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


APPENDIX 46

Memorandum by SOLACE (Wales)

PREFACE

  The governance of Wales is undergoing a sea change. Local Government generally, and Solace Wales, see themselves as part of that transformation.

  The underlying forces which make it both essential and right to modernise the governance of Wales are very powerful. The Government has recognised those forces, and is seeking to shape and apply them to make government and the public sector more effective, whilst remaining true to the values of public service. It has initiated its own wave of change—indeed, it has initiated successive waves of change both for local government generally and for many of the key policy areas in which Local Government has a part to play.

  In setting out to respond to those initiatives, and in particular to the White Paper "A Stronger Voice for Local People" ("Local Leadership, Local Choice" in England), Solace (Wales) aims to "Catch the Wave" and even, perhaps, in part to lead it. As the professional body representing Chief Executives and senior managers in Local Government in Wales, we see our role as playing a positive part in Modernisation, just as we strive to lead our organisations managerially in contributing to that process also. We believe that Welsh Local Government for all its problems and for all the setbacks which it will no doubt encounter, has a vital role to play in taking forward the governance of Wales into the new millennium. We even believe that whilst we have much to learn from Local Government in other parts of the United Kingdom and, indeed, internationally, we also have much to contribute to the wider debate and process. It is widely acknowledged that the National Assembly is probably the devolution model which is closest to possible future experience in the English regions, and what we learn in Wales can be of benefit there in addition to the mutual learning which we hope to develop with Celtic colleagues. These are exciting times, and we aim to play a full part within them.

  Our key messages can perhaps be summarised thus:

    —  We welcome the Modernisation process and the proposals in the White Paper.

    —  We think that Wales has something special and extra to offer the process, and to maximise that potential the National Assembly needs to have maximum discretion in applying the legislative framework to local circumstances.

    —  The Government should keep strongly in view the overall, holistic, Modernisation process, and it should forge the links between the parts of the Modernisation process more strongly, and it should bring forward those parts of its prospectus which seem to be lagging at the moment, and in particular community planning and a duty of "wellbeing" for Local Authorities in order to underline their fundamental constitutional purpose.

    —  Future legislation to give effect to the Modernisation agenda for Local Government should enshrine principles but leave open the detail, and should leave room for variation and experimentation.

    —  Proposals to develop and implement political executives should pay much more attention to Member/Officer relationships, and in particular the role of senior managers in developing complementary and supporting roles to the powerful responsibilities of community leadership, strategy, and policy development which the Modernisation agenda has fashioned for elected Members.

  The views in this Paper have both drawn on and contributed to the response by Solace (UK) to the English White Paper. In addition, Solace (Wales) would welcome debate and feedback on the ideas and suggestions set out in the document. Views can be communicated to myself, or to Viv Sugar (Chair) or Huw Vaughan-Thomas (Vice Chair).

INTRODUCTION AND CONTEXT

  1.  Solace (Wales) welcomes both the Government's Modernisation Agenda for Local Government and this opportunity to respond to the White Paper "A Stronger Voice for Local People" which deals with proposed draft legislation relating to the organisation and decision making of Local Government, and the Ethical Framework within which Councillors and Officers perform their duties. We fully agree with the White Paper that there is a need to bring about "fundamental cultural change" in Local Government, and that getting right the way in which Councils are run and local communities are governed is essential in order that Local Government can succeed in serving and leading their communities. This much, then, is common ground, and it is very important common ground. The White Paper will make a significant difference to the roles of both Councillors and Officers, and such change can be uncomfortable. We consider that the risks and the discomfort are worth the potential benefits, but we would also suggest that the Government both add to its proposals in certain respects and amend them in certain respects in order that the potential benefits in good governance and better services are enhanced and the risks minimised.

  2.  It is important to bear in mind the purposes and the context of the Modernisation of Local Government. In part, the need for modernisation derives from the fact that some of the ways in which Councils work owe more to the 19th and 20th century, let alone the 21st—some aspects of the Committee system, for example. And although Local Government has made great efforts, in applying modern methods of management and organisation, it still has a considerable way to go in that respect also.

