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


APPENDIX 28

Memorandum by the London Borough of Lewisham

  Attached is a report agreed at Lewisham Council's Policy and Resources Committee in May this year. It has already been sent to the DETR as a response to the consultation, but we would like it to be included as evidence to the Joint Committee as well.

  Lewisham Council has responded positively to modernising local government and local democracy. The Council has already carried out extensive consultation on the best way to govern Lewisham. It has decided to take forward the model of a directly elected mayor as soon as it becomes possible to do so. This was agreed at a full Council meeting in January with only one vote against.

  I understand that members of the Lewisham Citizens Panel who were involved in our discussions on the best way to govern Lewisham are giving evidence to your Select Committee this week. The Citizens Panel deliberations fed into our own select committee of councillors last year. I believe copies of the resulting report—governing Lewisham—are being made available to members of your committee, but I attach a copy for ease of reference.

  Prior to legislation, we are moving as far as possible towards a directly elected mayor model, and have abolished committees, set up an executive including an executive mayor, and assembly arrangements with six select/scrutiny committees.

  The Council does not however, believe that new structures hold all the answers to achieving greater democratic engagement. It is the Council's policy to lobby the Government for a more proportional system of election at local level to accompany any constitutional change in Lewisham. And in addition the Council is committed to innovative ways to consult and involve local people and stakeholders in decision-making. We have taken great care to ensure maximum transparency in our new arrangements, including holding meetings of the new executive in public.

 1.  PURPOSE OF THE REPORT

  To bring to the attention of the Committee the contents of the Local Government (Organisations and Standards) Bill, (the draft Bill), and to enable the Council to submit comments to the Government and to the Local Government Association in accordance with the consultation timetable.

2.  POLICY CONTEXT

  The Council is committed to the modernisation of its political governance arrangements. A Select Committee report considered by the Council in January this year agreed to hold a referendum as soon as possible on whether to proceed to an elected mayor for Lewisham. It also agreed to move so far as possible within existing law to a modernised style of political governance with effect from May 1999.

3.  RECOMMENDATIONS

  To note the contents of the consultation paper "Local Leadership—Local Choice" and in particular the contents of the Bill; and to authorise the Chief Executive to make representations to the Government and to the Local Government Association in accordance with the contents of this report.

4.  BACKGROUND

  4.1  In July 1998, the Government published a White Paper "Modern Local Government—In Touch with the People" which sets out its intention to modernise the political management of, and to introduce a new ethical framework for, local government.

  4.2  In March 1999, the government issued a draft Bill under cover of the document "Local Leadership—Local Choice", which largely reflects the proposals set out in the earlier White Paper in so far as they related to political governance and ethics. It is clear that the changes will represent a fundamental change to the way local government goes about its business.

5.  THE MAIN PROVISIONS OF THE DRAFT BILL

  5.1  The draft Bill is in two parts, the first dealing with governance and the second with ethics.

PART 1—GOVERNANCE

5.2 The Local Authority Executive

  The draft Bill provides that in future decisions of the Council may be delegated to "local authority executives" which must consist of:

    —  a directly elected mayor and at least two other elected members appointed by the mayor (elected mayor model): or

    —  an executive leader and at least two other members of the Council appointed either by the mayor or the authority (executive leader model): or

    —  an elected mayor and a council manager appointed by the authority (council manager model).

  The Secretary of State may add to these three models by regulation.

5.3  Constitution of the executive

  5.3.1  The draft Bill provides that the Chairman and Vice-Chairman of the Council may not be members of the local authority executive (presumably to maintain an element of impartiality in the conduct of Council meetings).

  5.3.2  The number on the Executive may not be more than 10 or 15 per cent of the total membership of the Council, whichever is the smaller. Calculation of the 15 per cent does not include the mayor (though the mayor does appear to be included in the figure of 10). Subject to these limits, the Mayor decides on the number in the cabinet and appoints an executive member as his deputy.

  5.3.3  Local authority executives are not required to comply with the political balance provisions of the Local Government and Housing Act 1989 and therefore may be single party. (Clause 9) The executive will be able to appoint committees which need not be politically balanced.

