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


Memorandum by the London Borough of Hammersmith and Fulham

  As you may be aware, Hammersmith and Fulham Council introduced a mayoral cabinet and scrutiny system (under current legislation) in June 1998, and councillors here have thus had a year's experience of working within a system close to that envisaged under the draft Bill. Direct evidence of this experience may be of assistance to the Select Committee.

  In case you have not already received a copy via DETR, I enclose this Council's response to the draft Bill as submitted to DETR during the consultation period.


  1.  LBHF fully supports the basic premise of the Bill, that local governance will be improved by a shift to political management models based on a split between executive and scrutiny/representative functions. This is the model adopted by the Council since June 1998, and LBHF believes that it suits a unitary urban authority. Its suitability to district councils in rural areas may be more questionable, and LBHF welcomes the fact that the Bill will allow for the possibility of alternative models should these emerge.

  2.  LBHF agrees the criticisms of "traditional ways that councils work" as set out in the consultation paper. These are in line with the analysis made in the Council's own publication "How should we run the Council?" published in January 1988.


  3.  Engaging the public in a real debate on the merits of alternative models will not be an easy task. At this stage the public are being asked to form judgements on models of government that may seem largely abstract concepts, of which they will have no practical experience. Statutory arrangements for consultation and referenda must take this into account. LBHF supports the principle of "local people to decide", provided such decisions follow a period in which public awareness of the role, responsibilities, and existing structures of local government is significantly raised. Both Government and the LGA will have a crucial role in this process.

  4.  Responses from the public in the Council's own annual residents survey (a structured sample of 1,000 residents) showed 52 per cent support for a directly elected mayor, as opposed to 36 per cent support for an appointed Manager. But the level of real public understanding of these models is still questionable.

  5.  The plans for statutory referenda seem complex and potentially confusing to the public, in that they appear designed to test only a choice between directly elected mayor and the status quo. Either the choice should be left to local authorities, within options that meet the four principles at para 1.21 of the consultation paper, or requirements for statutory referenda should result in all four options being put before the public (ie directly elected mayor, cabinet, council manager, and traditional committee system).


  6.  LBHF fully supports the view that visible and accountable political leadership is essential to re-invigorated local government. It believes that the directly elected mayor model, and the cabinet and leader model, will prove in practice to be much closer to each other than currently portrayed, and that less emphasis should be placed on direct elections for mayors.

  7.  "Strong" city mayors in many countries are frequently indirectly elected, as has been pointed out by Professor John Stewart and others. Councils which move to a leader and cabinet model, or indirectly elected executive mayor and cabinet (as in place at Hammersmith and Fulham) may also choose to move to constitutions in which the position and powers of the cabinet leader are little different from those of a directly elected mayor. The term of office may be determined by the Council as a four-year period, replacing the more traditional annual group election for Leader. Where the political parties choose their Leader in advance of local elections, the public will be clear as to the individual politician they are voting to lead a majority administration, in the same way as for parliamentary elections. The difference between a directly elected and indirectly elected mayor/leader may in these circumstances be viewed by the public as insignificant. Preserving the title "leader" for one of the three new models of strong executives can only cause confusion, and reinforce suspicion in local government that the leader/cabinet model is the poor relation so far as central government is concerned.

  8.  LBHF therefore believes it important the cabinet and leader model, as finally framed in the Bill, should allow for the title "mayor" to be applied to an indirectly elected cabinet leader or executive mayor. This requires minor amendment to legislation applying to London boroughs, which currently requires the mayor to preside at council meetings.

  9.  There has been comment that the title "mayor" should not have been used for new style local government leaders, because of its traditional connotations, and that some alternative and different title should have been found. LBHF believes that the public will swiftly adjust to the idea of mayors as political leaders, particularly in London, and that the advantages of the similar use of the title in local government in Europe and the USA outweigh any short-term drawbacks on its new application in the UK. It is an anachronism, in any event, that the most high profile post in local government should be held by someone who exercises no executive power whatsoever.