  3.  It is also important to consider the underlying forces which are driving these changes, and the need for them. The technological transformations of the late 20th century have had fundamental effects on business organisation and communication. Although those forces have been felt first and most in the private sector, through the globalisation of markets and commodities, they are increasingly transmitting themselves into state and civic society quickly and powerfully. Nonetheless, it is possible, and perhaps likely, that gaps can open up between the private and the public sector in these respects because the drivers of markets and technology are more immediate in the private sector.

  4.  In certain respects, the policies applied to Local Government in the 1980's reflected a particular way of trying to close such gaps—a mixture of enforced privatisation, a reduction in discretion, and an attempt to limit Local Government to an instrument of local administration. That approach could only ever, at best, deal with part of the problem. The way forward has to be not to bludgeon and restrict Local Government to ape the private sector, but to realise its own strengths and possibilities by using the methodologies and the opportunities which modern technology and modern business organisation can offer in supporting reinvigorated local democracy and community leadership.

 THE WELSH PERSPECTIVE AND THE NATIONAL ASSEMBLY

  5.  Local Government in Wales has certain legacies when it comes to modernisation, but also some tremendous strengths and possibilities. The reorganisation in 1996 created a sea change in terms of the organisation of Local Government in Wales which many have taken advantage of in beginning or continuing a process of modernisation. Reorganisation was an opportunity to rethink ways of working and to try and develop Local Authorities which were more "fit for purpose". The simplicity and clarity of Local Government structures, with the 22 Unitary Authorities, has also been very important in creating a framework for clearer and more effective partnerships with other public services, and notably the Police and Health. The coterminous boundaries which are now in place, coupled with the reinforcement of Local Authority areas as a unit of planning in matters both of community safety and of health commissioning, has built a very good basis for joint working.

  6.  Those changes and developments also help to pave the way for very close working with the National Assembly, and it is significant that clear and coterminous boundaries have been established for the National Assembly regions and their relationship with Local Government, particularly in the field of economic development and of training.

  7.  The creation of the Assembly has also, of course, added to the sense of new beginnings and new thinking in Welsh governance. The creation of the Partnership Council between the National Assembly and Local Government, and the Scheme of Local Government, also provide specific machinery, opportunities, and drivers for developing relationships and for continuing the modernisation process.

  8.  The role of the National Assembly in taking forward the draft Bill when it is enacted is clearly of the utmost importance, as is the role of the Partnership Council. The provisions in the draft Bill (see Clause 45) that underpin discretion for the National Assembly are therefore very important. In some respects, the matters which are set out in the legislation are very detailed and prescriptive, and go not only to the question of the initial models which are available but also to some of the detail which would have to apply to any model—see, for example, the points made about the position of Executive Members set out below. On the other hand, certain matters which are very important to do with the roles of Members and Officers are almost entirely absent from the draft legislation and not at all adequately addressed in the White Paper—see on this, the points made below about Member/Officer relationships. We believe that the legislation should be clear about key principles which should underpin all models in terms of reinforcing the fundamental thrust of the Modernisation Agenda towards a role for Councillors which is more strategic and more focused on community leadership and governance. However, we also believe that over prescriptive detail is unhelpful and unnecessary, and that there should be more scope for local choice and experimentation.

  9.  The role of the Executive and the back bench Councillors, and the relationships between them, is a matter of particular concern. The draft legislation envisages a very fierce separation between the Executive and the non-Executive role such that Executive Members will not be permitted to be Members of Committees which have responsibilities for scrutiny—although when it comes to certain quasi-judicial matters, such as planning, no such prohibition applies. What is most striking is that the model of the National Assembly itself, which Parliament has approved, provides for Executive Members who are also Members of subject committees which have scrutiny and policy development functions. It seems to us entirely illogical to permit such an arrangement at an all Wales level but to exclude it for Local Authorities in Wales.

