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


APPENDIX 64

Memorandum by the County Council Network

  1.  CCN welcomes the innovative consultative process of publishing the Bill in draft form (para 2).

  2.  Counties have already made substantial progress towards modernising their structures. While there are changes we want to see in the draft proposals, they represent an opportunity to continue this process. We are committed to modernisation as the key to democratic renewal and to playing our part to make reform successful. However, we agree with the Select Committee that without radical reform of finance, the aims of the White Paper will not be achieved (paras 3-6).

  3.  These reforms can also only succeed in revitalising local democracy if there is real flexibility for councils with their communities to evolve their own structures. We support the LGA's view that a fourth model, the improved committee system, may in some cases better meet the objectives of change and that this, with other possible models, should be permitted for in the legislation (paras 7-8).

  4.  Local ownership can only happen if there is local discretion on what to call the new political structures. Flexible names should extend to the models themselves and the "elected mayor" model in particular. This would also serve to overcome the real problem of potential confusion over terminology and roles. It would also help to promote community leadership (paras 9-11).

  5.  There must be scope for diversity and sufficient flexibility to accommodate it. The elected mayor option in the consultation paper seems the default option yet few councils are likely to present it. The impression is that the unitary metropolitan authorities are primarily being addressed yet almost half of England's population lives in two/three tier areas (para 13).

  6.  Authorities should be encouraged to undertake a baseline evaluation of current structures (para 14).

  7.  There is enough flexibility in the provisions of the draft Bill for councils to craft a locally owned structure, provided that there is minimal use of the secondary legislation powers contained in the Bill. The LGA should be involved in the drafting of any secondary legislation (para 15).

  8.  The draft Bill proposes measures for local government which are in some ways too alike and in others too dissimilar from the Westminster model. Many aspects of the new arrangements could produce tensions. Further consideration should be given to these matters in consultation with the LGA (para 16).

  9.  CCN supports the stress on open consultation with local people and the intention to let each council decide how to consult. We have already shared good practice on engaging local people with our member authorities. Counties have been proactive in developing a range of community consultative techniques (paras 17-18).

  10.  There are a number of important aspects about the referendum for elected mayor which need to be subject to further discussion with local authorities. There is a case for the Secretary of State's powers on electoral matters to be given to an independent electoral commission. The Bill should be used to clarify the powers of councils to hold referenda on other matters at their discretion (para 19-20).

  11.  Legislation should be introduced as soon as possible since there is evident diseconomy in councils developing systems for both a pre and post legislative environment (para 21).

  12.  The success or failure of the new local governance will hinge on whether all councillors feel they have a powerful role, but the paper is disappointingly light in identifying meaningful roles for non executive councillors (para 22).

  13.  The Bill should strengthen the community leadership role of councils by including a new duty of promoting the well-being of the area if not already enacted (para 23).

  14.  The key parameters for each of the three models give sufficient flexibility to accommodate local circumstances provided these basic requirements are not added to, and provided an improved committee model could be used where it better meets the objectives of modernisation (para 24).

  15.  The overview and scrutiny committee concept could strengthen the democratic leadership of councils if powers to require attendance are extended beyond the restrictive areas currently proposed, to include various categories of publicly funded agencies (paras 25-26).

  16.  The respective roles of county and district authorities in joint scrutiny exercises need to be agreed. Such joint scrutiny could extend to a regional area. The aims of Modernising Government can best be met by establishing a more powerful infrastructure for local authorities to take the community lead (para 27).

  17.  The small amount of space devoted to locality arrangements and decentralised structures is disappointing although we support the view that these are for each council to decide. We would welcome the opportunity to increase the profile of local councillors by measures such as flexible local budget allocation. There needs to be more discretion and flexibility in areas such as the composition of local and joint committees. The Code of Practice on Publicity should be reviewed (para 28).

  18.  CCN supports the idea of a small executive but considers that the proposed maxima are unnecessarily limiting. Local authorities should be allowed to determine the size of their own executive. Flexibility here would particularly help in problematic situations where there is no overall control (para 29).

  19.  Almost half of county councils currently have no overall political control. The structure within which the new constitutions are drawn up must be able to provide for every eventuality. Balanced councils may also be as legitimate an outcome of the reforms as the introduction of a majority party executive. Where parties might have difficulty in agreeing the formation of an administration, it would help to have a stipulation that, unless otherwise agreed by council by simple majority vote, appointments should be made on a politically balanced basis (paras 31-33).

  20.  Normally the executive will give specific portfolios to individual cabinet members. County experience so far of the cabinet system is that full use needs to be made of deputies and delegation to officers. Scrutiny machinery has a vital role in ensuring that strategic thinking is not lost in this approach (para 34).

