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


Memorandum by Brighton and Hove Council


1.1  Brighton and Hove's approach to modernisation

  Brighton and Hove Council welcomes the publication of the bill as a draft as this allows local authorities to input into the development of these proposals in a meaningful way. In our authority, the experience gained by councillors from initiatives such as community planning, joint advisory panels and best value formed the basis of our review of the democratic management structure. Our new interim structure (pending legislation) was adopted by the council on 14 April 1999 and is based on six key roles for councillors.

    —  executive councillor

    —  policy advice

    —  scrutiny

    —  community representation and advocacy

    —  partnership working

    —  statutory committee duties

and the additional role of leader.

  The attached diagram (Appendix 1) shows the proposed interim democratic management structure for Brighton and Hove. The proposed structure is drawn as a circle or wheel to demonstrate the inter-relationships of the key roles as these are seen as crucial to the success of the proposals. Brighton and Hove councillors are keen to emphasise the fluidity of the structure in terms of:

    —  the "cycle" of policy formulation, development, adoption, implementation, scrutiny and accountability.

    —  the movement of councillors between the roles of policy development, scrutiny, community consultation, committees etc.

  Copies of the job descriptions for each of the councillor roles are attached as Appendix 2.

1.2  Consultation

  As the full changes to a "cabinet" model cannot be introduced until such legislation is in place, the council knew that it either had to await such enabling legislation, or that it may use the intervening period to move in a phased way to the final model, subject to consultation. The council has adopted its new structure early as it believes that moving to an interim model following the May 1999 elections has the benefit of providing a "development period" in which new roles for councillors and officers can be learned. This approach has been chosen, because as stated in the DETR press releases, these changes represent a complete overhaul of council structures which have remained basically unchanged for over 100 years. An interim period will allow the council to evaluate new ways of working, with citizens, customers and stakeholders to ensure that the proposals meet the fundamental aims. This process begins with two focus groups in June. The authority has also joined the evaluation group at Inlogov for a wider independent evaluation.

1.3  Community Planning and the duty of well being

  In preparing for democratic management changes Brighton and Hove councillors organised into two working groups. The Democratic Management Group looked at the inward focus of how best to organise to ensure transparency and accountability. The second group, the Community Participation Group looked at our outward focus, and the aims of increased involvement and democratic renewal. The two clearly overlap and this council had hoped to see the duty of well being and guidance on community planning in this bill.

  Community leadership is supposed to be at the "heart" of modern local government and this certainly is the case in the model adopted by Brighton and Hove. Brighton and Hove would therefore urge government to include the new duties and powers for community planning and social economic and environmental well being (ie community leadership) alongside the proposals for political leadership. This would bring the new and powerful role for all councillors to life.

1.4  The divide between policy formulation and scrutiny

  Cycle of "policy formulation", adoption, scrutiny etc. The bill isn't clear enough about the inter-relationship between policy formulation and scrutiny (this stems from the original problem of the term scrutiny being used to cover policy development as well as post hoc consideration of a matter). It needs to be clearer on the "overview and scrutiny functions" to ensure that councillors aren't unnecessarily locked out of the policy formulation process.

  Brighton and Hove's model has lead councillors, working with the executive to develop and recommend policy and performance improvements and we believe this thinking is further ahead than other council's thinking. Would it comply with the legislation as it is currently written? ie the lead councillors having a direct link to the executive councillors (although their role is advisory)

  Equally the findings of scrutiny need to inform the work of the Executive.

1.5  Freedom of information and open decision

  Within the current framework of access to information legislation covering local government, the new proposals reduce the rights of members of the public to have access to information about decisions to be taken by their council and its components.

  At present agendas and papers for the council and its committees must be available to all relevant members of the council (including opposition councillors) well in advance of the meeting, and to the press and public at least three days before the meeting at which the decisions are to be taken.

  These requirements will continue to apply to full council, its committees, and to scrutiny committees, but not to executive decisions. The Mayor or cabinet will make a wide range of decisions. Although there will be a requirement to public these decisions after they have been made, it is not proposed they are required to meet in public or to publish agendas and papers in advance. This is a major loss of openness.

  Although the paper states that the executive will be required to publish their decisions and factual and background papers, this will take place after the decision has been made, and no time frame is given as to how quickly this must take place.

