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


Memorandum by Birmingham City Council


Further models

  (a)  Clause 2(5) of the draft Bill appears to offer the prospect of further models—in addition to the three models described on the face of the Bill—being prescribed by regulations. However, this is not consistent with subsequent Clauses of the Bill—eg Clause 3(4) appears to limit possible arrangements to the three models described in the Bill. This needs to be clarified and in particular, the opportunity to gain approval for further models needs to be preserved.

Elected Mayors

  (b)  The Bill should allow local authorities some discretion regarding the use of the title "mayor". They should be allowed to use an alternative title, for example, "council leader", so that the Chairman of the Council can still be titled "mayor" or "lord mayor" and thereby the important "first citizen" role with which people are familiar can be maintained, irrespective of which model the local authority chooses to adopt.

  (c)  The draft Bill is silent on the qualifications of elected mayors and on the circumstances in which they may be removed or become disqualified from office. (This is in contrast to the corresponding provisions—relating to London's mayor—in the Greater London Authority Bill). The qualifications for candidature as an elected mayor should be similar to those for a councillor—ie some connection, through residence, work or property, with the area of the local authority—and the disqualification provisions should be the same as in the London Bill.

  (d)  It is unclear whether a serving councillor can be a candidate for, or indeed be elected as, the elected mayor of his/her authority. The paper seems to imply that this will not be possible, but the Bill is silent on the point. This needs to be clarified.

The Executive

  (e)  Clause 2(7) of the draft Bill, which limits the size of the executive to 10 members or 15 per cent of the membership of the Council (whichever is the smaller), appears to be unnecessarily prescriptive. It is difficult to see the justification for setting a standard limited at such a low level. It appears to pay little regard to the wide range of sizes (in terms of numbers of members) of local authorities. At the very least, the Clause should be amended to say "whichever is the greater".

  (f)  The Bill has little to say on how the executive will actually operate as a decision making body. Para 4 of Schedule 1 touches upon this point, but this is one example of where more detail should arguably appear on the face of the Bill. This could be very important in a situation where the executive has extensive decision making powers. Issues which should be covered include notice of meetings, the quorum, terms of office, filling of vacancies, resignations, requisition of meetings, etc.

  (g)  Para 3.59 of the paper makes a number of important points about access to information, etc regarding decision making by the executive, but these points are not then reflected in the Bill. Clause 23 (the power to modify enactments) needs to be developed to make clear how these and other points will be dealt with.

The definition of "proposals"

  (h)  The paper refers in various places to "a new constitution" and Figure 9 provides a useful checklist of the points which the new constitution would have to deal with. However, the definition of "proposals" in Clause 10 of the Bill is, in comparison, very general and vague. This definition should be amplified so as to ensure that the local authority must work up, for consultation and then possible adoption, a detailed constitution of the type envisaged by the paper. This will be important when so much will depend upon the detail, as opposed to the general form, of the proposed executive arrangements.

The need for a referendum

  (i)  The Bill limits the need for a referendum to models (a) and (c), both of which involve an elected mayor. In these cases, there is then some certainty (because the result of the referendum is binding either way) and also some continuity (because there cannot be more than one referendum on a five year period). Is there a case for providing that the adoption of any of the models should be subject to a referendum?

The form of the referendum

  (j)  The Bill gives a wide power to the Secretary of State to prescribe the detailed form of a referendum, particularly where the Secretary of State is exercising his "default" powers. It will be important that, subject to certain basic safeguards, there should be as much local discretion as possible about the detailed form.

Role of the full Council

  (k)  Para 3.9 of the paper envisages that there will be a number of decisions which only the full Council will be able to make—this will presumably be prescribed by way of regulations under Clauses 3(1) and 3(3). This raises the practical issue of the suitability of the full Council as a decision making body. As regards decisions such as the consideration and approval of "key plans", it may well be appropriate to allow the full Council to delegate such consideration to a committee. The bill and/or the regulations should allow for this.


Consideration of Complaints

  (a)  The City Council is disappointed to note that the draft Bill persists with the approach of requiring all complaints of misconduct against members to be raised with, and investigated by, the Standards Board. The City Council remains convinced that this approach is mis-conceived. First, it is inconsistent with the principle of "self regulation" which was so strongly advocated by the Nolan Committee and second, it may well lead, in the City Council's judgment, to a situation where the Standards Board is so overwhelmed with complaints that either the operation of the new system becomes beset by backlogs and delays or a disproportionate level of resources has to be allocated to the new system in order to keep it operating within reasonable timescales.

  The City Council would urge the Government to respond more positively to the suggestions which the City Council and the LGA have previously made on this point, namely that all complaints should start off with the local authority's own Standards Committee, but that there should then be rights of appeal and "reference up" to the Standards Board. The right to refer a matter up to the Board could be exercised by the Standards Committee itself (eg the Committee would only retain jurisdiction if all the Committee members were content), by the authority's auditor or indeed by the Standards Board itself (eg if it were laid down that the Board had to be notified of the details of all complaints being dealt with—they would then have the opportunity to "call in" complaints as they saw fit).

  The City Council is convinced that, by adopting this form of alternative approach, the Government's key objective (ie to produce a robust and credible system for the consideration of complaints) would still be met. At the same time however, the system would be simpler and less expensive to operate and there would also be a far greater sense of ownership and responsibility on the part of the local authority. The City Council's view on this matter is re-inforced by the practical experience which it has gained over recent times by operating its own "pilot" Standards Committee.

  (b)  As mentioned above, all complaints will (according to the draft Bill) start off with the Standards Board and will be investigated by an Ethical Standards Officer (ESO) on behalf of the Board. One of the possible outcomes of such an investigation (under Clause 32) is that the matter will be referred to the local authority's Standards Committee. However, such a Standards Committee will not, according to Clause 30, have any sanctions at its disposal. Some powers of sanction must be provided.

  (c)  All the references in the Bill to conduct the consideration of complaints of misconduct are to "members". Elected mayors are not mentioned. They should be brought within scope of all the provisions.

 Suspension of a member

  (d)  Clause 37 (in the case of interim suspensions) and Clause 41 (in the case of suspensions as a final sanction) both provide that the suspension must be made by the local authority via its Standards Committee. This seems to be a very odd and convoluted way of putting a suspension into effect. It is particularly odd when the local authority will not have been involved in the consideration which has led to the decision to suspend—this will all have been dealt with by the ESO or the Board. It would surely be more sensible for the power of suspension to be exercised directly by the ESO or the Board.

  (e)  It will be important to define more clearly the effect of "suspension". Does the member lose all his/her rights as a member during the period of suspension?

Appeal to the High Court

  (f)  The rights of appeal to the High Court under Clauses 37(11) and 41(13) appear to contemplate a full re-hearing by the Court. Is this necessary or is it really what is intended?

Code of Conduct for employees

  (g)  The July 1998 White Paper contemplated that the provisions relating to codes of conduct for employees would be similar to those relating to codes of conduct for members—ie there would be a set of principles and a model code set nationally, but then each local authority would have some discretion regarding the terms of its own individual code. However, Clause 42 now provides for a single national code of conduct for employees to be issued by the Secretary of State without any local discretion. The approach to the code for employees should be the same as that for the members' code.

24 May 1999

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