  10.  There is a body of opinion in Wales which believes that it would not be appropriate to permit Executive Members to serve on scrutiny/subject committees in the interest of stronger and clearer accountability for executive decision making, and to avoid "conflicts of interest" of a policy character. However, we all share the view that this is a matter on which the National Assembly certainly ought to be able to take a view, and that it is inappropriate to preclude by primary legislation the participation of Executive Members on subject/scrutiny committees.

  11.  This is especially so when for what will be fairly obvious reasons a number of Authorities are explicitly looking to the National Assembly as a basis on which to model their own arrangements for political executives at local level. This is by no means the only model which will or should be adopted by Local Authorities in Wales, but it ought to be one possible model. Apart from anything else, it will provide opportunities for mutual learning and sharing of experience, and an economy of effort in relation to the development of administrative decisions and standing orders—a Local Authority modelled on the National Assembly would not automatically adopt their associated administrative and standing order arrangements, but it would certainly be useful to be able to look to them as a starting point.

  12.  It also seems to us that in relation to the possibility of establishing area committees there may need to be on occasion to be some mixing of executive and non-executive functions. This too points in the direction of avoiding over prescription. All models should provide for a clear political executive, and for effective scrutiny arrangements. These are the issues of principle which ought to be enshrined through the primary legislation or through statutory guidance which has the force of secondary legislation. It ought to be possible to work out particular possibilities beyond that.

  13.  It is especially important that the National Assembly is able to explore to the full the models and possibilities which may be appropriate in Wales, both having regard to the particular circumstances and possibilities of Local Government in Wales, and the effect which the National Assembly itself has on the situation.

  14.  Once legislation is in place, and perhaps even before that, there is likely to be a very determined and energetic push to give effect to political executives. Many authorities are likely to introduce transitional arrangements over the next year or so, and will be anxious to move on to take advantage of the new legislative framework which can be anticipated some time in the year 2000. However, the very fundamental character of change which is implied, and the need to learn from and build upon the experience of the next year or so in the transitional arrangements which are being put in place, suggests that there will need to be thorough preparation by Local Government in Wales and by the National Assembly to ensure that we modernise in a way which is both effective and sustainable. One possibility is that the National Assembly might establish a working group or commission along the lines of the National Assembly Advisory Group to advise on both the models which might be applicable to Local Government in Wales, and to give guidance on how those models should be implemented. The NAAG approach resulted in a thorough and effective specification for the new National Assembly, and it was able to absorb and include a wide range of views, and to create confidence in its conclusions, partly because it was so thorough and inclusive. A similar approach may well be beneficial in the context of implementation of the Local Government Modernisation Agenda.

ORGANISATION AND STANDARDS

  15.  The legacies of Local Government in Wales have been worrying and, in measure, continuing, and they relate both to questions of culture and to questions of ethics. Our assessment is that both have changed significantly, and are continuing to change positively. One of the most important issues for Local Government in Wales in the light of the modernisation agenda is whether there are any aspects of what the Government intends which might have the effect of reinforcing some of the negative aspects of Local Government culture of inhibiting the change process, rather than supporting and accelerating it.

  16.  This is particularly important in relation to decision making and to Best Value considerations, and the way in which the proposals on the organisation of Local Government will influence them. Some Officers and some Members have been prone to permit their roles to become blurred and overlapping to a degree which has been unhelpful. Where such tendencies persist, they inhibit the move towards Best Value, and they will inhibit also the shift in the role of Councillors towards a strategic approach based firmly in the principles of community leadership and community planning.

  17.  It is clear that the new arrangements will be very demanding, both in terms of the amount of work required, and in terms of the potential strains and ambiguities in the roles which Members and Officers need to perform. Whilst the White Paper makes it clear that Officers have a responsibility to service both the executive and the non-executive Members, in practice there is likely to be strain and tension across this boundary. Similarly, it is likely that there will need to be very specific and intensive and medium term support for both Members and Officers in developing the new skills needed to meet the demands of the new ways of working. There is clearly a potential for duplication and/or for conflict in the arrangements that may be introduced.

