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


Memorandum by Barnsley Metropolitan Borough Council


  I am writing in response to the above consultation document.

  As part of its positive approach to modernisation, this Authority has already adopted a new political structure based on the Cabinet/Leader model; incorporating a Local Standards Board. We therefore welcome the latest document; especially as the consultation paper and draft legislation appear to accord closely with the new arrangements which we have adopted in Barnsley.

  I am also pleased that the Government are proposing to revise those aspects of the existing legisaltive framework which currently impose some constraint on the operation of modernised structures such as ours (I refer here to measures in the consultation paper to enable "single party" cabinets throughout local government; remove the requirement for a separate Social Services Committee; and to change access to information requirements as they relate to meetings of the Cabinet).

  Our specific comments are set out below, divided between Parts One and Two of the draft Bill. These comments are informed by the operation of the Authority's new political structure—which has been running now for over three months—and by the process of developing it, which itself took 12 months.

  I must also reiterate, before setting out our comments, that the authority is strongly supportive of the consultation paper and draft Bill, as demonstrated by the action already taken in Barnsley. Our comments should be read in that context, and are based on a wish to ensure that the final legislation supports the most effective operation of the new forms of political structure. We endorse the broad thrust of the provisions, as they relate to the Cabinet/Leader model, and you will see that, in the main, our points relate to the "fine detail" of the proposals.


  (a)  As already stated, this Authority has adopted a new structure based on the Cabinet/Leader model. Within our arrangements, each Cabinet Member is supported by a Deputy. There appears to be no explicit provision for this within the draft Bill. The Authority considers that Cabinet Duties form an important part of the new arrangements, in terms of providing cover on the unavoidable occasions when Cabinet Members are unable to attend meetings of Cabinet, Scrutiny Commissions and other bodies, and also in terms of providing general support within the portfolio of individual Cabinet Members.

  The demands on "executive" Members, both collectively and individually, must not be underestimated and we feel that there is a strong case to be made for Deputies to be explicitly provided for in the new legislation.

  (b)  The emphasis on consultation with the public and other stakeholders in determining new political structures and ways of working is to be welcomed. Indeed, this has been, and will continue to be, central to our own change process in Barnsley.

  It should, however, be borne in mind that consultation which focuses intially and exclusively on options for different forms of executive may not produce meaningful conclusions, given the level of public disengagement from local government which, unfortunately, exists (and which, fundamentally, the modernisation measures seek to counter).

  This Authority's approach has been to undertake surveys of public opinion—including focus groups—around wide-ranging issues of local governance, to identify the issues and principles which should be central to the change process; in order to deliver the improvements in accountability and responsiveness which local people are seeking. The process of consultation will be ongoing, including as part of our evaluation process.

  Another point worth making is that our public consultation suggested strongly that the form of executive is not necessarily the issue of most interest to local people—Barnsley people were generally more interested in structures and processes to facilitate participation, accountability and responsive delivery of service within local areas.

  I note that the draft bill allows some local flexibility in the form of consultation and this is to be welcomed, to ensure that consultation is comprehensive, effective and meaningful within local circumstances.

  ( c)  I assume that the intention of clause 10(5) of the draft Bill is that in cases, such as my own Authority, where the Council has already adopted a modernised structure which meets the requirements of the legislation, and has taken proper steps to consult the public and other stakeholders as part of the process, it will be possible to maintain such arrangements (subject, in our own case, to review every five years). This is an important issue given the encouragement in the earlier White Paper for local authorities to take steps in advance of new legislation.

  (d)  The need to allow for local flexibility is highlighted by the arrangements we have already made in Barnsley for the functions proposed in the consultation paper for "overview and scrutiny" committees. Whilst, in the main, these functions are provided for by our six Scrutiny Commissions, other aspects are covered by our Member Policy Workshops and Area Forums.

  (e)  Consideration should be given to there being some scope for participation of non-elected persons in any local executive decisions taken by an Area Committee appointed by the executive. It may strengthen the co-option of non-elected persons if they could participate in any executive decisions that were delegated to area Committees with regard to local matters, such as where there was a small community fund for local initiatives (although it should be noted that this does not presently apply to our own arrangements in Barnsley). The present legislative restrictions on non-voting co-optees would prevent this if they remain in their existing form with regard to any committee which is appointed by the executive to discharge its functions.