  10.  Paragraphs 3.9 and 3.10 propose that certain functions will be retained by the full council, others delegated to quasi-judicial or regulatory committees, and the balance delegated to the executive. The full council is to remain the single legal corporate entity, in the name of which all powers are exercised and to which all powers can be recalled (subject to provisos in clause 13(4) of the draft Bill, which require the consent of the mayor to changes in the constitution and public consultation on change to the executive arrangements). The functions reserved to full council are a mix of existing statutory requirements and some additional categories, such as appointment of all chief officers. It is unclear why the latter function should not be delegated, when many other important decisions will be. It will be wholly impractical to operate an there will be legal problems in defining what constitutes a "departure" from previously agreed strategies and budgets, thereby requiring full council approval (para 3.9). Budget virements, and actions to respond to eventualities unforeseen at the start of any financial year, are part of the daily life of local government. This authority oppose these provisions and urge the government to clarify the position and include provision for further delegation.

  11.  LBHF would support the widespread use of non-voting co-opted members on scrutiny bodies, to lend expertise and to enable local people and partner agencies to contribute to local governance. The Council questions why representatives of churches and parent governors should be the only co-opted members with voting rights (para 3.16) and thereby the only co-opted members potentially able to chair scrutiny bodies? This arrangement blurs the distinction between scrutiny and executive decision-making and appears to be the result of compromise between different government departments.

  12.  Para 3.19 suggests a role for an overview and scrutiny committee which (in the view of LBHF) risks confusing accountability by combining "advice" to the executive prior to decisions, pre-implementation scrutiny of executive proposals, and post-implementation scrutiny. The Council believes these roles should be more clearly separated within new structures. We would prefer that all decisions, save approval of the budget, were delegated to the executive and that all co-optees were non-voting members of scrutiny committees.

  13.  The proposed limitations on the size of an executive cabinet (para 3.36) are perhaps over-simplistic in assuming "one size fits all". A major determinant of cabinet size is the number of portfolios to be covered, and in practice this is likely to vary between unitary authorities and those with a narrower range of services to deliver. For a unitary authority that wishes to include some cross-cutting portfolios as well as service portfolios, a cabinet of seven or eight may well make sense. A fixed limit on cabinet size, defined as a percentage of the total number of councillors, might act as a perverse disincentive to authorities contemplating a reduction in overall council size, (through periodic electoral review) as part of their overall modernisation process.

  14.  The proposed role and functions of a directly elected mayor and council manager (paras 3.54 to 3.58) have yet to prove persuasive to local government at large. Very few authorities are currently proposing these models, and it is taking the blunt instrument of a referendum to force councils to consider the directly elected mayor model. It would be helpful if central government could give more guidance as to the type of local authority (ie urban/rural, unitary, county or district) where these two models and include the cabinet/leader model, are seen as most suitable.

  15.  The proposed arrangements for "resolving differences" (para 3.66) are problematic. For a directly elected mayor to have powers to veto a full council decision calls into question the premise that the full council remains the ultimate corporate legal entity. It suggests instead a directly elected mayor with an autonomous legal capacity to act. As the consultation paper acknowledges (para 3.69) this power cannot in reality be more than a power to delay, and the use of the term "veto mechanism" is potentially misleading to the public. When expressed in the terms of a "power to delay" there is no reason why councils should not apply the same mechanism to Leaders or indirectly elected mayors, as the consultation paper points out.

  16.  On the other hand, a power for the full Council to veto the decisions of a Mayor or Leader would be appropriate. This would represent the final exercise of scrutiny by non-executive Councillors.

  17.  One of the key features of new models is that the decision-making process should be clear and transparent to the public. Transparency and accountability should not be confused with public rights of access to the background to decisions and the reasons why they are made. The proposal that new models should allow for single party cabinets to meet in private (para 3.61) is welcomed by LBH&F as a crucial step forward in re-aligning the realities of political decision-making with formally accountable structures, and in moving away from one of the major flaws of traditional committee structures—the informal and hidden arrangements that are used to support them in most authorities.