  18.  The White Paper clearly gives precedence to the elected Mayor model, whilst most Authorities in Wales have indicated their preference for some kind of Cabinet System. In large measure, this preference reflects the fact that although Welsh Local Government is fully aware of the limitations and inadequacies of the Committee system, there is a feeling that there are strengths in the Committee system too, and that these strengths can be built upon. For this reason, the precedence given to the elected Mayor model is not appropriate, and the fact that opinion polls indicate a preference on the part of the public for elected Mayors needs to be treated with caution. After all, there is no practical example against which the public are currently able to assess that opinion. Clearly, elected Mayor arrangements can work within Local Government—the experience of other countries shows that this is the case. However, the need for transition and continuity to such a radically different model of Local Government decision making suggests that a more measured approach is necessary. Otherwise, there is a risk that the elected Mayor model will significantly and rapidly advance local political accountability but, in the meantime, lead to a significant weakening of managerial competence and effectiveness.

  19.  We have placed our response to the draft Bill on organisation and conduct in this wider context because we think it is crucial that the Government maintains a holistic and integrated approach to modernisation. There is a real danger that the separation of the agenda into different Bills and legislative periods will lead to a fragmentation of the agenda, and a failure to ensure that it is properly interconnected, and properly reinforcing. In particular, we think it vital that the new structures of decision making and the new functions envisaged for Councillors in the draft Bill are put within the framework of a constitutional purpose for Local Government of community leadership and planning. This could best be achieved by the simultaneous enactment of a duty and power to promote the social, economic, and environmental well being of a local authority's area.

  20.  Similarly, we are strongly of the view that the Government needs to legislate at an early date to enable Local Authorities to participate in a wider range of partnerships, including partnerships of an executive character. The character or problems facing Local Authorities and their communities are such that it is now widely recognised that multi-agency working, and partnerships arrangements are critical to success. In effect, what is being called for is "corporate" community working. Yet the legal powers of Local Authorities are such that such partnerships are inhibited, if not thwarted, by the restrictions which flow from statute and from case law. These restrictions are so significant that where government has addressed directly some of these policy areas, such as community safety and health, it either has or intends to legislate in such a way that will enhance the partnership capacity of Local Government. In our view, such partnerships now figure so strongly in so many areas of policy which Local Authorities are being asked to address that more general and more generous partnership powers are called for.

  21.  Solace (Wales) broadly welcomes the proposals on ethics, and the increased emphasis that will be given to standards of conduct on the part of both Members and Officers, as a result. However, there is concern about the statutory roles of certain Officers, the Monitoring and the Chief Financial Officer, in particular. One particular concern is the extent to which they will be able to work closely with the executive while being required to take an "arm's length" and an objective view of the authority's (and the executive's) activities. This might be contrary to the views, and perhaps the interests, of the executive Members. This concern is allied to the expectation that these Officers will be required to provide support to the scrutiny function, and to the ethics and standards committee, and these two may experience a degree of tension with the views of the executive, notwithstanding that such tension may well be in the overall interests of the Authority itself. These matters require great care, especially in the context of the way in which the ethical framework for Local Government is developing, and the ways in which "checks and balances" need to be accomplished in order to ensure openness and accessibility so that decisions can be challenged effectively and that public confidence in the quality of Local Government decision making will not be diminished in any way. Here again, many of the problems and tensions will arise across the Member/Officer boundary. It is clear that the Member/Officer boundary will change as a result of the Modernisation programme, and also that the ethical framework will change. With both of these changing at the same time, particular care needs to be given to ensure that the tensions and the contradictions are managed and are minimised.

MEMBER/OFFICER PARTNERSHIP

  22.  It is a matter for disappointment that there is not, within the White Paper, greater clarity about the basis of Member/Officer partnership on which the Modernisation Agenda ought to be taken forward. The relationship between Members and Officers ought to be a Partnership, pulling together, rather than a see-saw or a tug-of-war as to "who is driving the bus". It is also clear that the Partnership is, and should be, an unequal one—the organisation and its Officers are accountable to politicians and to the democratic process, and that creates an essential and an appropriate hierarchy. Within the hierarchy there are important and positive roles for both Members and Officers.