  (f)  I can anticipate that difficulties may arise in terms of challenges of the validity of decisions by a Local Authority if matters raised during the scrutiny process can be cited as definitive supporting evidence. Whether a decision of a Local Authority is lawful or not should rest upon a proper examination of the decision making process followed by the executive, having regard to any reports and other relevant supporting information. The scrutiny process should not be regarded as a substitute for such an examination.

  (g)  The text accompanying the draft Bill does not make it entirely clear precisely what the executive may consider in private. There is reference to political discussion being allowed in private. It is surely appropriate to acknowledge formally the reality of a structure with an executive whereby, as with the Cabinet nationally, initial discussion of issues, together with relevant reports and advice of officers, is undertaken in private. It is right, as the text goes on to say, that there should be public access to information about the decisions which have been taken, including the reasons for them, following an initial private discussion, with the provision of information being made available on the basis of existing access to information legislation.

  It is obviously important that there is lively debate about controversial important issues, but surely this should take place in the Council or Scrutiny Committee Meeting and other public arenas, rather than by all the deliberations of the executive being conducted in public.

  (h)  The inference is that access to information provisions will apply to decisions of the executive with reference to making the advice of officers available. Careful consideration needs to be given to any proposals that the advice of officers will be available to be published in all cases, in addition to factual material. It needs to be recognised that Public Authorities take decisions which impact directly upon individuals and organisations. In seeking to achieve a legitimate public objective, a Local Authority may unavoidably come into conflict with persons so affected from time to time. Making advice available without any restriction would give an unfairly advantageous position to those who may wish to challenge the decision of a Local Authority.

  That decision is purported to be taken for wider public benefit and these wider public interests would be disadvantaged in this situation. The Local Authority rightly would not be allowed benefit of any advice which had been given to any person who wished to challenge its actions. In particular, with reference to the provision of legal advice, such an approach would be contrary to the fundamental principle that communications between lawyers and their clients should be privileged. It is not equitable that a Local Authority should be denied the benefit of Solicitor/client privilege so that it can be advised properly by its legal advisers. Those advisers are subject to professional regulation which will provide the necessary safeguards against inappropriate advice, the existence of which never gets into the public domain, being given.

  (i)  In drafting any regulations to specify what are executive functions there may be certain grey areas. In particular from our own experience in establishing arrangements for executive and scrutiny activities in Barnsley, compulsory purchase orders have caused some difficulty. After full consideration the view has been taken that these should fall within the remit of executive decisions and not regulatory (ie non-executive functions) given that there is a requirement for such an order to be confirmed by the Secretary of State and there is a statutory procedure to deal with objections.

  (j)  The intention is that officers will be under a duty to appear before Scrutiny Committees. Some consideration should be given to whether such a duty should be placed upon any officer employed by a Local Authority. Some recognition needs to be made that it is the relevant Head of Service who is accountable to the Local Authority for the delivery of the service and for the actions of the officers within their service. It is only right that such accountability is reflected in the legislation. Failings by individual officers may require action of a disciplinary nature, but that action would fall outside the legitimate remit of a Scrutiny Committee and should be taken following the established procedures which are afforded under the Contract of Employment. No doubt a Head of Service may decide to ask a colleague to attend a Scrutiny Committee, either in their place or to assist them, and whether or not that is appropriate can be dealt with applying principles of reasonableness under employment law. However, in terms of accountability and compellability to appear before Scrutiny Committees surely this should rest with the Head of Service.

  (k)  There is an implication that representatives of churches, and also parent governors, will be full voting members of Scrutiny Committees, rather than the executive. However, whilst there is a specific reference to the need to abolish the statutory requirement for there to be a Social Services Committee, there is no reference to the need to revoke the statutory rights of Church representatives etc, to sit on a Committee discharging education functions, such as a Cabinet.

  Simultaneously with the draft Bill the DfEE is consulting on draft regulations pursuant to the Schools Standards and Framework Act 1998 to make provision for parent governors to be represented on local government committees dealing with education matters. It is obviously essential that there is some co-ordination with the DfEE to ensure that any regulations made under the 1998 Act tie in with the proposed changes to decision making structures contained in the draft Bill.