  21.  We support the government view that formal co-options by executives should not be permitted (para 33). DFEE and DETR must clarify that education co optees do not have the right to be on the executive.

  22.  Effective and timely information is a crucial issue for councils operating the new arrangements. Experience of new decision making mechanisms suggests the need for new systems for information management and retrieval. The paper underplays the significance of modern technology to promote this. There could be problems in ensuring that a record is made of executive decisions and that an audit trail is identifiable. We ask the government to seek the views of the LGA and Audit Commission on these matters (paras 36-8, see also appendix one).

  23.  Whether or not advice from officers should be published is sensitive. Scrutiny requires information to be in the public domain, but many would oppose publication of all officer advice, as inadvisable and impracticable. Requirements to publish could make contentious strategic decisions more difficult. More detailed discussion of the implications should take place between government, the LGA and perhaps the Audit Commission before this issue is determined (para 39).

  24.  CCN supports the government's intention to leave councils to decide for themselves what processes they need to put into place for the resolution of differences and budget setting (para 40).

  25.  We strongly back the government view that financial support for councillors must reinforce the culture of the modern council and that councils should decide locally their level of allowances with recommendations from independent panels. Many of our member authorities have either brought in new systems of allowances to match new political arrangements or are preparing to do so. The legislation should confirm the ability of local authorities to pay a carer's allowance to members (para 41).

  26.  We welcome the indication we have received that the possibility of payment of pensionable salaries will apply to executive positions in the leader and cabinet model where adopted (para 42).

  27.  We urge that the promised review of the travel and subsistence scheme be undertaken and implemented as soon as possible. The current scheme is anomalous, prescriptively rigid, and inadequate. Bringing travel and subsistence allowances into the modernising framework will benefit all councillors (para 43).

  28.  We agree that, in general, councillors should not be involved in the appointment of officers below a certain level but flexibility is required to enable councillor involvement in key appointments. Similar employment protection as exists for Chief Executives should also be afforded to the Monitoring Officer and s151 Officer (para 44).

  29.  For changing the new constitution, a balance must be struck between a precise understanding of the new procedures and sufficient flexibility to be able to adapt in the light of experience (para 45).

  30.  Counties are committed to working to achieve the objectives of the proposed legislation. We outline here constructive suggestions for improving the proposals to make implementation more effective. We must create processes that are locally owned, robust, detailed, and which enable all councillors to feel they have a powerful role. For this, local choice and flexibility is essential (para 46).

About the County Councils Network

  1.  The County Councils Network (CCN) is a Special Interest Group within the Local Government Association (LGA), with all 35 English County Councils in membership. The County Councils Network exists to promote the voice of counties within the LGA and the values and interests of the English Counties. This response, (which confines itself to those sections of the Government's consultation paper and draft Bill concerned with new political management structures), and which was approved at the CCN's Executive Meeting on 19 May, is intended to help inform the LGA's submission to Government on behalf of all local authorities, and is also being sent separately to the Department of the Environment, Transport and the Regions on behalf of all English County Councils.

CCN Welcome for this Innovative Consultative Process

  2.  The CCN particularly welcomes the innovative consultative process undertaken by the Government in publishing the Bill in draft form with a detailed accompanying paper, and the evident intention to encourage the widest possible consultation before the Bill is finalised. We echo the LGA's aspiration that the final form of the Bill will benefit greatly from this process of consultation and we welcome this opportunity to make constructive comment with the hope these comments will be taken into account as the Bill is progressed.

Counties and Modernisation

  3.  County Councils have already made substantial progress towards modernising their structures, both under the earlier impetus of local government reorganisation and as a response to the Government's plans to reform and modernise local government. Whilst there are changes we wish to see in the draft proposals, we generally see these as an opportunity to take forward matters which have already been initiated by individual County Councils ahead of legislation.

  4.  Counties such as Bedfordshire, Cumbria, Dorset, Somerset and Suffolk figure prominently in the LGA's recently published Leading the Agenda: case studies of new political management arrangements. Hertfordshire is currently in the process of agreeing new political structures. Norfolk is planning for the progressive introduction of a cabinet and leader model this year. East Sussex is planning to introduce a leader and formal cabinet structure (comprising only members drawn from the two party joint administration) and a shadow cabinet on a pilot basis with effect from 18 May. Northamptonshire has had a non executive cabinet since May 1998. Derbyshire has decided to adopt the cabinet system and a scrutiny committee has been established. Kent has introduced an advisory and select committee form of topic scrutiny committees and is introducing direct scrutiny of the cabinet. Worcestershire as a new authority established only a year ago, is an example of a post reorganisation authority that has already incorporated key elements of the modernisation agenda into its organisational arrangements (including one of the first Standards and Ethics Committees), and is now exploring options for new political structures. These are just some of the examples of ongoing work in the counties found in our recent CCN survey and such is the current pace of change that we are already on our next regular survey update.