  23.  But whilst the White Paper spells out in some detail the positive roles for Members, it is much less explicit and developed about the Officer role, and it is, in part, confused or, at any rate, confusing. To have a clearer, and more accountable, set of arrangements for political decision making is obviously valuable in itself. But the real prize is faster and more determined continuous service improvement, coupled with shaping and implementing a strategic vision for improving the quality of life in local communities. The proposals for political executives need to be linked in to those objectives more firmly, and to be integrated within the repertoire of change which comprises the Modernisation agenda.

  24.  We see that being accomplished in part by emphasising the role of Members as providing the community leadership and the overall strategic framework, with Officers being responsible for implementing that framework and vision. But the White Paper is not clear on this. On the one hand, the diagrams associated with paragraph 3.7 in describing the various models all refer to the Chief Executive and Chief Officers as having a responsibility to "implement policy and secure service delivery for Executive", and elsewhere the White Paper emphasises the importance for senior managers to provide support to Councillors outside of the Executive and to account for Executive actions to Councillors generally. Further, paragraph 3.8 indicates that the new constitution of a Local Authority should specify "what should be the relationship between Councillors and Officers", and "in all the new forms of local governance Councils would continue to have a professional Chief Executive responsible for managing and securing the professional body of staff a large multi-function organisation needs to deliver modern well focused services effectively". However, other parts of the White Paper leave a real doubt as to whether that role will necessarily be available in the face of the powers and prerogatives of the Executive Members. For example, paragraph 3.3.1 says that "under the new forms of local governance the Executive would be responsible for effective implementation of Council policy and delivering services". Paragraph 3.4.3, in discussing delegations to individual Members of the Executive or to a group of Executive Members, the White Paper says that these may (emphasis added) be subject to conditions or limits—yet, if they are not, there will be no clarity around the scope of action it is intended should be conducted on a day to day basis through normal organisational functioning and operational decision making. Similarly, in paragraph 3.3.6, the responsibilities of the Executive are spelt out as "to be responsible for all matters of Council business" other than for certain very limited matters which are restricted to the full Council or to certain other specified arenas. There is insufficient indication of the need to ensure that those responsibilities are given effect through a Partnership with Senior Managers.

  25.  For a variety of reasons, the lack of clarity of roles and responsibilities between Members and Officers has and can create difficulties. Officers have not had the skills to support Members into a strategic and community leadership role, and that problem has been exacerbated by the absence of clear legislative and constitutional purpose for Local Government in that regard. Some Members have felt that they could best serve their constituents and ensure that the organisation was responsive by playing a significant role in day to day decision making. In our view, it is essential and critical that the whole of the organisation should be fully accountable to Members, and also that Members should be fully supported in the powerful roles envisaged by the Government. But we think it would undermine the modernisation process if the proposals for political executives led to a significant increase in Members involvement in day to day decision making. It would prevent Members focusing on and developing their new roles and responsibilities, it would not necessarily be more efficient, and it would perhaps increase risks in the area of ethics and standards.

  26.  Again, the National Assembly holds a useful model. Its officials will be fully accountable to the Assembly but for day to day matters and operational matters they are accountable managerially through the Permanent Secretary, supported by a clear and developed civil service code. We see a strong and effective partnership between Members and Officers, which is Member led, and which is forged on the basis of complementary roles and responsibilities, rather than the blurred accountability and lack of direction which can be associated with a lack of such clarity.

  27.  The issue of Member/Officer roles and relationships also has a major potential impact on the capacity of Local Government to address the increasing agenda on "Joined-Up" Thinking and Policy. In our view, there is a need for "joining-up" both at political level, around themes of community leadership and community planning, and also at the organisational level, where departmental "silos" can get in the way of effective use of resources and effectively addressing complex, cross-cutting issues. We see the new Cabinets (this being the most likely model to be applied in Welsh Local Government) as the place where joining-up can take place at a political level, both within the Council and then, through links between the Cabinet and external bodies, externally as well. But we also see a need for joining up at the operational level, within the organisation, and this is where we think that the role of Chief Executive and senior managers is a vital one.