  18.  Local government decision-making should be subject to the same basic principles and legal requirements on freedom of information as for central government and other bodies disbursing public funds. The 1985 Access to Information Act had many perverse effects in pushing decision-making into informal channels, and blurring accountability. It is not the implementation of decisions (including the commitment of public funds) which is to be undertaken in private, merely the discussions which lead to decisions being proposed. The system currently used in Hammersmith and Fulham of pre-implementation scrutiny of all executive decisions both by back bench councillors of all parties and the wider public ensures complete openness and gives the lie to claims that political executives are less subject to scrutiny than old style committees.

  19.  The draft Bill and consultation paper suggest that "political" advice to cabinets should be in private, whereas "factual" or professional advice from officers should be subject to public access rights (para 3.6.3). In practice, it is very difficult to draw hard and fast distinctions between what constitutes political, policy, or professional advice on a specific issue. It is important to maintain the principle that local government officers have a right of access and report to scrutiny bodies within local authorities, to give clear advice on professional, legal, financial and technical issues, even where this runs counter to proposals being made by a political executive.

  20.  This can be enshrined within the constitution of new models, or in the mandatory part of a national code of conduct, and is a similar right to that held by accounting officers within the civil service. Provided this right is secured, advice of officers to a cabinet or political executive should remain confidential. No argument is put forward in the consultation paper as to why the position on official advice should be different in local government than in central government. The formula proposed in the consultation paper is likely to damage trust and working relationships between councillors and officers, and there are ample provisions elsewhere in the legislative framework to ensure that councillors do not act unlawfully.

  21.  The draft Bill places the onus on executive councillors to maintain a record of their decisions, and the reasons for their decisions, and to be held accountable in public for these via the scrutiny process. In practical terms this can be achieved through officer support arrangements. A criminal sanction for an administrative failure (para 3.64) seems draconian and unnecessary, unless this is to form part of a wider legal framework on misuse of public office.

  22.  The fundamental change envisaged in the Bill of individual executive decision-making by councillors receives insufficient attention in the consultation paper. It is a major shift in roles and relationships within local government, and imports a quasi-Parliamentary principle of Ministerial accountability. It places individual councillors in a position where their decisions may become subject to challenge and where they will need to account for their actions on record. In terms of transparency, this is a significant advance on traditional committees, with notional collective accountability, and much of the reality of decision-making conducted through party group machinery. But it has legal and practical consequences that need detailed and urgent exploration by DETR and the LGA.

  23.  In the context of these changes, it is difficult to see why the consultation paper (and previous White Paper) takes the line that the traditional accountability of local government officers to the whole council should remain largely unchanged under new models (para 3.82 onwards). Senior local government officers have long had to work around the ambiguity between their positions in law, and the realities of day-to-day political management of councils. Given that the new models import many features of a quasi-Parliamentary framework, adapted to local government, why should not the Whitehall principles of civil service accountability be applied also?

  24.  At present, the principles of subservience to Ministers enshrined in the Civil Service code vary fundamentally from the notional principles in place in local government. With a move to executive councillors, this position is bound to shift in reality, and codes and conventions for officers should be adjusted to reflect this. Safeguards to ensure the continued political neutrality of a professional officer body within local government can be applied in a similar way as for central government.

  25.  The development of an effective (and rewarding) role for councillors involved in the scrutiny/representative function will be critical to the success of all the new models. Failure to achieve this part of the transition is likely to prove the major stumbling block to change in many authorities, and at worse could result in alienation and disaffection of councillors and a reduction (rather than improvement) of the calibre of those prepared to stand for election. Given that the success of new models is ultimately dependent on the calibre of those who work within them, rather than the structures themselves, it is critical that issues of councillor support, training, and development (as discussed at para 3.78 onwards in the consultation paper) are addressed at national level at the start of the change process, rather than at its end.

  26.  A key issue already identified from the first year's experience of the Hammersmith and Fulham model, and raised by other authorities pioneering new models, is the "information vacuum" that can initially arise for backbench and non-executive councillors. New technology can play an important role, and the availability of specific additional Government grant (and transferable expertise) could be of real practical help in achieving the transition to new models. Information systems that provide readily accessible on-line information to councillors can also provide such information to the general public, and would contribute greatly to the wider agenda of Modernising Government.