  5.  County Councils are thus committed to playing their part in the Government's objective to modernise as the key to renewal and reform, not only as expressed in these specific proposals, but also within the Government's overall modernisation programme as set out in its March 1999 White Paper Modernising Government. We are also committed to drive forward the five key commitments set out in Modernising Government—forward looking policy making, responsive public services, quality public services, information age government, and valuing our public service. In meeting these objectives we also aim to address the Minister's five challenges (expressed at the LGA conference) to modernise, change, improve accountability, build more trust and engage more effectively with the public. We are heartened that Modernising Government itself recognises the need to encourage partnerships in service delivery in ways that fit local circumstances, that is, the importance of local choice.

The link between local finance and democratic accountability

  6.  There has to be a cautionary note about finance however. We are of the view that the Government's expectation of the benefits from modernising structures and decision making will not be realised whilst local authorities continue to be constrained by the various financial limits and controls that are in place. This very point was made in the Select Committee's Eighth Report on Local Government Finance (May 1999), which states that without a more radical reform of local government finance, the aims of the White Paper will not be achieved and will not contribute to improved local accountability.

The Importance of Local Ownership of New Political Management Structures

  7.  This consultation paper is called Local Choice. In our view the second condition for these reforms to success in their aims of revitalising local democracy (para 1.21), is the provision of real flexibility for councils with their communities to grow and evolve their own structures, and thus own them locally. We support the stress placed in Chapter Two of the consultation paper on the direct engagement of those communities in the debate and discussion about the options for change (para 2.1). A number of our member Councils have already commenced consultation processes with their local communities on changes which are being proposed.

A fourth Model—Improved Committee System

  8.  We support the view of the Local Government Association that, while the introduction of a separate executive offers the potential to improve existing arrangements, it may not suit the wide variety of different local authority types and circumstances that exist, and that a fourth model, based on an "improved committee system" may better secure the objectives of change in some cases. We hope the legislation can provide accordingly where this can be demonstrated to better meet the objectives of change than the three models set out in the consultation paper. Such openness should also extend to other possible models which may be developed, such as, for example, one based on a radically decentralised approach to political decision taking.

Extend this Flexibility to Terminology—including "Mayor"

  9.  Authentic local ownership can only come about if councils and their communities can choose what to call their new political structures. In many cases they may choose to call them by the names identified in the draft Bill, eg Overview and Scrutiny Committee, but in other cases they may prefer to create titles more relevant and meaningful to the local community. For example, an authority may wish to call its scrutiny committee/s "performance review" committee/s, and it should be made clear that this would be an acceptable decision. Scrutiny and overview potentially comprises at least three different functions: scrutiny of performance of operation; holding executive to account; and the power of initiative or policy development. We believe that by giving councils discretion in their choice of title, they will be able to stress the breadth of the activity. The objective that lies behind the establishment of such a committee is to provide effective and accountable scrutiny of the decisions of the executive. We consider that there should be flexibility to name the committee in a manner that makes this meaningful and accessible to the community. We understand that there is nothing in the Bill as currently drafted which would prevent this, but would welcome clarity on the matter.

  10.  However, we would go further than this. We consider that this flexibility of nomenclature should extend to the three models themselves, and most especially, the elected mayor model. There is interest in some quarters of our membership in the possibility of adopting the elected mayor model, but it will have less appeal if there is insistence on the title of Mayor. There is concern about the rigid use of this title on two counts. Firstly it is considered to relate more to urban unitary areas than the two tier mixed urban/rural localities. Secondly, in many shire areas the title of mayor is well established and associated in the minds of citizens with a civic and ceremonial role. We believe that the flexibility to call things by locally chosen names should extend to this and the other models also. The acid test should be the results of the consultation with local people; names must make sense to them and should determine what the leadership of an authority is called. It should be possible, for example, to have a referendum on the "elected mayor" option but call it elected "prefect", "president", "leader", and so on.

Potential Confusion over Mayor

  11.  This flexibility we ask for, as well as facilitating much more likelihood of exercising real choice among the three presented models for the counties, would also serve to overcome the real problem of potential confusion over terminology: "mayor" referring to ceremonial and leader roles, and in the two/three tier context, potentially to a number of individuals within the same area. Such an innovation would serve to stress the forward-looking nature of the new structures.