  This will mean a loss of information to non-executive councillors. In particular, elected councillors will not have a right to know in advance of decisions which directly affect their ward, such as a decision to close a service in the area. This undermines their representative role.

  We believe this should be reconsidered. In Brighton and Hove we have set up a series of protocols to ensure that papers are available prior to meetings and that most meetings are held in public. These protocols are attached as Appendix (3). There could be a requirement for executive board meetings to take place in public, and with papers published in advance. As at present, there could be a list of exceptions for which the executive could meet in private, with officer advice and support. The executive could also meet in private, with or without staff, for more informal discussions.


2.1  Arrangements with respect to executives

  The proposed new forms of local governance provide for a separation of the executive to give "leadership and clarity" to decision taking. This is linked to making local government more efficient, transparent and accountable.

  Brighton and Hove supports the proposals for a separation of the executive and has based its new structure on the fundamental aims of:

    —  Delivering a streamlined decision-making process and

    —  Delivering services within best value


and believes that this separation also furthers the aims of making local government more transparent and accountable.

  To ensure transparency in decision-making processes protocols have been developed and agreed by the council and are attached for information as Appendix 3.

  In Brighton and Hove accountability will come not only through the scrutiny process but through the protocols that require local consultation and relevant involvement prior to decision-making.

2.2  Form of the Executive (s 2)

  2.2.1  Options

  The Bill sets out four options:

    (1)  a directly elected mayor with an executive

    (2)  a council leader with an executive

    (3)  a directly elected mayor with a council manager and

    (4)  "such form . . . as may be prescribed in regulations made by the Secretary of State" (Clause 2(5)).

  Brighton and Hove Council recognises that within each of the three models put forward there is scope for local variation. However, we would want, through the evaluation of our interim structure and public consultation, to test out whether there are other possible structures. Depending on the timing of the Bill there may be scope for greater diversity to develop. These changes are recognised as the most fundamental changes in local government for over 100 years and early lessons learned should, if at all possible, help influence the legislation. It may be that Clause 2(5) may provide an opportunity to revise the legislation in the light of experience.

  Clause 2(5) indicates that other forms for local authority executives may be prescribed by the Secretary of State. An early indication of what these may be would assist LA planning. Vital, given suggestions to move to early implementation.

  Is there to be provision for a deputy in the second model? (Clause 2(3)).

  Brighton and Hove Council would be keen to participate in such an evaluation.

  2.2.2  Size

  In relation to the size of the executive the draft Bill suggests that:

  The number of members of a local authority executive which takes the form specified in subsection (2) or (3) may not exceed whichever is the smaller of the following numbers:

    (a)  10 and

    (b)  15 per cent of the total number of councillors of the authority (disregarding any vacancies).

  The proposals for size of the executive are based on the presumption that a smaller team will be highly visible and have clear areas of responsibility. The model Brighton and Hove is piloting currently has nine executive councillors out of a council of 78 members. These councillors are however supported by 19 lead councillors to advise on particular areas of policy and strategy. This arrangement recognises the breadth of the executive councillor portfolios and also helps the council to look at its services in a more customer focused, holistic way. Examples of the lead councillor portfolios include Young People, Early Years and lifelong learning. It also supports Brighton and Hove's approach which is based on getting the decision right in the first place, through effective consultation and involvement.

  We would support the LGIU's views that the executive should represent a reasonable range of the community, such as different geographical areas, communities of interest and service interest and expertise.

  Clause 2 (7)(a) What would cause the Secretary of State to amend the size of the local authority executive?

  2.2.3  Members

  The proposals state that membership of the executive would normally be formed by the majority party or a coalition. The interim structure adopted by Brighton and Hove has a majority group executive because this seems to most closely reflect the vision of personal accountability and responsibility linked to specific portfolios. However, we will look at other models currently being tested during our evaluation.

  2.2.4  Executive functions (s.3-6)

  Local leadership, local choice s.3.29 states what the executive role should cover.

  In all the new forms of local governance, the executive will have wide ranging leadership roles. It will:

    —  lead the community planning process;

    —  lead the preparation of plans and strategies;

    —  consult on and draw up the annual budget, including capital plans, for submission to the full council;

    —  lead the search for best value;

    —  take in-year decisions on resources and priorities to deliver the strategies and budget approved by the full council, consulting with other councillors and stakeholders in the local community as necessary; and

    —  be the focus for forming partnerships with other agencies and the business and voluntary sectors locally to address local needs.