  In terms of our own arrangements, the position—determined following discussion with the organisations and individuals concerned—is that former co-optees to the Education Committee are now co-opted to the Scrutiny Commission which deals with Lifelong Learning. The position of such representatives, in terms of being consulted on major issues, is safeguarded in that policy and budget matters are subject to Cabinet recommendations to full Council, via Scrutiny Commissions; with the Scrutiny Commission able to refer such issues back (on one occasion) for reconsideration by Cabinet.


  (a)  The proposed Code of Conduct needs to be sufficiently flexible to allow for legitimate participation by local elected Members in partnerships and other outside bodies. Provided that such Members do not stand to benefit personally I would not have thought it would be objectionable, given the importance of working in partnership which the Government is emphasising, and which we endorse, for elected Members to be able to participate in decisions of the Local Authority which affect bodes which they represent. Clearly an interest should be declared but that should not prohibit participation in the item of business. Whether voting should be prohibited is a matter which requires further discussion, but there is a strong case for Members to be able to influence the Council process in such circumstances.

  (b)  Further clarification is required as to the respective roles of the proposed Standards Board and the Local Government Ombudsman. Should a breach of the Code by a Member, as opposed to action by the Authority as a whole, be a matter entirely for the Standards Board or should it come within the scope of the concept of maladministration and be a matter for the Local Government Ombudsman as well? At present the Local Government Ombudsman takes the rule that breach of the Code is prime facie maladministration, and of course this presents difficulties in a sense that the Authority as a whole is not in a position to control the actions of individual Members. Equally if the conduct of a Member in breach of the Code has caused an individual to suffer injustice there ought to be some scope for the Standards Board to be able to provide some form of recompense.

  (c )  Similar statutory protection should be provided for the Monitoring Officer and the Section 151 Officer in the same way it has been introduced for the Head of the Paid Service in previous legislation.

  (d)  The thrust of the provisions with regard to the Standards Board and investigations thereunder is that individual conduct and failings would form the subject matter for examination rather than the failings of the Authority as a whole. If that is the case there may be some advantage in expressly making clear in law that any failure with regard to any Code by one or more Members of an Authority does not in itself invalidate any decision taken. This is becoming an area of increasing uncertainty legally.

  Adequate safeguards exist through the test which the Courts have employed under the common law which is that a decision will be susceptible to challenge if there was a real likelihood of bias. This may involve the actions of one or a greater number of Members depending upon the circumstances, but it obviously does not follow that simply because one or more Members fail to comply with the provisions of a Code that such a stringent test of bias has been satisfied. Similar clarity should be provided with regard to the status of decisions taken where the Local Government Ombudsman has made a finding a maladministration, where again the legal position is becoming increasingly uncertain.

  (e)  There is a strong case for introducing provisions such that the approach taken by Ethical Standards Officers should mirror the approach which has been sensibly adopted now for some time by the Local Government Ombudsman with regards to investigations. The relevant Authority should be asked initially to look into the matter and express a view before a decision is taken whether or not to commence a formal investigation. (Although it is true that the Local Government Ombudsman now treats all matters as an investigation, as opposed to the previous approach of a preliminary consideration followed by an investigation, in practice they do not commit themselves to the time and resources of an in-depth investigation without allowing the Local Authority to comment in the first place). The benefit of an explanation by the Authority concerned to an Ethical Standards Officer, who may be somewhat remote from the circumstances regarding the individual complaint, must be a useful aid in the process in determining which matters should or should not be investigated in depth. This would also provide the authority's own Standards Committee with a more substantial and effective role.

  (f)  Given the emphasis towards mediation in the conduct of litigation, consideration should be given to including scope within the provisions with regard to investigations by Ethical Standards Officers for complaints to be resolved by way of mediation, rather than necessarily proceeding and taking their full course.

  One general point I wish to add concerns the proposed new duty to promote social, economic and environmental well-being. This relates strongly to the community leadership role, which underpins the recent changes made, and being developed, within Barnsley. I consider the new duty to be an integral part of the modernisation "package" and we would encourage the Government to introduce the necessary legislation at the earliest opportunity.

19 May 1999


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