Shared Community Leadership Approach

  12.  In a number of cases counties are working closely with their districts on a joint approach to this issue and envisage a joint consultation process with the public. We need to be able to use titles that will be meaningful in the context of a shared three-tier community leadership approach to creating a new local political leadership structure. Being forced to consult on the terminology of "elected mayor" would act as a disincentive to real consideration of this structural option. This would be a lost opportunity as it would serve to inhibit the possibility of introducing a model that may be no less relevant in counties than in urban unitary areas, but for which there are likely to be relatively few takers.

Models for two/three tier non met areas

  13.  It is important that the Government shows it understands and appreciates the variety of councils we have in England, and creates sufficient flexibility within the new legislation to accommodate this. Because the consultation paper concentrates very much on the option of the elected mayor it can appear that this is seen almost as the "default" option, yet the evidence so far suggests that relatively few councils of any kind will actually present this option. The impression is sometimes given that the document is primarily addressing unitary metropolitan authorities. In fact, around half of England's population lives in counties with a two/three tier local government structure and a mixed rural/town aspect. We welcome the Minister's assurance at the recent LGA conference on the draft Bill that this variety of situations is understood, including that of rural geographically dispersed populations, and that non-metropolitan two/three tier county and district councils will have the room they need within the models to come up with local and appropriate solutions. We welcome the openness to consider possible other models if they are presented, provided they fit the basic criterion of the separation of executive powers. This responsiveness to the diversity of our system is essential.

  14.  Given the explanatory nature of the changes which are being proposed, there could be merit in encouraging authorities to undertake some baseline evaluation of their current structures first, before embarking on wholesale change. All good experiments have a control element, and we believe that this would also be beneficial in the context of the modernisation of the democratic structure. This could facilitate subsequent evaluation and adjustments to the political structures in the light of experience. The County Councils Network would be willing to offer support through the Local Government Association to such an exercise.

Avoiding Over Prescription—minimal use of secondary legislation

  15.  The County Councils Network considers that in broad terms there is probably enough flexibility in the provisions of the draft Bill itself to give councils sufficient scope to craft a locally owned structure. However, we believe that this will only be the case if very sparing use is made of the substantial and wide ranging powers contained in the draft Bill for the creation of secondary legislation in the form of regulations, guidance and similar measures. We question whether such sweeping reserve powers are in fact required, and would certainly look to the Government to minimise their use of such measures (for example the issue of guidance under Clause 16). The sparing use of these powers is considered necessary to counter or minimise the perception that, in contrast to the Hunt Bill, these changes are imposed from the top down instead of being initiated at the grass roots, ie a bottom up approach. We would urge that the LGA be involved in the drafting of any guidance, regulations or similar measures proposed by the Bill.

The Westminster Model

  16.  Some of the academic analysis of the draft Bill has focused on the ways in which it promotes systems of local government which are based on the "Westminster Model", whereas in fact there are many constitutional features of local government which are profoundly different from that model. Other critiques point to the ways in which the models proposed for local government are not sufficiently like the Westminster model, for example, the lack of sufficient constitutional separation of the scrutiny function from those activities being scrutinised; the lack of control over policy making; and the possible conflicts of interest for officers, who will owe a duty to the whole council, both executive and scrutiny functions (unlike the civil service with its allegiance to the government of the day or the officers who serve Parliament). Whereas policy making is in parliamentary terms very much the function of the government (hardly any private members bills succeed), the local government model in particular needs to draw policy development into the framework for non-executive councillors. Many of these aspects of the new arrangements may well produce new tensions and conflicts and reinforce the case for periodic evaluation of the arrangements and room to adjust them as they develop. We would recommend that in consultation with the LGA, further consideration be given to these matters.

Consulting local communities and engaging the people

  17.  CCN supports the stress in Chapter Two on open consultation with local people about a range of options for new forms of local governance (2.7) and the intention to permit each council to determine for itself the methods of consultation which are appropriate for particular issues and local circumstances (2.8). We do not consider guidance necessary on this matter. We are aware, however, following consultation with our member authorities, that there is a significant challenge in engaging the public imagination and interest in the new governance. Quicker and more transparent decisions could for example be a selling point. The CCN has already engaged in some best practice sharing amongst its member authorities to assist responses to this particular challenge.

  18.  Counties have been particularly proactive in developing a range of community consultative techniques as part of their commitment to engage more with the public. Cornwall has recently carried out its largest ever consultative exercise, involving 202,000 households (confirm details) and may use a similar exercise to bring the governance options into the public consciousness. A number of authorities have indicated that they may seek to link the consultative process into other existing consultation mechanisms. Various counties are using citizen's panels. One such example is Wiltshire's People's Voice, whereby 4,000 people in the 19 community areas are regularly consulted on issues in a joint exercise involving also the district councils and health authority. These kinds of ongoing consultative processes are available to help engagement with local people over the political governance arrangements and can of course be supplemented as necessary. In identifying these case study examples, we wish to highlight that prescription on mechanisms for consultation would not be welcomed by our member authorities since they are seeking the flexibility to develop existing measures to implement the requirements of the Bill. The County Councils Network has offered to support its members by acting as a vehicle for the exchange of good practice.