  Brighton and Hove Council supports this view of how an executive should function and sees as key to its success the complimentary roles of partnership working, scrutiny and consultation.

  Clause 3 (2)—it is essential for LA planning to see the draft regulations relating to "executive functions" as early as possible. Moves towards early implementation will otherwise be severely hampered.

  Will regulations cover the relationship between the executive and other parts of the council eg council itself, other committees and sub-committees?

  Will the regulations cover the relationship between an officer with named executive delegations, other officers and the statutory officers?

2.3  The executive/representative split (s.7) and the overview of scrutiny committees

  Fundamental to the success of the new models is getting an appropriate balance between the role of the executive and the council as a whole. Councillors will only be attracted to work in authorities where all contributions are seen as worthwhile and influential.

  Executive arrangements by a local authority must include provision for the appointment of overview and scrutiny committees.

    (a)  to scrutinise the discharge of the executive functions; and

    (b)  to make reports and recommendations to the authority or the executive on matters relating to the discharge of:

  (i)  the executive functions of the authority; and

  (ii)  other functions of the authority which are connected with those functions.

  2.3.1.  The role of scrutiny

  In Brighton and Hove the role of scrutiny will cover:

    —  monitoring service performance and critical success factors;

    —  scrutinising policy outcomes—eg the implementation of strategic priorities;

    —  scrutinising and reviewing policies and practices within a cross-service remit;

    —  considering the outcome of best value reviews and how they have been acted upon;

    —  holding executive councillors and chief officers to account; and

    —  submitting reports to Policy and Resources Committee through the executive board in writing, to the Scrutiny Management Committee and to council if necessary.

  The scrutiny role is crucial to the new democratic management structure and will require officer support, both in terms of administrative support and research.

  2.3.2  Scrutiny Management

  In addition to the four scrutiny boards, this council has set up a small Scrutiny Management Committee of seven councillors.

  It is composed of non-executive councillors and will be politically balanced. It will meet monthly to consider requests for scrutiny, agree the work programmes of the Scrutiny Boards and receive their findings.

Specific roles

  The Scrutiny Management Committee will:

    —  receive and consider requests for scrutiny and will determine the means for scrutiny in each case. In carrying out this function the committee will have regard to resources available and will ensure that the same matter is not scrutinised by more than one board/review;

    —  consider any Notices of Motion requesting scrutiny signed by six or more councillors;

    —  receive all the final scrutiny reports as part of its management function. The Scrutiny Boards will issue their reports to the executive board in waiting, and the Policy and Resources Committee for attention, and can require the reports to be sent to council;

    —  monitor the resources allocated by council to the scrutiny function;

    —  agree and allocate the portfolios for the Scrutiny Boards;

    —  agree the work programmes for the Scrutiny Boards and allocate requests for scrutiny to the appropriate scrutiny function (board or one-off review); and

    —  submit an annual report, and further reports as necessary, on the scrutiny function of the council.

  This model has been set up to ensure full, efficient and thorough scrutiny and may be of interest to other authorities.

  Clause 7—will "overview" and "scrutiny" be defined? Is there a difference between them?

  Will regulations include a veto of executive decisions?

  Will regulations provide a penalty for non-compliance with the duty to attend scrutiny committee meetings?

2.3  Membership

  The Brighton and Hove model respects the division between scrutiny and executive, with no member of the executive sitting on a scrutiny board. However, there will be lead councillor involvement in some scrutiny roles. This is seen as beneficial to the process as a whole as the expense built up in developing a policy proposal can then best be used in evaluating the impact of its implementation.

2.4  Proposals for the executive and referendums (S10 and 11)

  Every authority is required to draw up proposals for the operation of its executive arrangements and send this to the Secretary of State, setting out which form of executive it wishes to take. If such a proposal includes an elected Mayor the authority must hold a referendum on the proposals before taking steps to implement them.

  We note that the Secretary of State will publish regulations on the conduct of referenda. We believe issues these regulations need to cover include unbiased wording of questions, the time-tabling of referenda, particularly where there has been a public petition, regulation of campaign expenditure including any use of public money, and rules for the council itself in producing public information.

  "Local leadership, local choice" expresses the view that in consulting the public, a range of options should be put and not "a single favoured option". We believe that if referenda are to be required, it would be more consistent with this approach to allow a referendum on any of the new options, or a multi-option referendum. We are also concerned about how informed the public can be on the differences or impact of models which are very new and untested in many ways and so believe a test period with the public involved in evaluating will help make the process easier to take part in and more interesting.