  28.  The Government has rightly drawn on the history of Local Government in identifying the lessons from the Maud Committee in terms of the problems associated with the Committee system and the need to have clearer political executives and stronger political accountability. It needs to be linked up to the lessons of Bains, which helped to identify for Local Government the key significance of corporation working and sound policy advice.

  29.  Although in some respects the questions relating to the ethical framework are slightly different from those relating to Local Government organisation, we think there is a strong overlap. Not only does the increasing strength of political executive action need to be accompanied by an appropriately strong ethical framework. In addition, the scope of the ethical framework should include clear guidance on roles and conduct both of Members and of Officers, including considerations of mutual respect and the character of the role which is expected. There are developed codes from a number of other countries, including New Zealand and South Africa, as well as the civil service code in Britain, all of which offer some developed and tested models.

  30.  The whole area of Member/Officer relations is a key arena, and one which either the legislation or the guidance needs to address. It was evident across the 1980s and early 1990s that some of the Authorities facing the most significant problems in terms of service delivery were precisely those where Member/Officer relationships broke down or were soured by one or other reason. We believe that Member/Officer relationships have been improving in recent years, but that in certain respects they are still fragile, and need the support of clarity of roles and responsibilities. Interestingly, this was one of the key findings of an important study by Pam Fox for Solace when she reviewed, in some detail, the kinds of situations in which misconduct is likely to flourish, or where it is harder to deal with.

  31.  It is clear that, over the medium to long term, the character of Member/Officer relationships will change and develop and that is entirely accepted and supported. We think it is likely that over a period Members will develop into the new roles and will relish the challenges and opportunities which they provide. Those who come into Local Government as Councillors in years to come will do so in the light of the roles and responsibilities which the Government intends for them, and if only for that reason they are likely to come more equipped and with a positive embrace of those roles. Across the transitional period, in particular, is when the modernisation process is likely to be inhibited or thwarted by a blurring of roles or a lack of clarity in responsibilities.

  32.  The importance of positive and clear Member/Officer relationships is such that some relevant principles ought to figure in the legislation, in the codes of conduct, and in guidance. However, as presently drafted, Clause 16 would not require that guidance to be followed, but only taken into account, and its scope as currently drafted is not wide enough to enable these very important issues to be the proper subject of guidance. The propositions in the White Paper about the need for the new constitutions of Local Authorities to include definitions of roles and responsibilities is not reflected in the draft legislation, and is not under the present draft capable of being the subject of guidance. Nor are any principles enunciated which should guide the definitions and roles of relationships to ensure that the culture of decision making is one which supports and encourages Members in the community leadership and planning role and enables Officers to perform the management and implementation responsibilities which are referred to in the White Paper but which currently have little or no substance to them.

DECISION MAKING

  33.  In a period of change, especially, Local Authorities need very much to be learning organisations. Just as there needs to be a climate of openness and trust between a Council and its community, so does there need to be a culture of trust and mutual respect within the organisation.

  34.  The recent judgment of Porter V. Magill has helped to underline the importance of clarity of roles between Members and Officers, and a degree of separation. The Court of Appeal decision makes it exceptionally difficult to identify the dividing line between proper policy considerations which, ultimately, may well relate to political values or ideologies, on the one hand, and on the other considerations of narrow political advantage. It appears that a politician with a tainted political motive can persuade other politicians to take what would otherwise be a tainted decision on the basis of other considerations which are, in that context, lawful. Even in a traditional Local Government Committee environment which may be influenced through an unseen and unaccountable political process (as the Government itself highlights) it would be very difficult to draw the line as to quite which considerations were operating where. This would seem to open up the possibility for the kind of renewed pressures on Officers by Members with politically tainted motives to come up with reasons to justify what is fundamentally a politically tainted objective. That in itself is worrying enough. But how, we wonder, will the dividing lines of motive and reasons be drawn when the self same Executive Member may be able to translate a politically tainted motive into their own executive decision?