Local Referendums

  19.  We consider the trigger percentage of 5 per cent of voters (para. 2.12) is an acceptable level for the petitioning of councils for a referendum on whether a directly elected "mayor" structure should be adopted. The draft Bill, however, says nothing about an acceptable level of turnout required for a referendum, although a number of other aspects of a referendum under this Bill are mentioned in Clause 22 for which the Secretary of State may make provision in regulations. We consider that the level of turnout and related details, such as the kind of voting method permitted need to be the subject of further dialogue with local authorities before regulations are drafted. In making this assertion we believe that it is most important that the process is not brought into disrepute and seen by the public as a waste of time and money. There is a case for the Secretary of State's powers on electoral matters to be given instead to an independent electoral Commission to preserve the objectivity of the process. We would wish to recommend that detailed consideration be given here since we believe that public confidence would be considerably heightened if electoral issues were the responsibility of an independent Commission (possibly the Local Government Commission) rather that being reserved to a Minister.

  20.  Finally, the Bill would be a good opportunity to clarify the powers under which local authorities can hold referenda other than the referendum for an elected mayor. Referenda on other issues held by local authorities have been well publicised recently, and it is not helpful for their status to be of an uncertain legal standing. It would seem in keeping with the objectives of the Bill that referenda on key local issues could be held from time to time and that local authorities use their discretion in how and why they exercise this power. This must be a matter of local choice.

Timetable for the Legislation and Implementation

  21.  The CCN hopes that the legislation can be introduced within the next session of Parliament and can become law as soon as possible thereafter. Virtually all our member authorities have begun to engage in the process of implementing some version of the Bill's provisions and a significant number are well advanced. It would greatly minimise doubt and the need for elaborate planning for pre- and post-legislation structures if we could be confident that the provisions will become law within the next year. There is evident disutility in councils seeking to develop systems which can be operated in both the pre-and post-legislative environment.

Strong Leadership for Communities, Powerful Roles for All Councillors

  22.  We consider that the success or failure of the new local governance will hinge on whether all councillors come to feel they do indeed have a powerful role, whether or not they are a member of the council's executive (3.1). The consultation paper is disappointingly light in identifying meaningful roles for non-executive councillors. The opportunity is being missed to strengthen the community leadership role of the council and councillors via, for example, increasing the scope of the Overview and Scrutiny Committees and strengthening the arm of the local councillor by giving powers to create locality budgets not subject to the current proportionality rules. This matter is considered further below.

  23.  The Bill should also strengthen the community leadership role of councils by including a new duty on local authorities to promote the economic, social and environmental well being of their area, if this has not previously been enacted. We believe that this duty is vital to empowering elected councillors in their role as community leaders.

The Key Broad Parameters of the New Constitutions

  24.  The key parameters for each of the three models, as set out in 3.6 and as set out in the draft Bill itself, give sufficient flexibility in our view to accommodate local circumstance, provided that these basic requirements for roles and relationships between the constituent elements of the new council governance are not added to in secondary legislation. We welcome the assurance (in para 3.7) that within these parameters a council's new constitution is to be a matter of local choice.

Overview and Scrutiny Committees

  25.  We take seriously the view that councils provide democratic leadership for their communities and consider that the overview and scrutiny committee concept provides an opportunity to strengthen this function. We note that whereas members of the executive and officers can be required to attend meetings of the overview and scrutiny committees, all others can only be invited (para 3.22). A special category of "other" to whom further consideration should be given comprises those agencies which are publicly funded. Where agencies have a direct funding relationship with the council, there should be an expectation that they be required to attend. We hope that this could also be extended to other publicly funded bodies which operate locally, such as the police and health authorities, for whom there should be a strong expectation if not an actual legal requirement for attendance.

  26.  In the case of those bodies which are publicly funded but are operated on a quasi-autonomous basis (eg RDA's and TEC's) there might be an expectation but not necessarily a requirement to attend. Furthermore we would like to see a power to require attendance of others, such as bus companies, where grant aid or other funding has been provided by the council in full or in part. The community leadership function of local authorities could be considerably strengthened if they had the power to examine, for example, the adequacy of flood protection arrangements by calling in drainage committees, or could institute other forms of local enquiry. This might be particularly pertinent in areas where services are provided on a cross-service or inter-agency basis, for example, crime and disorder, economic regeneration, and lifelong learning.