5.4  Executive functions

  5.4.1  The draft Bill provides for the Secretary of State to have power to set out in regulation those functions which must be performed by the executive, and those which may and may not be performed by it (Clause 3). Though the Bill does not state which functions will fall into which category, the narrative which accompanies it suggests that planning (probably development and control) and licensing functions will be prohibited to the Executive when the regulations are made.

5.5  Delegations by Executive

  It is proposed that delegations should be as follows in each of the three models:

    —  Directly elected mayor—the mayor may discharge functions alone, or delegate to the executive, a single member of it, a committee of the executive or an officer.

    —  Executive leader model—delegations could be to the Leader or could be discharged as the Council sees fit and sets out in its executive arrangements.

    —  Council manager model—executive functions may be performed either by the executive (ie, the mayor and Council manager together) the Council manger or a nominated officer.

5.6  Overview and scrutiny (Clause 7)

  The Council must have at least one overview and scrutiny committee to scrutinise the exercise of executive functions, and to make reports and recommendations to the authority or its executive on the discharge of executive and connected functions. Neither the Chairman, nor the Vice-Chairman, nor any member of the Executive may sit on an overview and scrutiny committee. The overview and scrutiny committees may compel attendance by executive members and officers. If so compelled, officers and members are under a statutory duty to attend. The Secretary of State retains power to make regulations about the operation of overview and scrutiny committees.

5.7.   Consultation with local community

  5.7.1  The draft Bill proposes a new statutory duty for local authorities to consult with electors on their proposed executive structures, and to send a copy of the proposals to the Secretary State. If the authority proposes an elected mayor then it must first hold a referendum and the results will be binding. If the result is negative then the Council may prepare alternative proposals and consult, but only one referendum may be held every five years.

  5.7.2  By clause 14 of the draft Bill, the Secretary of State may make regulations requiring an authority to hold a referendum on whether there should be an elected mayor if the authority receives a petition signed by 5 per cent of local electors. The Secretary of State retains power to change the 5 per cent to another figure, and to make regulations to allow himself to require a local authority to hold a referendum.

5.8  Adoption of executive arrangements

  Executive arrangements and amendments to them once in force, may only be adopted by full resolution of the Council. Once adopted the Council must operate the arrangements unless they are amended in accordance with procedures referred to in the draft Bill.

5.9  Provisions relating to the mayor

  The proposed term of office is four years. Mayors will be elected by the supplementary vote system.

5.10  Powers of the Secretary of State

  The Bill has numerous references to the powers of the Secretary of State to make regulations. These include, for example, regulations relating to the conduct of mayoral elections; as well as the question put at, publicity relating to, and the conduct of referenda. The Secretary of State may also issue guidance on the Council's proposals for executive arrangements, implementation timetables, the availability of public information and the operation of overview and scrutiny committees. The Council must have regard to such guidance.

PART II—ETHICAL FRAMEWORK

5.11  Members Code of Conduct

  5.11.1  The Secretary of State may specify the principles governing the conduct of local councillors. With the assistance of the local authority associations, the Secretary of State may issue a model code of conduct, which must be consistent with the principles, and may include both mandatory and optional elements.

  5.11.2  Once the model code has been issued, Councils must adopt a Members code of conduct [within six months] (or review their existing code) to comply with the model. It must incorporate the mandatory elements and may include the optional and other elements.

  5.11.3  Members must undertake to observe the code within two months of its adoption or lose office.

  5.11.4  The Council must publish the code of conduct and adopt it by formal resolution.

5.12  The Standards Committee

  5.12.1  Every Council will have to establish a Standards Committee to promote and maintain high standards of conduct and to assist members in the observance of the code. It will advise on the adoption and revision of the code, monitor its operation and arrange training for members on it. It will consider lesser allegations of breach of the code referred back to it by the independent Standards Board (see later).

  5.12.2  A Standards Committee must include at least two elected members of the Council, and at least one non-member. It may not include more than one executive member. The Mayor or Executive Leader may not sit on the Standards Committee. Apart from these limitations the constitution of the Standards committee and its term of office is for the Council to decide. Non-Councillors who sit on the Standards committee may vote.