  Just as there has been concern about low turnout for elections, there could be low turnout for referenda on elected mayors. Although the cost of referenda would be reduced by holding them on the day of another election, the cost could still be a deterrent. Brighton and Hove recently held a referendum on a local issue.

  Clause 11—Holding a referendum only once every five years makes it very slow.

2.5  Publicity on new arrangements (S12)

  Brighton and Hove supports the proposals for ensuring a wide range of publicity on new structures as soon as practicable after passing its resolution to operate its executive arrangements. In most cases this will be information that follows a high profile campaign of informing the public of the proposed changes and actively seeking their views on how best to carry them out.

2.6  Referenda following petition and the power of the Secretary of State to require referendum (S14 and 15)

  The draft bill states that:

  The Secretary of State may by regulations make provision requiring a local authority which receives a petition.

    (a)  signed by not less than 5 per cent of the local government electors for the authority's area, and

    (b)  requesting a referendum on whether the authority should operate executive arrangements under which the executive takes the form specified in either section 2(2) or (4),

to hold such a referendum in such circumstances as may be prescribed in the regulations.

  And also that:

  The Secretary of State may by regulations make provision enabling him, in such circumstances as may be prescribed in the regulations, to require a local authority to hold a referendum on whether they should operate executive arrangements under which the executive takes one of the forms specified in section 2(2) or (4).

  While the council recognises the need for these requirements to be put in place it would clearly be a failing on the Local Authority not to lead this debate on new democratic management.

  Clause 16—Guidance. Very difficult to comment without seeing it.

2.7  General points raised on the bill (and the document Local leadership local choice)

  Clause 22—Referendums should not be limited to every five years if the LA wishes to hold advisory referendums on local matters.

  Clause 23—Regulations. These must cover a re-drafted 2.101 Local Government Act 1972.

  Generally—Points from consultation document not in the Bill.

    —  Paragraphs 2.1 and 2.7 implies much wider consultation on forms of executive than in Clause 10(3) of the Bill.

    —  Paragraph 3.15 implies that scrutiny work will be limited to scrutinising the work of the executive. Scrutiny should cover all council functions including regulation functions. It would make sense for regulatory functions to form part of the work of the executive (see paragraph 3.10).

    —  Paragraph 3.18 implies that scrutiny committees would not have delegated authority from the full council. From where will their powers be drawn?

    —  3.59—Executive to provide reasons for its decisions. Will guidance/regulations cover this?

    —  3.62—This paragraph suggests that the executive may not follow officer advice due to political considerations. This could lead to potentially unlawful decisions and would need very careful guidance if the advice is given by a statutory officer. Otherwise a S.151 or monitoring officer report could be issued.

    —  3.64—Failure to properly record a decision being a criminal offence. Who would be liable under the criminal sanction? Does it include the monitoring officer or other officer or will it be limited to councillors? How will the criminal offence be enacted?

    —  3.69—Guidance must cover the exercise of the Mayor at veto and an acceptable form of reasons.


  3.1  Clause 27—Should include a provision for public consultation on the local code—how else can an LA establish what is right and what is wrong in the eyes of local people with whom confidence should be maintained.

  Clauses 32-36—Generally acceptable but could be very time consuming if there is no filtering process ie need to avoid a repeat of years of Westminster investigation. Guiding principles on the conduct of investigation would assist.

  Clause 37—What legal powers can the local authority use to suspend councillors? And from what? Guidance is needed on when suspension is likely to be invoked.

  Clauses 40 and 41—This seems strange and cumbersome. Why not extend the jurisdiction of an existing Court or Tribunal and maximise existing expertise and judicial appointments? What is the status of a decision by a body corporate?

  Clause 42—Should include a discretion for a local code based on a national one. Many LA's have "localised" the national LGIU model.

  Generally—points from consultation document:

    —  Member/officer protocols are missing.

    —  4.18 Covers the role of the monitoring officer. This is not in the Bill.

    —  Relationships with the Police and the Ombudsman are not covered in the Bill.

    —  4.29—Should be in the Bill.

    —  4.36—Censure by the Adjudication panel is not covered in the Bill. What is its status?

20 May 1999

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Prepared 11 August 1999