  27.  CCN realises that in all areas of local government, but perhaps particularly in two/three tier areas, it is especially important to agree the respective roles of county and district authorities in the scrutiny process if potential lines of enquiry are widened in a manner compatible with fulfilling a community leadership role. Strengthening this role for councils could in fact incentivise such a development. We consider that such joint scrutiny could extend to a regional as well as a county-wide area. We would urge the Government to identify opportunities for such joint scrutiny since these could provide an effective mechanism for the promotion of joined up service delivery. The whole thrust of Modernising Government is to stress the importance of joined up strategic policy making and an ever better quality in public service. These aims and the seamless partnerships they necessitate can best be achieved by establishing a more powerful infrastructure for local authorities to take the community lead as suggested above.

Area Committees and Decentralised Structures

  28.  We are disappointed that so little space (two paragraphs, 3.26 and 3.27) is devoted in the consultation paper to discussing locality arrangements and decentralised structures, although we support the paper's view that decentralised structures are a matter for each council to decide upon in the light of local circumstance. The non-executive councillor's enhanced role as a community representative is made much of, but current legislation is quite restrictive and there appear to be no plans in these proposals to change this. For example, it prevents any experimentation in giving individual local members budgets to spend locally. We would welcome the chance to increase the profile of local representative councillors by measures such as flexible local budget allocation and would seek opportunities for different locality arrangements. There is also a need to review the Code of Practice on Publicity, since these current rules about using resources to support publicity for one or another political group, and for individual councillors, now need revisiting in the light of the Government's intention to raise the profile of local councils by giving individual councillors a higher personal profile. Current proportionality requirements for such matters as joint county and district committees can be burdensome and do not sit well with the drive to streamline committees and decision processes. We consider that there is a need for more discretion and flexibility, and we hope that all these areas can be looked at again. We consider that such changes would be consistent with promoting a powerful role for all councillors but may require some enabling adjustment to the statutory functions assigned to the executive so that some decisions may be taken locally by non-executive members.

The Size of the Executive

  29.  We support the concept of a small executive but consider that the intention to prescribe maxima expressed as 15 per cent of the council or ten members to be unnecessarily limiting (para 3.36). Local authorities should be allowed to determine the size of their own executive. We are aware from experience amongst our member authorities that this can be a particularly problematic issue in a council with no overall control and where there can be shifts back and forth between two and three party executives. Additional flexibility to promote a multi-party approach would be helpful. The stipulation that the cabinet must be the lesser of 15 per cent or ten members can lead to awkward numbers of fewer than ten for the purposes of achieving an acceptable balance of seats in the no overall control situation. In the light of existing experience, further consideration needs to be given to this matter to provide greater flexibility than the form of numbers currently prescribed.

  30.  Attention is drawn to the general outcome of the Local Government Commission's electoral reviews, which tend to result in the creation of more councillors. This obviously has an impact on the proportions of executive to non-executive councillors. The DETR therefore needs to be mindful of this trend. Clarification of the timetable for the implementation of biennial elections would be useful.

Members of the Executive—the Importance of Providing for Councils with no overall control

  31.  Almost half of all county councils currently have no overall political control. In light of this, we consider that it is most important that the structure within which the new constitutions must be drawn up can provide for every eventuality, including situations where it is difficult for the three or more parties to reach agreement about the composition of the executive.

  32.  The language in para 3.38 of the consultation document seems to envisage a majority party executive or perhaps a "coalition" of two parties, but this does not describe the reality for a significant number of county councils and indeed other types of authority. It is too sweeping to say that the executive would not normally reflect the authority's political balance (3.38), unless to underline the fact that the executive principle departs from the politically balanced rules presently in operation. The emphasis in this paragraph should reflect instead that "balanced" council executives might also be as legitimate an outcome of the reforms as the introduction of a majority party executive.

  33.  In particular we think that provision needs to be made for a default situation where, for example, three balanced parties might have difficulty in agreeing who is to form the ruling block following an election. This difficulty could be met by a stipulation that, unless otherwise agreed by council by simple majority vote, appointments should be made on a politically balanced basis. This could overcome the problems councils have experienced in a post election period of confusion in trying to form a stable administration. We believe that clarifying of these matters is important to enable local authorities to provide effective community leadership.