  5.12.3  The Secretary of State retains regulatory powers and the Standards Board may issue guidance.

5.13  The Standards Board

  5.13.1  The Standards Board will be an independent body appointed by the Secretary of State to deal with disciplining elected (or former elected) members. It will consist of Ethical Standards Officers and ordinary members.

  5.13.2  Ethical Standards Officers (ESOs) will investigate allegations of breach of the code. Only allegations in writing will be considered.

  5.13.3  The ESO may:

    —  Find that there is no evidence of breach.

    —  Find that no action is necessary.

    —  Refer the matter back to the Standards Committee.

    —  Refer the matter to an Adjudication Panel.

  5.13.4  ESOs will have the same powers as the High Court in relation to the attendance and examination of witnesses, and the requisitioning of documents. Anyone who fails to comply with the requirements of an ESO investigation commits a criminal offence subject to a daily penalty of £20 until compliance.

  5.13.5  There are to be natural justice safeguards relating to an ESO enquiry, including the right to representation.

  5.13.6  The ESO has power to produce an interim report and conclude that suspension of the member from office is appropriate. The ESO may then require an authority's standards committee to suspend the member for up to six months while the investigation is ongoing. An ESO may issue several such notices. Appeal against suspension lies to the High Court.

  5.13.7  The draft Bill provides for Adjudication Panels to be set up. They will conduct adjudication by Case Panels of at least three members. The Panel may suspend the member from membership of the authority, its committees or subcommittees, or disqualify the member for up to five years. If suspension or disqualification is not deemed appropriate, the Panel will inform the Standards Committee, specifying the nature of the breach. Appeal lies to the High Court.

5.14  Employee Code of Conduct

  The Secretary of State is to issue a code of conduct for employees, following consultation, and the code will be incorporated into the terms and conditions of employment of employees.

6.  ANALYSIS AND COMMENTPART 1-EXECUTIVE ARRANGEMENTS

6.1  A fundamental change

  The draft bill represents a fundamental change in the way in which local government goes about its business. Much of what is contained in the draft Bill, particularly in relation to the political management of the authority was trailed in the July consultation paper. The draft Bill by giving expression to the modernisation agenda, is to be welcomed as an opportunity to overhaul local governance and making it more relevant to local people. New structures should enable local people to know who is responsible for making the decisions which affect their everyday lives.

6.2  Enabling legislation

  Though the draft Bill sets out three models for local governance, and the ethical framework, a great deal of the detail of the legislation remains to be fleshed out by regulation. Without that regulation, the law will be unworkable. There is little in the Bill about the relationship between the constituent parts of the authority, (the executive and the overview and scrutiny committees, and the Council itself) or their respective roles. Though the narrative which accompanies the bill does set out what the Government's view is about these functions and relationships, it is not given in the draft Bill in any detail.

6.3  Openness

  There is nothing in the draft Bill which would require the overview and scrutiny committees nor the Executive to hold its meetings in public, subject to the existing safeguards contained in prevailing access to information provisions. Lewisham's position has been to endorse that all meetings should be held in public subject to these safeguards and would urge an amendment to the draft Bill to this effect, or that regulations be put in place as soon as possible to achieve the same purpose. It is only by such openness that local accountability and transparency can be enhanced.

6.4  Record of decisions

  Though there is reference in the narrative accompanying the draft Bill to the requirement that records be kept of decisions taken, there is no such reference in the draft bill. The draft Bill proposes that individual Executive members might have decision making powers delegated to them. A requirement for decisions tobe taken on a full consideration of all relevant information, and for a record of the decision and the basis on which it is made be kept, is therefore essential, as would be current practice now. Without such practice it is exceedingly difficult for the council to defend its decisions (eg a school closure) to those affected by it, the public at large, its Auditor, or in the most extreme cases to a Court in the event of challenge.