  35.  One of the likely areas of over prescription is in the area of the recording of decision making. In many Authorities, the recording of decision making is not under the direct control of the Monitoring Officer, but is a function of Committee Services Officers with a separate line of responsibility to the Chief Executive. It may be appropriate for the Monitoring Officer to be assured that there are proper systems for recording decisions, but there should not be a requirement that the Monitoring Officer perform the recording (either him or herself or through staff delegated directly by the Monitoring Officer). It may in fact be the case that the somewhat arm's length relationship envisaged for the Monitoring Officer in relation to ethics and standards would be far better performed if that Officer were not also directly involved in the recording of decisions, especially when the act of recording a decision might well be the point at which attempts are made to disguise inappropriate or unlawful motives.

  36.  Indeed, the White Paper generally appears to reflect a fairly crude and simplistic understanding of the complexity of decision making in Local Government. In particular, because Local Authorities are generally large providers of services, there are large numbers of operational decisions made by Officers, or (generally the larger ones) made by Officers in consultation with appropriate elected Members. If these are to the subject of record (against pain of criminal sanction) a new industry is about to be established which will completely dwarf that which has been represented in the traditional Committee system. If they are not to be the subject of record then there is a risk of intensifying tension and conflict across the Member/Officer relationship. To a degree, of course, that tensions exists now, but the Government's proposals on the recording of decisions and arrangements for delegations need more thought if we are not to run the risk that they will lead to a general worsening of such problems.

  37.  It is not suggested that the Government should seek to legislate either in relation to the issues raised in Porter V. Magill or in relation to political motives generally. It is probably impossible to legislate in a way which would override the application of judicial review principles and maxims. But it is possible to help underpin and ensure the integrity of the organisation, partly through clarity of roles and responsibilities, and partly through the judicious use of codes of conduct as applied to both Officers and Members.

THE ROLE OF THE SENIOR MANAGERS AND THE CHIEF EXECUTIVE

  38.  The following issues have been identified as relating to the new forms of political executive which may in part be addressed by consideration of the role of the Chief Executive and other senior Officers, as identified by a Solace Working Group.

  Some of the implications are:

 (a)   Decision Making:

  The new executive arrangements will permit decision making in private, by single party groups and by individual members. These are radical changes which require checks and balances which are in part provided for by the scrutiny system, (although that in itself requires clarification in terms of whether "scrutiny" is to happen generally before or after decision is made).

 (b)   Recording of Decisions:

  The Committee system is a very clear way of recording decisions and systems of officer delegation are generally laid down in council Standing Orders and Terms of Reference. Decision-making in different environments will require new approaches to recording decisions to ensure that appropriate audit trails are available to check on decisions and decision-making processes.

 (c)   Availability of Advice:

  It is axiomatic that decisions should be made upon the best advice available, although the advice does not necessarily have to be followed. Under the current system, advice is contained in committee reports and background papers are listed. The new system will require continuation of such advice and not only to the cabinet and/or controlling political parties.

 (d)   Staffing Matters:

  These essentially form a sub set of decision making but, given the large number of staff employed in local government, staffing matters deserve particular attention. It is vital that the new system retain the public service traditions of appointment on merit, equality of opportunity and, hopefully, an acceptance that staff on occasions have to make tough decisions and should not be subject to reprisals.

 (e)   Political Neutrality:

  The new systems have the potential to increase the party politicisation of officers. It is accepted that political advisers could be a useful part of the system but the essential neutrality of the core management and workforce should remain. It is not of course to say that the Senior Officers do not need considerable political acumen.

 (f)   Scrutiny Matters:

  Scrutiny will inevitably be used, probably by opposition parties, as a political weapon. Such action should not degenerate into mere political theatre and there needs to be some process for arbitration concerning matters of scrutiny. The scrutiny function also needs adequate support and to be aware of what decisions have been made (or are to be made) and how they have been made and where they have been recorded.

