APPENDICES TO THE MINUTES OF EVIDENCE
TAKEN BEFORE THE JOINT COMMITTEE ON THE DRAFT
LOCAL GOVERNMENT (ORGANISATION AND STANDARDS) BILL
Memorandum by the Association of Council
Secretaries and Solicitors
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
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
(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:
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
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.
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?
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
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.
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
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).
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.
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
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.
23. The new ethical framework is welcomed
in general terms subject to the comments below:
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.
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
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
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.
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.
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
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
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'
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
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
There are a number of issues relating to the
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.
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.
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.
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.
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.
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?
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
28 June 1999