6.5  Officer advice

  The Council has always taken the view that officer advice should be open, impartial and objective. This is a line which is endorsed in the Council's Select Committee report on the political management of Lewisham. The draft Bill however does not embody such a proposal, but rather remains silent. Given the separation of executive and scrutiny functions which the Bill will bring about, and especially with single party closed meetings of the Executive becoming a legal possibility, the need for such advice becomes ever more pressing. The Council therefore is recommended to ask the Government to amend the draft Bill accordingly, or to ensure that regulations are introduced to this effect. Such a provision would be entirely consistent with the intention to promote the highest standards of ethics in local government.

6.6  Powers of overview and scrutiny committees

  These are tied to the Council's functions. Where the Council with Government encouragement is seeking to work across the public sector in partnership with others, a more widely drawn power which is not limited to Council functions, but perhaps related to matters of interest to local inhabitants might be more facilitative.

6.7  Numbers on the Executive

  These are tightly defined by the draft Bill. In Lewisham the maximum number on the Executive will be eight. This is less than our interim arrangements propose. It would be possible for the draft Bill to be amended to give to local authorities a greater degree of discretion in this area, and there appears to be little justification for centrally determined limits. Instead local authorities should be able to choose in accordance with local circumstances.

PART II-THE ETHICAL FRAMEWORK

6.8  Nolan

  Broadly the provisions follow the line taken in the White Paper in July. In particular, the principles which the Secretary of State is likely to specify for inclusion in codes of conduct are likely to be consistent with the principles set out by Nolan III and as such are to be welcomed.

6.9  Constitution of the Standards Committee

  The draft Bill lays down minimum requirements for the membership of Standards Committees. (see para 5.12.2 above). However by being so prescriptive, the Government precludes some constitutions which have worked well elsewhere. For example, if the Bill is enacted as currently proposed, it would not be possible to establish a Standards Committee made up entirely of non-members. Some may take the view that such a constitution would be likely to bring a high degree of impartiality to the work of a Standards committee and may inspire confidence in the Standards Board that matters referred back to it might be dealt with objectively and fairly.

6.10  Potential bureaucracy and expense

  Perhaps the most significant drawback of the proposals is that the workings of the Standard Board, its ESOs and Adjudication Panels are likely to be very slow, cumbersome and unnecessarily expensive. With rights of representation and appeal to the High Court, it is possible, not to say likely, that if cases are investigated in this arena then they will not be brought to a conclusion swiftly. Cases going on appeal may drag on for months, perhaps years. A lower key but equally effective way of dealing with allegations of breach of code might be to allow local authorities to establish external Standards Committees, which could deal with all but the most serious cases which the Regional Standards Board might keep to itself.

6.11  The role of the statutory officers

  The Act does not say what will be the relationship between the Standards Board and the Monitoring Officer/Director of Finance (or District Auditor). Clearly there will be occasions when (for example) the Monitoring Officer will need to be involved to satisfy himself that he has fulfilled his own personal legal responsibilities under the Local Government and Housing Act 1989. These issues need to be revisited and the matter clarified as soon as possible.

7.  IMPLICATIONS FOR THE COUNCIL

  7.1  There is much in the draft Bill to be welcomed. It will give legal expression to a route to modernisation which the Council is strongly committed to. However, much of the detail will depend on the detail of regulation, which is yet to be made.

  7.2  Lewisham has seized the initiative with interim arrangements which are consistent with the law now, but whether they will need amendment under the new law depends on the final drafting of the Bill. For instance, if it remains as drafted then it is clear that the membership of the Executive will need to be changed, and it will not be possible for a person who sits on the Executive to be the Chairman of the Council.

  7.3  There may need to be further changes in the light of any regulations made by the Secretary of State. Further developments will be reported to the Council at the earliest opportunity.

8.  OFFICER RECOMMENDATION

  The committee is asked to consider the contents of the report and to decide on the representations to be made in the Government's consultation process which closes on 21 May 1999.

9.  FINANCIAL IMPLICATIONS

  There are non arising directly from this report.

10.  LEGAL IMPLICATIONS

  These are contained in the body of the report.

11.  EQUALITIES IMPLICATIONS

  There are no specific implications.

12.  CRIME AND DISORDER IMPLICATIONS

  There are no specific implications.

30 June 1999





 
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