraph 31 below).

Non-Executive Members

  19.  Non-Executive members who may feel dislocated in the new organisation must have the assurance that their political progress within their party group will not take a backward step by pursing legitimate issues in Scrutiny which the Executive finds unwelcome. Many members will need assistance and training if their representative role in the community is to flourish. There is a risk where tensions develop between the Executive and Scrutiny that the advice from non-executive members to the Executive about the views within their electoral area is impeded or diminished.

Officer Support

  20.  The Association is of the view that in practice most senior staff will work largely to the Executive but do not believe that officers should be dedicated exclusively to the Executive or Scrutiny. It would in practice be difficult to divide staff in this way in smaller councils. It recognises however that the politics of a council where a strong scrutiny emerges may not easily be managed unless such a clear division of officer responsibility takes place. In such circumstances it may prove unrealistic to expect officers to serve the Executive and then to assist the Scrutiny as to how best to pursue their enquiries in challenging the reasonableness of executive decisions made or proposed.

  The role of the chief executive in a strong member executive may vary in scope and influence from one Council to another.

  21.  There are no provisions in the draft Bill for Area Committees. The Association believes that provision should be made to enable the Executive to delegate to Area Committees where in its judgement local needs and circumstances and the interests of community governance warrant such arrangements. This is particularly important in rural counties.

  22.  Education Committees currently have denominational co-opted members with voting powers and co-opted parent governor members of the Committee are proposed. The Association believes that some mechanism is needed to ensure that the contribution such co-opted members make to education issues is not lost to the decision making process.

ETHICAL FRAMEWORK

  23.  The new ethical framework is welcomed in general terms subject to the comments below:

Local Code

  24.  There needs to be scope for local provisions, eg conduct in relation to applicants for planning permission and interested members of the public, access to and the handling of confidential information, conduct in relation to officers both from an Executive and Scrutiny perspective and their attendance at party group Meetings.

  25.  Will local codes extend to cover conduct of members appointed by the Council to external organisations as Directors, Trustees or members of unincorporated organisations? The Association believes that they should.

Standards Committees

Membership

  26.  Bearing in mind the great majority of complaints are likely to arise through the operation of executive decision making is it appropriate for a member of the Executive to be a member of the Standards Committee? There must be no conflict of interest in the Standards Committee. Arguably, at least, the executive member, if there is one, should not have a vote, especially in determining complaints of breaches of the code by the Executive. Collective responsibility would suggest that this should apply whether or not an issue relates to the Executive members' personal portfolio.

Functional Scope in Relation to Members' Code

  27.  A Standards Committee with an independent element, (the clear sign of impartiality and fairness), could undertake to deal with more than insignificant or trivial complaints. What message are we sending to the public that there must be a strong totally independent national body to deal with all complaints about Councillors' conduct? Standards Committees could and should do more. Perhaps the increase in the minimum number of independent members, one of whom could chair the Committee, would bring with it sufficient public confidence. This could be included in regulations. The question really is: "Will public confidence in local government's integrity be enhanced by the creation of an independent body exercising wide powers in relation to all significant breaches of conduct, or would the public develop greater trust in local government if it was seen to be dealing with a significant amount of complaints itself (not all) through a Committee with a strong independent element?"

Categories of Complaint

  28.  The categories of complaints which may be referred to the Standards Committee to deal with are not defined in the draft. Following investigation the Ethical Standards Officer may refer the complaint to the Standards Committee. There is a need for a degree of consistency across the country.

Power to Impose Sanctions

  29.  The draft Bill does not give Standards Committees the power to impose sanctions on members who have transgressed the code. This may be dealt with in Regulations to be made by the Secretary of State. This is a vital issue which needs to be clear either in the Bill or in draft regulations before further comment can be made.

Political Balance

  30.  Will the Standards Committee be subject to political balance requirements? Will the party whip run to the Standards Committee? The Association believes it should not.

Substitute Members

  31.  Is the use of substitute members appropriate for the Standards Committee? The lawfulness of member substitutions at Committee is not clear, although it is widespread practice in local government. There are no statutory provisions nor any case law which at least directly cover this issue. The Association believes that substitute members should be allowed from a pool of members trained to deal with matters within the Committee's remit. If substitutions are not considered advisable for Standards Committees for reasons of continuity and clarity of responsibility then the Bill must make a clear statement. It would also be helpful if at the same time the law could be clarified generally in relation to all the Committees. The Association assumes that substitution will not be possible in the Executive function. (See paragraph 18 above).

 Other Functions

  32.  A Standards Committee should be concerned about the governance of the Council and accordingly, and the following additional functions might be appropriate:

    —  Internal and District Audit regulatory matters;

    —  Ombudsman findings of maladministration;

    —  Internal Regulatory framework eg standing orders, standing orders on contracts, financial regulations, and other codes of practice relating to members' and officers' conduct;

    —  The oversight of the information flow process. (See paragraph 41 below);

    —  Monitoring the effectiveness of the Council's constitution (setting out the rules concerning the relationship between the full council, executive and scrutiny.

Officer and Member Codes of Conduct

  33.  Alleged misconduct by members may also involve officers. In these circumstances the Standards Committee should be able to take a view on whether or not disciplinary proceedings should be instituted against officers and determine the timing of those proceedings vis a vis any investigation by the Standards Board. Bearing in mind the Codes for Members and Officers will have similar basic principles, misconduct by both should be treated consistently.

Monitoring Officer

  34.  The Consultation Document on the draft Bill indicates that there will continue to be legislative requirements about the roles of the head of paid service, the chief financial officer and the monitoring officer. Those three appointments together should represent on the officer side the corporate governance of each Council.