Individual Portfolios for Executive

  34.  We agree with the principle that normally the executive will give specific portfolios to individual cabinet members (para 3.38). The experience of counties already operating a form of cabinet system is that individual cabinet members are making large numbers of important decisions involving significant proportions of the budget. These individuals tend to have large portfolios and need to make full use of both their deputies and substantial delegation to officers in order for the system to operate effectively. We do have some concern that the sheer size of these executive portfolios will preclude talented people who can only devote a certain amount of time from participating in the executive. Cumbria's pilot executive is finding it essential to have individual portfolios within the cabinet. Other authorities such as East Sussex, which are keen to achieve a modern "joined-up" strategic approach, have agreed to cabinet members having individual thematic cross-cutting portfolios in relation to such issues as social inclusion, sustainable economic development and community safety. There is also a significant role for the scrutiny machinery to ensure that strategic and joined-up thinking is not lost in the overall individual portfolio approach. The Bedfordshire system has a three dimensional matrix of service issues, thematic cross cutting issues, and community, all three elements are considered to be needed. It might be beneficial to clarify these matters but without resorting to prescriptive guidance.

Co-option to Council Bodies

  35.  The CCN supports the Government's view that legislation should prevent formal co-option by the executive (para 3.45). However, there is a potential problem concerning the position of education cooptees and their relationship to the executive which needs urgent attention. The current draft DFEE circular seems to suggest, according to some legal opinion, that education representatives (church and parents) must be allowed to sit on the executive committee. This would increase the size of the committee by, for example five in one authority, and would lead to the administration being outvoted on educational matters. It would also make it impossible to live within the limits of the numbers proposed for cabinets. The DFEE, in consultation with DETR, needs to clarify as a matter of urgency that education co-options do not have the right to be on the executive.

Meetings and Access to Information

  36.  The provision of effective and timely information is turning out to be a crucial issue for councils operating a form of the new arrangements. Devising procedures and processes to ensure that decisions are taken in an open and accountable way will be a vital part of the new system (para 3.59). There will be substantial implications for the role of chief executives, particularly in relation to that of political advisers. Experience from our member authorities is showing that the new mechanisms for decision-making have the potential to require new systems for information management and retrieval.

  37.  We foresee problems in ensuring that a defensible record is made of all executive decisions (3.59). The current system, whatever its drawbacks, has well understood processes and mechanisms for recording decision taking. Unless adequate systems are put into place, there is a danger that decisions under the new arrangements can emerge without a suitable "audit trail" being identifiable. The importance of this issue and the difficulties, which may arise, are underplayed by the consultation paper. There appear to be no sanctions which are practicable in the event of non or inadequate recording of decisions, despite the intention to create a criminal offence for failure on the part of an individual to create a proper record or on the part of the monitoring officer to make such a record available (para 3.64). It will be up to councils to develop new ways of minimising these potential problems by developing clear protocols for audit trails. We assume that this is a matter in which the Audit Commission will wish to take an interest and we would ask the Government to seek the views of both the LGA and Audit Commission on this matter. The CCN believes that much more detailed discussions need to take place before this issue is determined. A more detailed technical note on access to information is attached to this response as Annex 1.

  38.  It is accepted that in support of many of these modernising changes will come with more widespread use of modern technology. The admissibility of data in the form of emails and other modern methods of communication needs to be considered in greater depth. The consultation paper makes insufficient acknowledgement of the significance of these trends.

The Publication of Advice from Officers

  39.  The issue of whether or not advice from officers should be published (paras 3.62-3.63) is recognised as a sensitive matter. On the one hand, the scrutiny function requires certain information to be in the public domain to enable decisions to be challenged, for open and accountable government to operate, and a proper audit trail to be established. There are also the requirements of the access to information legislation. On the other hand, many consider the publication of all officer advice to be inadvisable and impracticable, and would oppose this being made a requirement rather than an option. There are also practical issues concerning the definition of "advice" and precisely what might need to be made public; would it include the reasons behind advice for example? This is an extremely sensitive subject which is likely to bear on the most contentious issues facing an authority, particularly ones concerning planning and development. A requirement to publish is likely to make contentious strategic decisions more difficult to make and much more subject to interest group pressures; eg housing land allocation, mineral waste planning and so forth. It is interesting to note that the proposals for London follow the civil service model, that policy advice from officials is confidential. It is difficult to understand why the approach being taken in relation to regional assemblies is different from that for local authorities. It is considered that far more detailed discussion needs to take place between the Government, the LGA and perhaps also the Audit Commission before this issue is determined.

Resolving Differences

  40.  The CCN supports the Government's intended approach of leaving councils to decide for themselves what processes they need to put into place for the resolution of differences and budget setting (paras 3.70, 3.71 and 3.72-3.76).

Support for Councillors

  41.  We strongly support the Government's general view that the financial support for councillors must reinforce the culture of the modern council (para 3.78). We believe that councils should decide locally their level of allowances with recommendations from a local independent panel (Para. 3.81). A number of county councils including Somerset, Dorset, Cumbria, Bedfordshire, Kent and East Sussex have already taken this approach and brought in new allowances systems to match their new political arrangements. Many of our member authorities are currently reviewing their allowance schemes. The White Paper indicated that the Government would confirm the ability of local authorities to pay a carer's allowance to members and we consider that this provision should be written into the legislation.