 (g)   Availability of Information:

  One of the benefits of the committee system is that it has contained within it large amounts of information which members have been able to use to keep up to date with developments within the Council. Provision will need to be made in the new arrangements for members to be similarly kept up to date with developments within an individual Council and Local Government generally.

 (h)   Standards and Ethics:

  A Standards Committee could also become subject to abuse, again possibly by Opposition parties, to bring before it trivial or inappropriate matters. There still needs to be some interpretation and judgment involved in pursuing issues to a Standards Committee which ensure that it becomes and remains an effective device.

  39.  SOLACE believes that the framework for the role of Chief Executive still remains robust and relevant but that certain, more detailed aspects of the job need to be defined as part of the creation of new political executives. The following points are put forward as matters requiring attention.

    —  The effective management of a Local Authority requires operational responsibility for performance to be vested in the most Senior Official employed by each Council (normally the Chief Executive).

    —  The Senior Management should remain politically neutral, whilst being politically astute.

    —  The Chief Executive should be responsible for delivering to the Cabinet and the Assembly, a system of professional advice on all relevant topics and that where such advice relates to decision making, then it should be on the record. It is, however, accepted that informal advice will necessarily be given to majority parties and/or cabinets; this has long been a feature of a Local Government system and will remain.

    —  The Chief Executive should be responsible for ensuring there is a system for clear delegation of decisions which has been decided upon by the Council and that decisions which require recording are so recorded in a form which will enable public and other scrutiny and that there is access to appropriate supporting documentation.

    —  The Head of Paid Service/Chief Executive also needs to play a significant part in accomplishing changes and developments of culture within the organisation. S/he must be an agent of cultural change, and help the organisation to modernise its character and its conduct.

    —  A mechanism for appointing Chief Executives should be approved by the whole Council and the whole Council would need to invoke the procedure for the dismissal of a Chief Executive.

    —  The Government is right to emphasise that it is most appropriate for Members to be involved in appointing only the most Senior Officers, although it is clearly appropriate that the Council should determine the overall procedures within which all staff appointments are made, receive information on all those appointments, and are able to satisfy themselves that procedures are operating fairly and in accordance with best personnel practice.

    —  The Chief Executive should be able to attend any meeting of the Council and should have access to all documentation. If there is a need to know issue in relation to, say, confidential information, the Monitoring Officer should arbitrate.

    —  The Chief Executive should be charged with ensuring that there is within a Council, adequate systems for dissemination of relevant information to all Members of the Council.

    —  Where Members want support in developing or delivering their role in community leadership or governance, the Chief Executive and senior Officers should be willing to provide that support.

  40.  We believe that such clarification of the role of Senior Managers and the Chief Executive will help to create the framework for a positive partnership with elected Members, and will enable them to be better focussed and better supported in the new and powerful roles which the Government has shaped for local elected politicians.

25 May 1999

Supplementary memorandum by SOLACE (Wales)

  During the evidence given on Tuesday 29 June 1999 by SOLACE, a question was raised by Lord Ponsonby of Shulbrede at number 274 in which he raised the question as to whether English Chief Executives might consider that it would be a good thing for Members of the Executive to serve on the Scrutiny Committees.

  In that regard, a specific example came to mind but it was one which I had come by under "Chatham House" rules, relating to Bedfordshire County Council. The Chief Executive, Denis Cleggett, has now agreed that the example can be brought to the attention of the Joint Select Committee.

  The interesting thing about Bedfordshire County Council is that it has been running a "Political Executive" for some months now, and established it on the basis of a separation between the executive and the scrutiny functions. However, on the basis of the experience of its operation, they have had cause to reflect on whether it would not be desirable to have a closer engagement between the Executive and the Scrutiny Committees. In their case, they are considering whether the Chairs of the Scrutiny Committees should play some part in the Executive. They are thus exploring the same general proposition, of closer engagement between executive and scrutiny functions, but coming at it from the other side, as it were.

  Denis Cleggett would be pleased to provide further information should it be of assistance to the Joint Select Committee.

12 July 1999


 
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