  27.  Lastly we do not believe that the reform of political management can be looked at in isolation from other aspects of local government reform. To give only a few examples:

    —  the introduction of proportional representation under a leader/cabinet model is likely to undermine the stated desire for strong consistent political leadership, although we believe that the introduction of annual elections would do so to an even greater extent;

    —  the size of councils the range of responsibilities they have, and the quality of councillors will continue to have a over-riding impact on the ability of those authorities to modernise and perform under new management models;

    —  the power and influence exercised by party groups, on both executive and individual committees, must be taken account of in any legislation.


  28.  LBHF welcomes the overall objectives of this part of the draft Bill, in seeking to raise already relatively high levels of public trust in local government. The detailed and extensive arrangements proposed in the Bill for national monitoring of standards, and the investigation of allegations of misconduct, may in practice prove to be a set of safeguards that are called upon in relatively few local authority areas. But they do carry risks of potential abuse by individual minded simply to disrupt the workings of individual councils, for party political or other unjustifiable reasons.

  29.  The same might be said for existing arrangements for the Local Government Ombudsman, whose investigations of complaints are inevitably often protracted and expensive. The experience of LBHF with Ombudsman cases is probably similar to that of many authorities, with a level of investigations that is relatively static at approaching 100 a year, of which no more than one or two are upheld each year as cases of maladministration.

  30.  If the ratio of complaints made, cases investigated, and complaints upheld were to prove the same in relation to a Standards Board, a great deal of investigative work would be undertaken to address what may prove to be very low levels of improper or unethical conduct.

  31.  LBHF considers that the answer to the need for visible public safeguards must lie in a system of local standards committees that are seen to be truly independent of councils, and effective in investigating complaints made to them. The Council would favour an approach, already being taken by some authorities, of local standards committees made up entirely of people outside the council to which they applied. They might well include serving councillors from neighbouring councils, who would bring to bear the necessary experience but who would be independent of the immediate political scene. The model proposed in the draft Bill, and particularly the provision that allows for the inclusion of one executive councillor, seems likely to create inbuilt conflicts of interest.

  32.  At the least, LBHF would welcome a formula, which did not inhibit the setting up of joint Standards Committees between several authorities, as a means of pooling expertise and saving on costs. This ideas has been raised among those London Boroughs which form the West London Alliance. The Bill as drafted would seem to prescribe that every local authority must establish its own committee, although it is not clear whether normal provisions for joint committees would apply to this function as for other functions.

  33.  It would be desirable if such local Standards Committees, constituted of independent members, could carry out as much as possible of the initial task of sifting complaints and allegations prior to full investigation by an Ethical Standards Officer. Were this sifting process to be carried by a committee made up primarily of councillors from the council involved, it would be unlikely to command sufficient public trust in this role. Hence the preference for fully independent committees. Consideration should be given to providing legal advice or representation to councillors who have to appear before Standards Committees with the power to censure them or affect their office.

  34.  The local government ombudsman, who already deals inter alia with complaints on ethical conduct, has increasingly adopted the principle that complaints and allegations must be processed through a local authority's internal procedures, or a filtering mechanism, before an ombudsman investigation. The purported approach in the Bill does not provide a local filtering mechanism.

  35.  In the Council's limited experience of setting up formal enquiries to investigate possible misconduct or malpractice by councillors, the principles of natural justice, coupled with the adversarial traditions of cross examination within the UK legal system, inevitably lead to requirements for legal representation and resultant very high costs for the parties involved. It is not clear from the Bill or consultation paper what investigative processes the Standards Board would follow, although it would appear to have wide-ranging powers to collect evidence and summon witnesses. From the content of the Bill, it is not clear what powers a local Standards Committee would exercise.

  36.  Given that the sanction of suspension from office is a serious one, with major repercussions for the individual involved (and possibly huge political repercussions within finely balanced councils), investigation of complaints will need to be thorough and may last many months. Unless costs are to escalate, there will need to be some alternative mechanisms for complaint resolution at an early stage, or alternatively clear criteria as to the level of complaint, which warrants Standards Board investigation.

June 1999

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