Pensionable Salaries

  42.  CCN has received an indication from DETR that the possibility of payment of pensionable salaries (para 3.79) will apply equally to executive positions in the leader and cabinet model if adopted, and welcomes this intention.

Travel and Subsistence

  43.  We know it is the Government's intention to review the operation of the travel and subsistence allowances schemes and we urge that this review be undertaken and completed as soon as possible. There is something profoundly anomalous now about the prescriptive rigidity of the rules for these centrally determined allowances. Bringing them into the modernising framework would benefit all councillors. We hope that the DETR and the LGA will make speedy and satisfactory progress on this issue.

The Role of Officers

  44.  We have earlier referred to the potential for conflicts of interest for officers whose duty will cover council, scrutiny and executive functions. Perhaps unlike smaller councils, very substantial delegation to officers (para 3.85) is already a characteristic of county council culture. We agree that in general councillors should not be involved in the appointment of officers below a certain level, but it is too sweeping to declare that they should not be involved in any appointments below "chief officer" and deputy level (para 3.84). There has been an increasing trend in recent years for a delayering in management structures. This has meant that many key posts are outside the technical definition of "chief officer" and deputy. In many cases it may be appropriate and indeed desirable for members to participate in the recruitment to such posts. It is acknowledged, however, that were this to be the case then the principles of ensuring appropriate use of councillor's time and of objectivity in selection need to be fulfilled. Flexibility is required here to enable councillor involvement where deemed appropriate in appointments which may be technically below chief officer level. It is important that personnel decisions (appointments and dismissals) are not made on a political basis. Similar protection as exists for Chief Executive should be afforded to the Monitoring Officer and s151 Officer.

Changing a new Constitution

  45.  A balance needs to be struck between the need for constitutionality and precise understandings of the new procedures, which implies a detailed constitution, and the need to keep enough flexibility to be able to change in the light of experience without triggering overmuch use of time, paper and bureaucracy.

Conclusion

  46.  County Counties are committed to working to achieve the objectives of the proposed legislation. We have outlined in this paper a number of constructive ways in which we think the legislative proposals could make its implementation more effective. Councils will have to give a great deal of thought and care to creating processes which are locally owned, independent, sufficiently robust to wear with time, and yet sufficiently detailed to provide a workable framework. Above all, we must be able to make a reality of the statement that all councillors will feel they have a powerful role. For this, local choice and flexibility of the kinds outlined above is essential.

Annex 1

TECHNICAL NOTE ON ACCESS TO INFORMATION LOCAL GOVERNMENT (ORGANISATION AND STANDARDS BILL)

  Access to information is integral to accountability. The government has yet to draft provisions in the Bill on this topic but it is essential that basic principles are set out on the face of the Bill within which each council can decide detail procedures within its constitution.

  The principles set out at the beginning of paragraph 3.59 of Local Leadership local choice are supported and endorsed. In translating these into Bill provisions, the tested, understood and accepted scheme of the Local Government Act should be built on. The principles need to apply equally to all forms of executive and not place one in a different position to others; they need to enable executives to deliberate in private with their advisors if they so wish but ensure that councils and overview/scrutiny committees can obtain the information they need to hold the executive to account.

  To give flexibility of detailed arrangements, the existing concept of a proper officer being appointed for each responsibility by each council should be continued. As a check on executives, responsibilities should normally rest with proper officers and not elected mayors/executive members. Monitoring officers need to be satisfied with the arrangements established by each council and have a duty to report on any breach (or allegation) to Standards Committees. The key responsibilities to be imposed on officers should be:

    —  to record decisions and proposals by the executive together with a reasoned justification for each decision/proposal and a list of background documents as currently defined in the Local Government Act;

    —  to publish the decision/proposal, reason justification and a list of background documents to non-executive members of the council;

    —  to place and hold those documents on public deposit;

    —  to place a summary on public deposit when the document contains exempt or confidential information the executive wishes not to be published (there should be no ability on the part of the executive to withhold information from other council members on these grounds).

  Councils and overview/scrutiny committees on the other hand should be given an explicit right on the face of the Bill to see all documents in the possession of the Council which are required to discharge their scrutiny function. That need should be defined as not normally including the papers considered by the executive prior to its making a decision or proposal. Any dispute on the right of the council or an overview/scrutiny committee to see any particular document should be decided by the Standards Committee advised by the Monitoring Officer.

  Scrutiny Committees should retain the right of other ordinary committees to meet in private within the scheme of the present legislation on exempt and confidential information.

 





 
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