  35.  The Monitoring Officer is envisaged as having a key role in supporting the Standards Committee and generally in providing advice and assistance on ethical standards to members and officers as well as the committee and to maintain the public register of interests. His functions will also implicitly include the investigation of misconduct referred to the Committee by the Board. The draft Bill contains no provisions about the Monitoring Officer but we hope the Bill will reflect the White Paper proposals.

  There are a number of issues relating to the Monitoring Officer:

Protection from Dismissal

  36.  The White Paper indicated that the protection from dismissal provisions should be extended to Monitoring and Chief Financial Officers. This could be done either in the Bill or under s.8 Local Government and Housing Act 1989. Monitoring Officers will inevitably be vulnerable as a result of their investigative responsibilities and as the primary advisor to the Standards Committee. It will be very difficult for the new structures to work effectively if Monitoring Officers do not have this protection. Some assurance should also be available through the Monitoring Officer's links with the Standards Committee and Standards Board. We are however conscious that discriminatory action short of dismissal can be taken against a background of highly charged allegations about senior councillors. This issue needs further attention.

Bar to the Head of Paid Service

  37.  The role of Monitoring Officer should be barred to the Head of Paid Service. The person responsible for managing the political process and the implementation of decisions should not also be the person charged with determining its legality.

Legal Qualification

  38.  The Monitoring Officer should be legally qualified. The Chief Financial Officer has to have an accountancy qualification. There is a general view that a legal qualification is necessary if illegality and unlawfulness are to be fully recognised. There should be a saving for non-legally qualified Monitoring Officers currently in post. Experience and other personal criteria could be the subject of Standards Board guidance.

Current Statutory Duty

  39.  Section 5 Local Government and Housing Act 1989 places an all-embracing duty on Monitoring Officers to investigate and report on each and every actual or likely contravention of statutory provisions, rules of law or statutory codes of practice. His or her responsibilities also extend to the full range of maladministration whether or not injustice has been caused. These statutory provisions require amendment to reflect what is realistically achievable, so that some discretion on matters judged to be minor, perhaps within criteria set by the Standards Board, can be exercised obviating the need for a report to the Full Council. In any event the issue of a report which related to the conduct of a member would be inappropriate if that was being investigated by the Standards Board. It would be better if the reference to maladministration, or required the Monitoring Officer to report such matters only to the Standards or Scrutiny Committee.

Access to Meetings and Reports

  40.  The Monitoring Officer must have guaranteed access to meetings of the Executive, Scrutiny and other committees and written reports. He/she should have direct access to the mayor or elected leader. Where a report is necessary under s.5 no further action should be taken by the Executive until that report has been considered by the full Council.

Information Flow

  41.  The proper and open flow of information between the Executive, the Council and Scrutiny is vital to the successful operation of the New Political Structures. The Standards Committee and the Monitoring Officer could well be responsible for overseeing the fluency of this process. Someone somewhere at armslength from the Executive needs to be holding the ring.

Confidential Information

  42.  If the Monitoring Officer is to be a key point of reference for the Standards Board, who may require information and reports, the position in relation to divulging confidential information needs to be clarified both from a statutory and professional point of view.

National Arrangements

References to Standards Committee

  43.  It is not clear what kind of matters will be referred by an Ethical Standards Officer to a Standards Committee. There is a need for some criteria and some consistency across the Country. What kind of matters fall short of warranting a sanction less than suspension.

Confidential Information

  44.  Notices of failure to comply published by the Adjudication Case Panel should not include information which would seriously prejudice the financial interests of the Council under any contract or proposed contract. Neither should it disclose personal information about third parties without the consent of the subject.

Office Pending Appeal

  45.  Would a member remain suspended or disqualified during the course of an appeal to the High Court? This could be a very important issue for a finely balanced Council and should be clarified in the Bill.

Monitoring Officer and Investigations

  46.  What will be the role of the Monitoring Officer in ESO investigations? Will he/she be expected to assist? Again it would be better if this were clarified in the Bill.

Volume of Complaints

  47.  Will the Standards Board and Adjudication Panel be able at reasonable cost to cope with the volume of complaints or will it become inundated? The explanatory notes indicate some uncertainty over volume but expect it to dwindle over time. The reverse may apply. There is a greater awareness and willingness on the part of the public and members to make complaints. The likelihood is the Standards Board will have a substantial work load and some cases will inevitably be demanding in terms of time. It will be an attractive and inexpensive way to challenge decisions. Will the Standards Board operate a filtering system? Will this vary from area to area?

Cross Reference

  48.  How should the overlap between the functions of the Standards Board, Adjudication Panel, District Audit, Ombudsman and internal disciplinary arrangements best be handled? Will there be an overlap with the proposed criminal offence of misuse of public office? It is possible to imagine some complaints falling within a number of terms of reference. There needs to be a clear and coherent process for determining the "lead" function. This will be further complicated should there be any police involvement.

Speed of Process

  49.  The process will come into disrepute if it takes too long to determine issues of breach of conduct. Speed of process is essential. There needs to be a balance between the interests of efficient public administration and natural justice. Lengthy process is frustrating to the complainant, debilitating to the Council concerned and potentially unfair to the member who is alleged to have transgressed. We know from the annual report of the Local Government Ombudsman for the year 1997-98 that 73 per cent of cases were determined within 20 weeks and 90 per cent within 40 weeks. It is reasonable to compare this timescale to that of the Standards Board. We are adding to this an Adjudication Case Panel hearing and a possible Appeal to the High Court. In complex or keenly contested cases this could mean a delay of eighteen months from receipt of complaint to final determination.

  We know of one case involving complaints against two councillors where the matter is to go to the House of Lords in November, eleven years after the complaint was first raised.

Role of Standards Committee

  50.  If the Adjudication Case panel decides against suspension or disqualification it must refer the matter to the Standards Committee. What is the Standards Committee expected to do?

28 June 1999





 
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