Memorandum by Birmingham City Council
A. NEW POLITICAL
(a) Clause 2(5) of the draft Bill appears
to offer the prospect of further modelsin addition to the
three models described on the face of the Billbeing prescribed
by regulations. However, this is not consistent with subsequent
Clauses of the Billeg 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.
(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 provisionsrelating to London's mayorin
the Greater London Authority Bill). The qualifications for candidature
as an elected mayor should be similar to those for a councillorie
some connection, through residence, work or property, with the
area of the local authorityand 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.
(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
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 makethis 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.
B. NEW ETHICAL
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 withthey 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"
(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
(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 suspendthis 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 membersie
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'
24 May 1999